senate Bill S4797

2011-2012 Legislative Session

Relates to evidence of abuse, neglect or mistreatment and availability of legally sealed reports

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Archive: Last Bill Status - In Committee


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

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to health
Apr 25, 2011 referred to health

S4797 - Bill Details

Current Committee:
Senate Health
Law Section:
Public Health Law
Laws Affected:
Amd §2803-d, Pub Health L

S4797 - Bill Texts

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Relates to evidence of abuse, neglect or mistreatment and availability of legally sealed reports.

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BILL NUMBER:S4797

TITLE OF BILL:
An act
to amend the public health law, in relation to evidence of abuse and
legally sealed reports

PURPOSE OR GENERAL IDEA OF BILL:
This bill gives the Department of Health access to legally sealed
reports when investigating reports of alleged abuse in health care
facilities, changes the requirement that reports be expunged to
"legally sealed", and changes the standard of proof to determine
whether an individual has committed neglect, mistreatment or abuse.

SUMMARY OF SPECIFIC PROVISIONS:
Section one amends section paragraph (a) of subdivision 6 of section
2803-d of the public health law to require that investigations of
alleged abuse conducted by the Department include a review of all
prior reports, including legally sealed reports, that involve the
subject of the current report. If the commissioner determines, in
writing, that credible evidence of alleged physical abuse, neglect,
or mistreatment exists, the commissioner shall send a copy of such
written determination and notice of the right to a hearing to the
accused. In addition, if no credible evidence exists, a letter must
be sent to such person to inform him or her of that determination.

Section two amends paragraph (b) of subdivision 6 of section 2803-d
of the public health law to require that information for which the
commissioner has determined there is no credible evidence of alleged
physical abuse, neglect, or mistreatment be legally sealed, removing
the requirement that such information be expunged, 120 days following
notification of such determination to the person who made the report
of alleged abuse.
This section also requires that the appropriate officials be notified
that information has been legally sealed. In addition, language is
added restricting access of such legally sealed reports to 1) the
Department of Health when investigating subsequent reports involving
a subject of the sealed report or when conducting internal quality
assurance review, 2) the subject of the report, or 3) the district
attorney, attorney general and other enforcement officials when they
verify that such information is necessary for their own investigation
or prosecutions. Further, those given access to legally sealed
reports are forbidden from redisclosing the contents except as
necessary for active investigations or prosecutions, and identities
must be redacted if the reports are released as part of any public
proceedings. This section also clarifies that a legally sealed report
is not sufficient evidence to sustain a report involving the same
subject under certain circumstances.

Section three replaces the word "expunge" with "seal" in paragraph
(d), subsection 6 of section 2803-d of the public health law.

Section four sets forth the· effective date.

JUSTIFICATION:
As it is now written, section 2803d of the New York Public Health laws
provides inadequate protection for patients in residential health
care facilities due to its requirement that complaints of abuse and
neglect that are not substantiated by the NYS Department of Health
are completely expunged. Due to this policy of expungement,
information that could be necessary to future investigations of
patient abuse complaints is lost, even to the specific government
agencies responsible for protecting patients. As a result, a number
of cases have come to light in which sexual abuse and other violence
has been proved {in a court of law} to have been perpetrated against
frail elderly and disabled people by individuals with a history of
complaints that were expunged under the current law. This bill seeks
to protect the health and safety of patients in these facilities by
maintaining sensible protections against unsubstantiated accusations
while providing a means of access to vital data on previous incidents
to the appropriate enforcement agency personnel. In addition, in
order to provide adequate patient protections, this bill amends the
public health law to reflect currently accepted standards of proof so
that it more closely resembles the relevant child abuse portions of
the social services law. By removing the word "sufficient," the focus
is shifted from quantity of evidence needed to the evidence's
credibility. These changes are necessary to better protect patients
in residential health care facilities.

PRIOR LEGISLATIVE HISTORY:
This is a new Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

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

                                  4797

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 25, 2011
                               ___________

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

AN ACT to amend the public health law, in relation to evidence of  abuse
  and legally sealed reports

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

  Section 1. Paragraph (a) 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:
  (a) Upon receipt of a  report  made  pursuant  to  this  section,  the
commissioner  shall cause an investigation to be made of the allegations
contained in the report. Notification of the receipt of a  report  shall
be made immediately by the department to the appropriate district attor-
ney if a prior request in writing has been made to the department by the
district  attorney. THE INVESTIGATION MUST INCLUDE A REVIEW OF ALL PRIOR
REPORTS, INCLUDING LEGALLY SEALED REPORTS, THAT INVOLVE THE  SUBJECT  OF
THE  CURRENT REPORT. Prior to the completion of the investigation by the
department, every reasonable effort shall be made to notify,  personally
or  by certified mail, any person under investigation for having commit-
ted an act of physical abuse, mistreatment or neglect. The  commissioner
shall  make a written determination, based on the findings of the inves-
tigation, of whether or not  [sufficient  credible  evidence  exists  to
sustain  the allegations contained in the report or would support] THERE
IS SOME CREDIBLE EVIDENCE OF THE ALLEGED  PHYSICAL  ABUSE,  NEGLECT,  OR
MISTREATMENT,  OR  EVIDENCE  SUPPORTING  a  conclusion that a person not
named in such report has committed an act of physical abuse, neglect  or
mistreatment.  A  copy  of  such  written determination, together with a
notice of the right to a hearing as provided in this subdivision,  shall
be  sent  by  registered  or certified mail to each person [who] AGAINST
WHOM the commissioner has determined THERE  IS  SOME  CREDIBLE  EVIDENCE
THAT  SUCH  PERSON  has  committed  an act of physical abuse, neglect or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10718-01-1

