S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          558
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  Sen.  DIAZ  --  read twice and ordered printed, and when
         printed to be committed to the Committee on Health
       AN ACT to amend the public health law and the executive law, in relation
         to reporting of abuses of persons receiving care in residential health
         care facilities; and to repeal  paragraph  (e)  of  subdivision  6  of
         section 2803-d of the public health law relating to the confidentiali-
         ty of information relating to such abuses
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Paragraph (c) of subdivision 6 of  section  2803-d  of  the
    2  public  health  law,  as  amended by chapter 414 of the laws of 1986, is
    3  amended to read as follows:
    4    (c) All information relating to any allegation which the  commissioner
    5  has  determined  would  not  be sustained shall be expunged [one hundred
    6  twenty days] FIVE YEARS following notification of such determination  to
    7  the  person  who  made  the  report  pursuant  to this section, unless a
    8  proceeding pertaining to such allegation is pending pursuant to  article
    9  seventy-eight  of the civil practice law and rules. Whenever information
   10  is expunged, the commissioner shall notify any official notified  pursu-
   11  ant  to  paragraph (a) of this subdivision that the information has been
   12  expunged.
   13    S 2. Paragraph (e) of subdivision 6 of section 2803-d  of  the  public
   14  health  law  is  REPEALED  and  a  new paragraph (e) is added to read as
   15  follows:
