Provides for the expungement of unsustained allegations of abuse and the sealing of records; repealer

Summary of specific provisions

Section 1 of the bill amends Public Health Law § 2803-d(6)(c) to extend, from 120 days to 5 years, the period prior to expungement of records of the Department of Health ("DOH") records related to reports of abuse in residential care facilities that are determined to be unsubstantiated.

Section 2 repeals Public Health Law § 2803-d(6)(e) and adds a new §2803-d(6)(e) to require sealing of DOH records relating to abuse allegations 120 days after notification of the finding that the allegation is unfounded. Unsealing is permitted upon the request of law enforcement or prosecutorial officials where necessary to conduct an investigation or prosecution related to abuse, mistreatment, neglect or failure to report such an incident.

Section 3 of the bill amends Public Health Law § 2803-d(6)(f) to clarify that reports of patient abuse are confidential except for specified purposes, and to permit prosecutors to obtain information related to such reports.

Section 4 of the bill amends Executive Law § 296( 16) to prohibit discrimination against any person based on information contained in a report concerning an unfounded allegation of abuse.

Section 5 - Effective Date

Justification

Abuse and neglect of patients in residential health care facilities is a continuing problem, and it is important that New York take all appropriate steps to protect these vulnerable individuals from such mistreatment. Unfortunately, New York State law currently requires that if an allegation of abuse, mistreatment or failure to report abuse is found to be unsubstantiated, all records relating to that allegation must be expunged within 120 days. This mandated destruction of records can frustrate efforts to prevent such abuse in several ways. First, expungement can encourage misrepresentations by those involved, because they know that all evidence is destroyed following a finding

that the complaint has not been substantiated. In addition to making detection of these crimes more difficult, it also hinders prosecution for the presentation of false documentation or testimony. Second, if additional evidence comes to light after a case is closed, details of the original complaint will be lost, and witnesses may no longer be available. Third, the quick expungement of records makes it more difficult to uncover patterns of abuse committed by an individual over time. For example, although there might not be sufficient information to prosecute a particular case, if an individual is involved in multiple similar cases over time, including cases arising in different health care facilities, having access to the older records would greatly facilitate the detection of the abuse and the prosecution of the wrong-doer.

This bill adapts the procedures followed to ensure confidentiality of reports of child abuse and mistreatment made to the central registry established under Social Services Law §422 (5). That section recognizes the legitimate expectation of privacy for those inappropriately accused of child abuse by providing for a sealing of the records related to unfounded allegations, with disclosure generally prohibited except to certain government organizations, including prosecutors and other law enforcement officials, where necessary for an investigation. This represents a more balanced approach between the privacy interests of the accused and the legitimate need for government agencies to access information related to abuse allegation in relation to subsequent investigations. Currently, the Attorney General and other prosecutors may obtain copies of reports that have not been destroyed through issuance of a trial subpoena. This can have the unintended consequence of disclosure of confidential information to persons other than the prosecutors who need to review the information. By permitting disclosure upon the request of a prosecutor, and requiring that the information be maintained as confidential, this bill would strengthen the privacy protection of such information.

Prior legislative history

2011: S.60 - Discharged from Health and Committed to Codes/A.38 Referred to Aging 2009-2010: Referred to Health/A.1802 - Referred to Aging 2007-2008: A.9950 - Referred to Aging 2007-2008: A.946 - Enacting Clause Stricken 2005-2006: A.8682 - Referred to Health

Fiscal implications

None.

Effective date

One hundred eightieth day after becoming a law.