S. 4797                             2

mistreatment. A letter shall be sent to any other person alleged in such
report to have committed such an act stating that  a  determination  has
been made that there is [not sufficient] NO CREDIBLE evidence to sustain
the  allegations  relating  to such person. A copy of each such determi-
nation and letter shall be sent to the facility  in  which  the  alleged
incident occurred.
  S  2.  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 FOR which  the  commis-
sioner  has  determined  [would  not  be sustained] THERE IS NO CREDIBLE
EVIDENCE OF THE ALLEGED PHYSICAL ABUSE,  NEGLECT,  OR  MISTREATMENT,  OR
EVIDENCE  SUPPORTING A CONCLUSION THAT A PERSON NOT NAMED IN SUCH REPORT
HAS COMMITTED AN ACT OF PHYSICAL ABUSE, NEGLECT, OR MISTREATMENT,  shall
be [expunged] LEGALLY SEALED one hundred twenty days following notifica-
tion of such determination to the person who made the report pursuant to
this section, unless a proceeding pertaining to such allegation is pend-
ing  pursuant  to  article  seventy-eight  of the civil practice law and
rules. Whenever information is [expunged] LEGALLY  SEALED,  the  commis-
sioner  shall  notify any official notified pursuant to paragraph (a) of
this subdivision  that  the  information  has  been  [expunged]  LEGALLY
SEALED.
  (I) LEGALLY SEALED REPORTS SHALL BE MADE AVAILABLE ONLY TO:
  A.  THE  DEPARTMENT  OF HEALTH, WHEN INVESTIGATING A SUBSEQUENT REPORT
INVOLVING A SUBJECT OF THE SEALED REPORT  OR  WHEN  CONDUCTING  INTERNAL
QUALITY ASSURANCE REVIEWS;
  B. THE SUBJECT OF THE REPORT; OR
  C.  THE  DISTRICT ATTORNEY, THE ATTORNEY GENERAL AND OTHER ENFORCEMENT
OFFICIALS, WHEN THEY VERIFY THE REPORT IS NECESSARY TO CONDUCT AN ACTIVE
INVESTIGATION OR PROSECUTION.
  (II) A PERSON GIVEN ACCESS  TO  LEGALLY  SEALED  REPORTS  PURSUANT  TO
CLAUSE C OF SUBPARAGRAPH (I) OF THIS PARAGRAPH SHALL NOT REDISCLOSE THEM
EXCEPT  AS  NECESSARY  FOR  AN ACTIVE INVESTIGATION OR PROSECUTION. SUCH
PERSONS SHALL REQUEST OF ANY COURT INVOLVED  THAT  ANY  COPIES  OF  SUCH
REPORTS  PRODUCED IN ANY PROCEEDING FOR PUBLIC DISCLOSURE BE REDACTED TO
REMOVE THE IDENTITIES OF THE SUBJECTS OF SUCH REPORTS.
  (III) A LEGALLY SEALED REPORT SHALL  NOT  BE  SUFFICIENT  EVIDENCE  TO
SUSTAIN A SUBSEQUENT REPORT INVOLVING THE SAME SUBJECT OR SUBJECTS.
  (IV)  THE COMMISSIONER MAY GRANT A REQUEST TO EXPUNGE A LEGALLY SEALED
REPORT WHERE:
  A. THE SOURCE OF THE REPORT WAS CONVICTED OF A  VIOLATION  OF  SECTION
240.55 OF THE PENAL LAW; OR
  B.  THE  SUBJECT  OF THE REPORT PRESENTS CLEAR AND CONVINCING EVIDENCE
THAT AFFIRMATIVELY REFUTES  THE  ALLEGATION.  THE  ABSENCE  OF  CREDIBLE
EVIDENCE  SUPPORTING  THE  ALLEGATION  SHALL  NOT  BE  THE SOLE BASIS TO
EXPUNGE THE REPORT.
  S 3. Paragraph (d) of subdivision 6 of section 2803-d  of  the  public
health law, as amended by chapter 622 of the laws of 1980, is amended to
read as follows:
  (d)  At  any  time  within  thirty  days of the receipt of a copy of a
determination made pursuant to this section,  a  person  named  in  such
determination  as  having committed an act of physical abuse, neglect or
mistreatment, or as having  failed  to  report  such  an  incident,  may
request  in  writing  that  the commissioner amend or [expunge] SEAL the
record of such report, to the extent such report applies to such person,
or such written determination. If the commissioner does not comply  with

S. 4797                             3

such  request  within thirty days, such person shall have the right to a
fair hearing to determine whether the record of the report or the  writ-
ten  determination should be amended or [expunged] SEALED on the grounds
that  the  record is inaccurate or the determination is not supported by
the evidence. The burden of proof  in  such  hearing  shall  be  on  the
department.  Whenever information is [expunged] SEALED, the commissioner
shall notify any official notified pursuant to  paragraph  (a)  of  this
subdivision that the information has been [expunged] SEALED.
  S 4. This act shall take effect immediately.

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