   16    (E) (I) ALL INFORMATION RELATING TO ANY ALLEGATION  THAT  THE  COMMIS-
   17  SIONER  HAS  DETERMINED  WOULD  NOT  BE  SUSTAINED,  SHALL BE SEALED ONE
   18  HUNDRED TWENTY DAYS FOLLOWING NOTIFICATION OF SUCH DETERMINATION TO  THE
   19  PERSON WHO MADE THE REPORT. SUCH REPORTS MAY BE UNSEALED AND MADE AVAIL-
   20  ABLE  ONLY TO (A) THE SUBJECT OF THE REPORT; OR (B) A DISTRICT ATTORNEY,
   21  AN ASSISTANT DISTRICT  ATTORNEY,  THE  ATTORNEY  GENERAL,  AN  ASSISTANT
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00327-01-3
       S. 558                              2
    1  ATTORNEY  GENERAL,  AN INVESTIGATOR EMPLOYED IN THE OFFICE OF A DISTRICT
    2  ATTORNEY OR THE ATTORNEY GENERAL, OR TO A POLICE OFFICER BY THE DIVISION
    3  OF STATE POLICE, BY A CITY, COUNTY, TOWN OR VILLAGE POLICE DEPARTMENT OR
    4  BY  A  COUNTY  SHERIFF'S  OFFICE  WHEN SUCH OFFICIAL REPRESENTS THAT THE
    5  REPORT IS NECESSARY TO CONDUCT AN ACTIVE  INVESTIGATION  OR  PROSECUTION
    6  RELATED  TO  ALLEGATIONS  OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT, OR
    7  THE FAILURE TO REPORT SUCH AN INCIDENT.
    8    (II) PERSONS GIVEN ACCESS TO REPORTS PURSUANT TO SUBPARAGRAPH  (I)  OF
    9  THIS  PARAGRAPH SHALL NOT REDISCLOSE SUCH REPORTS EXCEPT AS NECESSARY TO
   10  CONDUCT SUCH APPROPRIATE INVESTIGATION OR PROSECUTION AND SHALL  REQUEST
   11  OF  THE  COURT  THAT  ANY  COPIES  OF SUCH REPORTS PRODUCED IN ANY COURT
   12  PROCEEDING BE REDACTED TO REMOVE THE NAMES OF  THE  SUBJECTS  AND  OTHER
   13  PERSONS NAMED IN THE REPORTS OR THAT THE COURT ISSUE AN ORDER PROTECTING
   14  THE  NAMES  OF  THE SUBJECTS AND OTHER PERSONS NAMED IN THE REPORTS FROM
   15  PUBLIC DISCLOSURE.
   16    S 3. Paragraph (f) of subdivision 6 of section 2803-d  of  the  public
   17  health law, as amended by chapter 340 of the laws of 1980, is amended to
   18  read as follows:
   19    (f)  [Information]  ANY  REPORT  OF  PHYSICAL  ABUSE,  MISTREATMENT OR
   20  NEGLECT, RECORD OF THE INVESTIGATION OF SUCH REPORT AND ALL OTHER INFOR-
   21  MATION RELATED TO SUCH REPORT SHALL BE CONFIDENTIAL AND SHALL BE  EXEMPT
   22  FROM  DISCLOSURE  UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW, PROVIDED
   23  HOWEVER THAT INFORMATION relating to a  report  made  pursuant  to  this
   24  section shall be disclosed under any of the following conditions:
   25    (i)  pursuant to article six of the public officers law after expunge-
   26  ment or amendment,  if  any,  is  made  in  accordance  with  a  hearing
   27  conducted  pursuant to this section, or at least forty-five days after a
   28  written determination  is  made  by  the  commissioner  concerning  such
   29  report,  whichever is later; provided, however, that the identity of the
   30  person who made the report, the  victim,  or  any  other  person  named,
   31  except  a person who the commissioner has determined committed an act of
   32  physical abuse, neglect or mistreatment, shall not be  disclosed  unless
   33  such person authorizes such disclosure;
   34    (ii)  as  may  be  required  by  the  penal law or any lawful order or
   35  warrant issued pursuant to the criminal procedure law; or
   36    (iii) to a person  who  has  requested  a  hearing  pursuant  to  this
   37  section,  information relating to the determination upon which the hear-
   38  ing is to be conducted; provided, however,  that  the  identity  of  the
   39  person  who made the report or any other person who provided information
   40  in an investigation of the report shall not  be  disclosed  unless  such
   41  person authorizes such disclosure[.]; OR
   42    (IV)  TO  A  PROSECUTOR,  INCLUDING  THE  ATTORNEY  GENERAL, WHEN SUCH
   43  REQUEST IS MADE IN CONNECTION WITH AND NECESSARY TO THE FURTHERANCE OF A
   44  CRIMINAL INVESTIGATION RELATED TO THE  ALLEGATIONS  OF  PHYSICAL  ABUSE,
   45  NEGLECT  OR  MISTREATMENT,  OR FAILURE TO REPORT SUCH ACTS. A PROSECUTOR
   46  WHO OBTAINS SUCH RECORDS SHALL MAINTAIN THEM AS CONFIDENTIAL  AND  SHALL
   47  NOT  DISCLOSE  THEM  EXCEPT  IN  CONNECTION  WITH GRAND JURY OR JUDICIAL
   48  PROCEEDINGS.
   49    S 4. Subdivision 16 of section 296 of the executive law, as separately
   50  amended by section 3 of part N and section 14 of part AAA of chapter  56
   51  of the laws of 2009, is amended to read as follows:
   52    16.  It  shall  be an unlawful discriminatory practice, unless specif-
   53  ically required or permitted by statute, for any person, agency, bureau,
   54  corporation or association, including the state and any political subdi-
   55  vision thereof, to make any inquiry about, whether in any form of appli-
   56  cation or  otherwise,  or  to  act  upon  adversely  to  the  individual
       S. 558                              3
    1  involved,  (A)  any arrest or criminal accusation of such individual not
    2  then pending against that individual which was followed by a termination
    3  of that criminal action or proceeding in favor of  such  individual,  as
    4  defined  in  subdivision two of section 160.50 of the criminal procedure
    5  law, or by a youthful offender adjudication, as defined  in  subdivision
    6  one  of section 720.35 of the criminal procedure law, or by a conviction
    7  for a violation sealed pursuant to section 160.55 of the criminal proce-
    8  dure law or (B) by a conviction which  is  sealed  pursuant  to  section
    9  160.58  of  the  criminal  procedure  law  OR  (C) ANY REPORT MADE UNDER
   10  SECTION TWENTY-EIGHT HUNDRED-THREE-D OF THE PUBLIC HEALTH  LAW  WHERE  A
   11  DETERMINATION  HAS BEEN MADE THAT THE ALLEGATION WOULD NOT BE SUSTAINED,
   12  in connection with the licensing, employment or providing of  credit  or
   13  insurance to such individual; provided, further, that no person shall be
   14  required  to  divulge  information  pertaining to any arrest or criminal
   15  accusation of such individual not then pending against  that  individual
   16  which  was followed by a termination of that criminal action or proceed-
   17  ing in favor of such  individual,  as  defined  in  subdivision  two  of
   18  section  160.50 of the criminal procedure law, or by a youthful offender
   19  adjudication, as defined in subdivision one of  section  720.35  of  the
   20  criminal procedure law, or by a conviction for a violation sealed pursu-
   21  ant  to section 160.55 of the criminal procedure law, or by a conviction
   22  which is sealed pursuant to section 160.58  of  the  criminal  procedure
   23  law. The provisions of this subdivision shall not apply to the licensing
   24  activities of governmental bodies in relation to the regulation of guns,
   25  firearms  and  other deadly weapons or in relation to an application for
   26  employment as a police officer or  peace  officer  as  those  terms  are
   27  defined  in subdivisions thirty-three and thirty-four of section 1.20 of
   28  the criminal procedure law; provided further that the provisions of this
   29  subdivision shall not apply to an application for employment or  member-
   30  ship  in any law enforcement agency with respect to any arrest or crimi-
   31  nal accusation which was followed by a youthful  offender  adjudication,
   32  as  defined  in subdivision one of section 720.35 of the criminal proce-
   33  dure law, or by a conviction for a violation sealed pursuant to  section
   34  160.55 of the criminal procedure law, or by a conviction which is sealed
   35  pursuant to section 160.58 of the criminal procedure law.
   36    S 5. This act shall take effect on the one hundred eightieth day after
   37  it shall have become a law.