S T A T E   O F   N E W   Y O R K
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                                  1802

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 12, 2009
                               ___________

Introduced by M. of A. DINOWITZ, ENGLEBRIGHT, FIELDS, MILLMAN, DelMONTE,
  HOYT,  GALEF,  GOTTFRIED,  HEASTIE,  JOHN,  MARKEY, PHEFFER, REILLY --
  Multi-Sponsored by -- M.   of A. ALFANO,  ARROYO,  BACALLES,  DESTITO,
  EDDINGTON, ERRIGO, FINCH, HOOPER, McENENY, J. RIVERA, P. RIVERA, SWEE-
  NEY,  WALKER,  WRIGHT,  ZEBROWSKI  --  read  once  and referred to the
  Committee on Aging

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:

  Section 1. Paragraph (c) of subdivision 6 of  section  2803-d  of  the
public  health  law,  as  amended by chapter 414 of the laws of 1986, is
amended to read as follows:
  (c) All information relating to any allegation which the  commissioner
has  determined  would  not  be sustained shall be expunged [one hundred
twenty days] FIVE YEARS following notification of such determination  to
the  person  who  made  the  report  pursuant  to this section, unless a
proceeding pertaining to such allegation is pending pursuant to  article
seventy-eight  of the civil practice law and rules. Whenever information
is expunged, the commissioner shall notify any official notified  pursu-
ant  to  paragraph (a) of this subdivision that the information has been
expunged.
  S 2. Paragraph (e) of subdivision 6 of section 2803-d  of  the  public
health  law  is  REPEALED  and  a  new paragraph (e) is added to read as
follows:
  (E) (I) ALL INFORMATION RELATING TO ANY ALLEGATION  THAT  THE  COMMIS-
SIONER  HAS  DETERMINED  WOULD  NOT  BE  SUSTAINED,  SHALL BE SEALED ONE
HUNDRED TWENTY DAYS FOLLOWING NOTIFICATION OF SUCH DETERMINATION TO  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03227-01-9
              

