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

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.