senate Bill S4947

Prohibits the release of personal medical records or information without a warrant or express written authorization of the individual

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 01 / May / 2013
    • REFERRED TO CODES
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

Prohibits the release of personal medical records or information without a warrant or express written authorization of the individual; prohibits the condition of the consent of release for an application.

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Bill Details

Versions:
S4947
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd ยงยง400.00 & 400.02, Pen L

Sponsor Memo

BILL NUMBER:S4947

TITLE OF BILL: An act to amend the penal law, in relation to
prohibiting the release of personal medical records or information
without a warrant or express written authorization of the individual

SUMMARY OF PROVISIONS: SECTION 1 amends subdivision 4 of section
400.00 of the Penal Law to provide that notwithstanding any other
provision of law to the contrary, neither the state police, the
division of criminal justice services, nor any other law enforcement
agency or employee thereof shall be permitted access to personal
medical records and other medical information other than those records
required to sent by the Department of Mental Hygiene without a
properly issued warrant, or the express, notarized permission of the
individual whose information is sought.

SECTION 2 amends subdivision 4 of section 400.00 of the Penal law to
provide that notwithstanding any other provision of law to the
contrary, neither the state police, the division of criminal justice
services, nor any other law enforcement agency or employee thereof
shall be permitted access to personal medical records and other
medical information other than those records required to sent by the
Department of Mental Hygiene without a properly issued warrant, or the
express, notarized permission of the individual whose information is
sought.

SECTION 3 Amends section 400.02 of the penal Law to provide that
notwithstanding any other provision of law to the contrary, neither
the state police, the division of criminal justice services, nor any
other law enforcement agency or employee thereof shall be permitted
access to personal medical records and other medical information other
than those records required to sent by the Department of Mental
Hygiene without a properly issued warrant, or the express, notarized
permission of the individual whose information is sought law
enforcement.

SECTION 4 amends subdivision 3 of section 400.00 by adding a new
paragraph (c) to provide (i)that an application for a firearms license
or the renewal thereof shall not require the applicant to consent to
the release of their personal medical records and other medical
information, other than records required to be provided by the
Department of Mental Hygiene, as a condition of receiving or retaining
such license, unless the investigating agency has a reasonable belief
that a medical issue exists which would justify the denial of a
license pursuant to this section; and (ii)that the state police, the
division of criminal justice services, and any other law enforcement
agency or employee thereof may request a consent from individuals for
the release of their personal medical records or other medical
information where such law enforcement agency has a reasonable belief
that a medical issue exists which would justify the suspension or
revocation for license issued pursuant to this section

SECTION 4 provides that this act shall take effect on the thirtieth
day after it shall become law.

PURPOSE AND JUSTIFICATION: Recently, reports have arisen that law
enforcement agencies have obtained medical information which has led


them to notify local county clerks that the firearm licenses of
identified individuals should be revoked or suspended, and that the
individual's firearms should be surrendered. Generally, medical
records are confidential under Federal HIPAA laws, and law enforcement
officers should not be entitled to search these or any other
confidential records without first obtaining a warrant for such
searches or permission from the individual whose records have been
accessed. This bill clarifies that the new SAFE Act does not give
blanket liberties to law enforcement to search New Yorkers medical
records, even those who have legally applied for or been issued a
firearm license, without proper due process or permission. In
addition, the bill clarifies that no applicant for a firearm license
should be required to give a blanket and continuing authorization for
law enforcement to access his or her medical records, other than those
kept by the Department of Mental Hygiene, as a condition of obtaining
or retaining a license, when there is no probable cause to believe
that there are any medical issues that might justify the refusal,
revocation or suspension of such license.

EXISTING LAW: Penal Law Article 400 sets forth procedures related to
the issuance and renewal of firearm licenses.

PRIOR LEGISLATIVE HISTORY: New bill

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately; provided
however that sections two and three shall take effect on the same date
and in the same manner as sections 48 and 49, respectively, of Chapter
1 of the Laws of 2013, take effect.

