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

                                  9072

                          I N  A S S E M B L Y

                            January 20, 2012
                               ___________

Introduced by M. of A. MILLMAN, DINOWITZ, CASTRO, CRESPO, JAFFEE, ORTIZ,
  STEVENSON,  TITONE,  ENGLEBRIGHT,  GALEF,  GOTTFRIED, HEASTIE, MARKEY,
  REILLY -- Multi-Sponsored by -- M. of A. ARROYO, HOOPER, MAGEE, McENE-
  NY,  J. RIVERA,  P. RIVERA,  SCHIMEL,  SWEENEY,  WEISENBERG,   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health law is REPEALED and a new paragraph  (e)  is  added  to  read  as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
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

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

                                                           LBD01862-01-1

A. 9072                             2

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 separately
amended  by section 3 of part N and section 14 of part AAA of chapter 56
of the laws of 2009, 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-
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

A. 9072                             3

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)  by  a conviction which is sealed pursuant to section
160.58 of the criminal procedure  law  OR  (C)  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 individual; provided, further, that no person shall be
required to divulge information pertaining to  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  proceed-
ing  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 pursu-
ant to section 160.55 of the criminal procedure law, or by a  conviction
which  is  sealed  pursuant  to section 160.58 of the criminal procedure
law. The provisions of this subdivision shall not apply to the licensing
activities of governmental bodies in relation to the regulation 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 member-
ship in any law enforcement agency with respect to any arrest or  crimi-
nal  accusation  which was followed by a youthful offender adjudication,
as defined in subdivision one of section 720.35 of the  criminal  proce-
dure  law, or by a conviction for a violation sealed pursuant to section
160.55 of the criminal procedure law, or by a conviction which is sealed
pursuant to section 160.58 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.