STATE OF NEW YORK
        ________________________________________________________________________
                                          4878
                               2017-2018 Regular Sessions
                    IN SENATE
                                      March 3, 2017
                                       ___________
        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    § 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    14  health  law  is  REPEALED  and  a  new paragraph (e) is added to read as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
    22  attorney  general,  an investigator employed in the office of a district
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07138-01-7

        S. 4878                             2
     1  attorney or the attorney general, or to a police officer by the division
     2  of state police, by a city, county, town or village police department or
     3  by a county sheriff's office when  such  official  represents  that  the
     4  report  is  necessary  to conduct an active investigation or prosecution
     5  related to allegations of physical abuse, mistreatment  or  neglect,  or
     6  the failure to report such an incident.
     7    (ii)  Persons  given access to reports pursuant to subparagraph (i) of
     8  this paragraph shall not redisclose such reports except as necessary  to
     9  conduct  such appropriate investigation or prosecution and shall request
    10  of the court that any copies of  such  reports  produced  in  any  court
    11  proceeding  be  redacted  to  remove the names of the subjects and other
    12  persons named in the reports or that the court issue an order protecting
    13  the names of the subjects and other persons named in  the  reports  from
    14  public disclosure.
    15    §  3.  Paragraph  (f) of subdivision 6 of section 2803-d of the public
    16  health law, as amended by chapter 340 of the laws of 1980, is amended to
    17  read as follows:
    18    (f) [Information]  Any  report  of  physical  abuse,  mistreatment  or
    19  neglect, record of the investigation of such report and all other infor-
    20  mation  related to such report shall be confidential and shall be exempt
    21  from disclosure under article six of the public officers  law,  provided
    22  however  that  information  relating  to  a report made pursuant to this
    23  section shall be disclosed under any of the following conditions:
    24    (i) pursuant to article six of the public officers law after  expunge-
    25  ment  or  amendment,  if  any,  is  made  in  accordance  with a hearing
    26  conducted pursuant to this section, or at least forty-five days after  a
    27  written  determination  is  made  by  the  commissioner  concerning such
    28  report, whichever is later; provided, however, that the identity of  the
    29  person  who  made  the  report,  the  victim, or any other person named,
    30  except a person who the commissioner has determined committed an act  of
    31  physical  abuse,  neglect or mistreatment, shall not be disclosed unless
    32  such person authorizes such disclosure;
    33    (ii) as may be required by the  penal  law  or  any  lawful  order  or
    34  warrant issued pursuant to the criminal procedure law; [or]
    35    (iii)  to  a  person  who  has  requested  a  hearing pursuant to this
    36  section, information relating to the determination upon which the  hear-
    37  ing  is  to  be  conducted;  provided, however, that the identity of the
    38  person who made the report or any other person who provided  information
    39  in  an  investigation  of  the report shall not be disclosed unless such
    40  person authorizes such disclosure[.]; or
    41    (iv) to a  prosecutor,  including  the  attorney  general,  when  such
    42  request is made in connection with and necessary to the furtherance of a
    43  criminal  investigation  related  to  the allegations of physical abuse,
    44  neglect or mistreatment, or failure to report such  acts.  A  prosecutor
    45  who  obtains  such records shall maintain them as confidential and shall
    46  not disclose them except in  connection  with  grand  jury  or  judicial
    47  proceedings.
    48    § 4. Subdivision 16 of section 296 of the executive law, as separately
    49  amended  by section 3 of part N and section 14 of part AAA of chapter 56
    50  of the laws of 2009, is amended to read as follows:
    51    16. It shall be an unlawful discriminatory  practice,  unless  specif-
    52  ically required or permitted by statute, for any person, agency, bureau,
    53  corporation or association, including the state and any political subdi-
    54  vision thereof, to make any inquiry about, whether in any form of appli-
    55  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
    56  involved, (a) any arrest or criminal accusation of such  individual  not

        S. 4878                             3
     1  then pending against that individual which was followed by a termination
     2  of  that  criminal  action or proceeding in favor of such individual, as
     3  defined in subdivision two of section 160.50 of the  criminal  procedure
     4  law,  or  by a youthful offender adjudication, as defined in subdivision
     5  one of section 720.35 of the criminal procedure law, or by a  conviction
     6  for a violation sealed pursuant to section 160.55 of the criminal proce-
     7  dure  law  or  (b)  by  a conviction which is sealed pursuant to section
     8  160.58 of the criminal procedure  law  or  (c)  any  report  made  under
     9  section  twenty-eight  hundred  three-d of the public health law where a
    10  determination has been made that the allegation would not be  sustained,
    11  in  connection  with the licensing, employment or providing of credit or
    12  insurance to such individual; provided, further, that no person shall be
    13  required to divulge information pertaining to  any  arrest  or  criminal
    14  accusation  of  such individual not then pending against that individual
    15  which was followed by a termination of that criminal action or  proceed-
    16  ing  in  favor  of  such  individual,  as  defined in subdivision two of
    17  section 160.50 of the criminal procedure law, or by a youthful  offender
    18  adjudication,  as  defined  in  subdivision one of section 720.35 of the
    19  criminal procedure law, or by a conviction for a violation sealed pursu-
    20  ant to section 160.55 of the criminal procedure law, or by a  conviction
    21  which  is  sealed  pursuant  to section 160.58 of the criminal procedure
    22  law. The provisions of this subdivision shall not apply to the licensing
    23  activities of governmental bodies in relation to the regulation of guns,
    24  firearms and other deadly weapons or in relation to an  application  for
    25  employment  as  a  police  officer  or  peace officer as those terms are
    26  defined in subdivisions thirty-three and thirty-four of section 1.20  of
    27  the criminal procedure law; provided further that the provisions of this
    28  subdivision  shall not apply to an application for employment or member-
    29  ship in any law enforcement agency with respect to any arrest or  crimi-
    30  nal  accusation  which was followed by a youthful offender adjudication,
    31  as defined in subdivision one of section 720.35 of the  criminal  proce-
    32  dure  law, or by a conviction for a violation sealed pursuant to section
    33  160.55 of the criminal procedure law, or by a conviction which is sealed
    34  pursuant to section 160.58 of the criminal procedure law.
    35    § 5. This act shall take effect on the one hundred eightieth day after
    36  it shall have become a law.