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

                                  4947

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 1, 2013
                               ___________

Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in relation to prohibiting the release of
  personal medical records or information without a warrant  or  express
  written authorization of the individual

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 4 of  section  400.00  of  the  penal  law,  as
amended  by  chapter  331  of  the  laws  of 2005, is amended to read as
follows:
  4. Investigation. Before a license is issued or renewed,  there  shall
be an investigation of all statements required in the application by the
duly  constituted police authorities of the locality where such applica-
tion is made. For that purpose, the records of the appropriate office of
the department of mental hygiene concerning previous or  present  mental
illness of the applicant shall be available for inspection by the inves-
tigating  officer  of  the  police  authority. In order to ascertain any
previous criminal record, the investigating officer shall take the fing-
erprints and physical descriptive data in quadruplicate of each individ-
ual by whom the application is signed and verified. Two copies  of  such
fingerprints  shall  be taken on standard fingerprint cards eight inches
square, and one copy may be taken on a card supplied for that purpose by
the federal bureau of investigation; provided, however, that in the case
of a corporate applicant that  has  already  been  issued  a  dealer  in
firearms  license  and seeks to operate a firearm dealership at a second
or subsequent location, the original fingerprints on file may be used to
ascertain any criminal record in the second  or  subsequent  application
unless any of the corporate officers have changed since the prior appli-
cation, in which case the new corporate officer shall comply with proce-
dures governing an initial application for such license. When completed,
one  standard card shall be forwarded to and retained by the division of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10432-03-3

S. 4947                             2

criminal justice services in the  executive  department,  at  Albany.  A
search  of  the  files  of such division and written notification of the
results of the search to the investigating officer shall be made without
unnecessary delay.  Thereafter, such division shall notify the licensing
officer  and the executive department, division of state police, Albany,
of any criminal record of the applicant filed therein subsequent to  the
search  of its files. A second standard card, or the one supplied by the
federal bureau of investigation, as the case may be, shall be  forwarded
to that bureau at Washington with a request that the files of the bureau
be searched and notification of the results of the search be made to the
investigating  police  authority.  The failure or refusal of the federal
bureau of investigation to make the fingerprint check  provided  for  in
this  section shall not constitute the sole basis for refusal to issue a
permit pursuant to the provisions of this section. Of the remaining  two
fingerprint  cards,  one  shall  be filed with the executive department,
division of state police, Albany, within ten days after issuance of  the
license,  and  the  other  remain  on file with the investigating police
authority. No such fingerprints may be inspected  by  any  person  other
than a peace officer, who is acting pursuant to his special duties, or a
police  officer,  except  on  order  of a judge or justice of a court of
record either upon notice to the licensee  or  without  notice,  as  the
judge  or  justice may deem appropriate. Upon completion of the investi-
gation, the police authority shall report the results to  the  licensing
officer  without  unnecessary delay. NOTWITHSTANDING ANY OTHER PROVISION
OF LAW TO THE CONTRARY NEITHER THE STATE POLICE, THE DIVISION OF  CRIMI-
NAL  JUSTICE  SERVICES, NOR ANY OTHER LAW ENFORCEMENT AGENCY OR EMPLOYEE
THEREOF SHALL BE PERMITTED TO ACCESS PERSONAL MEDICAL RECORDS AND  OTHER
MEDICAL  INFORMATION  OTHER  THAN RECORDS REQUIRED TO BE PROVIDED BY THE
DEPARTMENT OF MENTAL HYGIENE WITHOUT A PROPERLY ISSUED WARRANT,  OR  THE
EXPRESS  WRITTEN,  NOTARIZED PERMISSION OF THE INDIVIDUAL WHOSE INFORMA-
TION IS SOUGHT.
  S 2. Subdivision 4 of section 400.00 of the penal law, as  amended  by
chapter 1 of the laws of 2013, is amended to read as follows:
  4.  Investigation.  Before a license is issued or renewed, there shall
be an investigation of all statements required in the application by the
duly constituted police authorities of the locality where such  applica-
tion is made, including but not limited to such records as may be acces-
sible  to  the  division of state police or division of criminal justice
services pursuant to section 400.02 of this article. For  that  purpose,
the  records  of  the  appropriate  office  of  the department of mental
hygiene concerning previous or present mental illness of  the  applicant
shall  be  available  for inspection by the investigating officer of the
police authority. In order to ascertain any  previous  criminal  record,
the  investigating  officer  shall  take  the  fingerprints and physical
descriptive data in quadruplicate of each individual by whom the  appli-
cation  is signed and verified. Two copies of such fingerprints shall be
taken on standard fingerprint cards eight inches square,  and  one  copy
may  be  taken on a card supplied for that purpose by the federal bureau
of investigation; provided, however, that in the  case  of  a  corporate
applicant  that has already been issued a dealer in firearms license and
seeks to  operate  a  firearm  dealership  at  a  second  or  subsequent
location, the original fingerprints on file may be used to ascertain any
criminal  record  in  the second or subsequent application unless any of
the corporate officers have changed  since  the  prior  application,  in
which  case  the  new  corporate  officer  shall  comply with procedures
governing an initial application for such license. When  completed,  one