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PERSON WHO MADE THE REPORT. SUCH REPORTS MAY BE UNSEALED AND MADE AVAIL-
ABLE  ONLY TO (A) THE SUBJECT OF THE REPORT; OR (B) A DISTRICT ATTORNEY,
AN ASSISTANT DISTRICT  ATTORNEY,  THE  ATTORNEY  GENERAL,  AN  ASSISTANT
ATTORNEY  GENERAL,  AN INVESTIGATOR EMPLOYED IN THE OFFICE OF A DISTRICT
ATTORNEY OR THE ATTORNEY GENERAL, OR TO A POLICE OFFICER BY THE DIVISION
OF STATE POLICE, BY A CITY, COUNTY, TOWN OR VILLAGE POLICE DEPARTMENT OR
BY A COUNTY SHERIFF'S OFFICE WHEN  SUCH  OFFICIAL  REPRESENTS  THAT  THE
REPORT  IS  NECESSARY  TO CONDUCT AN ACTIVE INVESTIGATION OR PROSECUTION
RELATED TO ALLEGATIONS OF PHYSICAL ABUSE, MISTREATMENT  OR  NEGLECT,  OR
THE FAILURE TO REPORT SUCH AN INCIDENT.
  (II)  PERSONS  GIVEN ACCESS TO REPORTS PURSUANT TO SUBPARAGRAPH (I) OF
THIS PARAGRAPH SHALL NOT REDISCLOSE SUCH REPORTS EXCEPT AS NECESSARY  TO
CONDUCT  SUCH APPROPRIATE INVESTIGATION OR PROSECUTION AND SHALL REQUEST
OF THE COURT THAT ANY COPIES OF  SUCH  REPORTS  PRODUCED  IN  ANY  COURT
PROCEEDING  BE  REDACTED  TO  REMOVE THE NAMES OF THE SUBJECTS AND OTHER
PERSONS NAMED IN THE REPORTS OR THAT THE COURT ISSUE AN ORDER PROTECTING
THE NAMES OF THE SUBJECTS AND OTHER PERSONS NAMED IN  THE  REPORTS  FROM
PUBLIC DISCLOSURE.
  S  3.  Paragraph  (f) of subdivision 6 of section 2803-d of the public
health law, as amended by chapter 340 of the laws of 1980, is amended to
read as follows:
  (f) [Information]  ANY  REPORT  OF  PHYSICAL  ABUSE,  MISTREATMENT  OR
NEGLECT, RECORD OF THE INVESTIGATION OF SUCH REPORT AND ALL OTHER INFOR-
MATION  RELATED TO SUCH REPORT SHALL BE CONFIDENTIAL AND SHALL BE EXEMPT
FROM DISCLOSURE UNDER ARTICLE SIX OF THE PUBLIC OFFICERS  LAW,  PROVIDED
HOWEVER  THAT  INFORMATION  relating  to  a report made pursuant to this
section shall be disclosed under any of the following conditions:
  (i) pursuant to article six of the public officers law after  expunge-
ment  or  amendment,  if  any,  is  made  in  accordance  with a hearing
conducted pursuant to this section, or at least forty-five days after  a
written  determination  is  made  by  the  commissioner  concerning such
report, whichever is later; provided, however, that the identity of  the
person  who  made  the  report,  the  victim, or any other person named,
except a person who the commissioner has determined committed an act  of
physical  abuse,  neglect or mistreatment, shall not be disclosed unless
such person authorizes such disclosure;
  (ii) as may be required by the  penal  law  or  any  lawful  order  or
warrant issued pursuant to the criminal procedure law; or
  (iii)  to  a  person  who  has  requested  a  hearing pursuant to this
section, information relating to the determination upon which the  hear-
ing  is  to  be  conducted;  provided, however, that the identity of the
person who made the report or any other person who provided  information
in  an  investigation  of  the report shall not be disclosed unless such
person authorizes such disclosure[.]; OR
  (IV) TO A  PROSECUTOR,  INCLUDING  THE  ATTORNEY  GENERAL,  WHEN  SUCH
REQUEST IS MADE IN CONNECTION WITH AND NECESSARY TO THE FURTHERANCE OF A
CRIMINAL  INVESTIGATION  RELATED  TO  THE ALLEGATIONS OF PHYSICAL ABUSE,
NEGLECT OR MISTREATMENT, OR FAILURE TO REPORT SUCH  ACTS.  A  PROSECUTOR
WHO  OBTAINS  SUCH RECORDS SHALL MAINTAIN THEM AS CONFIDENTIAL AND SHALL
NOT DISCLOSE THEM EXCEPT IN  CONNECTION  WITH  GRAND  JURY  OR  JUDICIAL
PROCEEDINGS.
  S 4. Subdivision 16 of section 296 of the executive law, as amended by
chapter 639 of the laws of 2007, is amended to read as follows:
  16.  It  shall  be an unlawful discriminatory practice, unless specif-
ically required or permitted by statute, for any person, agency, bureau,
corporation or association, including the state and any political subdi-

A. 1802                             3

vision thereof, to make any inquiry about, whether in any form of appli-
cation or  otherwise,  or  to  act  upon  adversely  to  the  individual
involved,  (A)  any arrest or criminal accusation of such individual not
then pending against that individual which was followed by a termination
of  that  criminal  action or proceeding in favor of such individual, as
defined in subdivision two of section 160.50 of the  criminal  procedure
law,  or  by a youthful offender adjudication, as defined in subdivision
one of section 720.35 of the criminal procedure law, or by a  conviction
for a violation sealed pursuant to section 160.55 of the criminal proce-
dure   law   OR   (B)   ANY   REPORT  MADE  UNDER  SECTION  TWENTY-EIGHT
HUNDRED-THREE-D OF THE PUBLIC HEALTH LAW WHERE A DETERMINATION HAS  BEEN
MADE  THAT  THE ALLEGATION WOULD NOT BE SUSTAINED in connection with the
licensing, employment or providing of credit or insurance to such  indi-
vidual; provided, however, that the provisions hereof shall not apply to
the licensing activities of governmental bodies in relation to the regu-
lation  of  guns, firearms and other deadly weapons or in relation to an
application for employment as a police officer or peace officer as those
terms are  defined  in  subdivisions  thirty-three  and  thirty-four  of
section  1.20  of  the criminal procedure law; provided further that the
provisions of this subdivision shall not apply  to  an  application  for
employment  or  membership in any law enforcement agency with respect to
any arrest or criminal accusation  which  was  followed  by  a  youthful
offender  adjudication,  as defined in subdivision one of section 720.35
of the criminal procedure law, or by a conviction for a violation sealed
pursuant to section 160.55 of the criminal procedure law.
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.