S. 4947                             3

standard  card  shall  be  forwarded  to and retained by the division of
criminal justice services in the  executive  department,  at  Albany.  A
search  of  the  files  of such division and written notification of the
results of the search to the investigating officer shall be made without
unnecessary  delay. Thereafter, such division shall notify the licensing
officer and the executive department, division of state police,  Albany,
of  any criminal record of the applicant filed therein subsequent to the
search of its files. A second standard card, or the one supplied by  the
federal  bureau of investigation, as the case may be, shall be forwarded
to that bureau at Washington with a request that the files of the bureau
be searched and notification of the results of the search be made to the
investigating police authority. Of the remaining two fingerprint  cards,
one  shall  be  filed  with  the executive department, division of state
police, Albany, within ten days after issuance of the license,  and  the
other  remain  on  file with the investigating police authority. No such
fingerprints may be inspected by any person other than a peace  officer,
who  is  acting  pursuant  to  his  special duties, or a police officer,
except on order of a judge or justice of a court of record  either  upon
notice  to  the  licensee or without notice, as the judge or justice may
deem appropriate. Upon  completion  of  the  investigation,  the  police
authority  shall  report  the  results  to the licensing officer without
unnecessary delay.  NOTWITHSTANDING ANY OTHER PROVISION OF  LAW  TO  THE
CONTRARY  NEITHER  THE  STATE  POLICE,  THE DIVISION OF CRIMINAL JUSTICE
SERVICES, NOR ANY OTHER LAW ENFORCEMENT AGENCY OR EMPLOYEE THEREOF SHALL
BE PERMITTED TO ACCESS PERSONAL MEDICAL RECORDS AND OTHER MEDICAL INFOR-
MATION OTHER THAN RECORDS REQUIRED TO BE PROVIDED BY THE  DEPARTMENT  OF
MENTAL  HYGIENE  WITHOUT A PROPERLY ISSUED WARRANT, OR THE EXPRESS WRIT-
TEN, NOTARIZED PERMISSION OF THE INDIVIDUAL WHOSE INFORMATION IS SOUGHT.
  S 3. Section 400.02 of the penal law, as added by  chapter  1  of  the
laws of 2013, is amended to read as follows:
S 400.02 Statewide license and record database.
  1.  There shall be a statewide license and record database which shall
be created and maintained by the division of state police  the  cost  of
which  shall  not  be  borne  by  any municipality. Records assembled or
collected for purposes of  inclusion  in  such  database  shall  not  be
subject  to  disclosure  pursuant  to article six of the public officers
law. Records containing granted license applications  shall  be  period-
ically  checked  by  the  division  of criminal justice services against
criminal conviction, mental health, and all other records as are  neces-
sary  to  determine their continued accuracy as well as whether an indi-
vidual is no longer a valid license holder.  The  division  of  criminal
justice  services shall also check pending applications made pursuant to
this article against such records to determine whether a license may  be
granted.  All state agencies shall cooperate with the division of crimi-
nal justice services, as otherwise authorized by law,  in  making  their
records  available  for  such  checks.  The division of criminal justice
services, upon determining that an individual is ineligible to possess a
license, or is no longer a valid license holder, shall notify the appli-
cable licensing official of such determination and such licensing  offi-
cial  shall  not  issue a license or revoke such license and any weapons
owned or possessed by such individual shall be removed  consistent  with
the  provisions of subdivision eleven of section 400.00 of this article.
Local and state law enforcement shall have access to such  database,  as
otherwise authorized by law, in the performance of their duties. Records
assembled  or collected for purposes of inclusion in the database estab-
lished by this section shall be released pursuant to a court order.

S. 4947                             4

  2.  NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY NEITHER
THE STATE POLICE, THE DIVISION OF CRIMINAL  JUSTICE  SERVICES,  NOR  ANY
OTHER  LAW  ENFORCEMENT AGENCY OR EMPLOYEE THEREOF SHALL BE PERMITTED TO
ACCESS PERSONAL MEDICAL RECORDS AND OTHER MEDICAL INFORMATION OTHER THAN
RECORDS  REQUIRED  TO  BE  PROVIDED  BY THE DEPARTMENT OF MENTAL HYGIENE
WITHOUT A PROPERLY ISSUED WARRANT, OR  THE  EXPRESS  WRITTEN,  NOTARIZED
PERMISSION OF THE INDIVIDUAL WHOSE INFORMATION IS SOUGHT.
  S  4.  Subdivision  3 of section 400.00 of the penal law is amended by
adding a new paragraph (c) to read as follows:
  (C) (I) THE APPLICATION FOR A LICENSE TO  CARRY,  POSSESS,  REPAIR  OR
DISPOSE  OF  FIREARMS,  OR THE RENEWAL THEREOF, PURSUANT TO THIS SECTION
SHALL NOT REQUIRE THE APPLICANT TO  CONSENT  TO  THE  RELEASE  OF  THEIR
PERSONAL  MEDICAL  RECORDS  AND  OTHER  MEDICAL  INFORMATION, OTHER THAN
RECORDS REQUIRED TO BE PROVIDED BY THE DEPARTMENT OF MENTAL HYGIENE,  AS
A  CONDITION  OF RECEIVING OR RETAINING SUCH LICENSE UNLESS THE INVESTI-
GATING AGENCY HAS A REASONABLE BELIEF THAT A MEDICAL ISSUE EXISTS  WHICH
WOULD JUSTIFY THE DENIAL OF A LICENSE PURSUANT TO THIS SECTION.
  (II)  THE STATE POLICE, THE DIVISION OF CRIMINAL JUSTICE SERVICES, AND
ANY OTHER LAW ENFORCEMENT AGENCY  OR  EMPLOYEE  THEREOF  MAY  REQUEST  A
CONSENT  FROM  INDIVIDUALS  FOR  THE  RELEASE  OF THEIR PERSONAL MEDICAL
RECORDS OR OTHER MEDICAL INFORMATION WHERE SUCH LAW  ENFORCEMENT  AGENCY
HAS  A REASONABLE BELIEF THAT A MEDICAL ISSUE EXISTS WHICH WOULD JUSTIFY
THE SUSPENSION OR REVOCATION  OF  A  LICENSE  ISSUED  PURSUANT  TO  THIS
SECTION.
  S  5.  This  act shall take effect immediately; provided, however that
sections two and three of this act shall take effect on  the  same  date
and in the same manner as sections 48 and 49, respectively, of chapter 1
of the laws of 2013, take effect.

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