§ 496 — Confidentiality

New York § 496

• Jurisdiction: New York
• Law SOS: Social Services
• Art. 11: Protection of People With Special Needs

Text

§ 496. Confidentiality. 1. Unless an investigation of a report\nconducted pursuant to this article has been substantiated, all\ninformation, including information identifying the subject of the report\nand other persons named in the report, shall be sealed forthwith by the\nvulnerable persons' central register, the state oversight agency and the\nfacility or provider agency. Such reports may only be unsealed and made\navailable, consistent with any other applicable state or federal law,\nto:\n (a) the state agency operating, licensing or certifying a facility or\nprogram for the purpose of monitoring or licensing such facility or\nprogram;\n (b) any state agency operating, licensing, or certifying a facility or\nprovider agency when investigating a report of suspected abuse or\nneglect involving the subject of a previously sealed report accepted by\nthe vulnerable persons' central register;\n (c) the subject of the report;\n (d) a court of relevant jurisdiction or a law enforcement official\nwhen such court or official verifies that the report is necessary to\nconduct an active investigation or prosecution of a violation of\nsubdivision four of section 240.50 of the penal law;\n (e) the justice center medical review board, for the purposes of\npreparing a fatality report pursuant to section five hundred fifty-six\nof the executive law;\n (f) the independent agency designated pursuant to subdivision (b) of\nsection five hundred fifty-eight of the executive law, provided that\nsuch information is relevant to a matter within the legal authority of\nsuch agency; or\n (g) other persons named in the report, as defined in subdivision\nthirteen of section four hundred eighty-eight of this article which\nincludes, but is not limited to, the service recipient's parent,\nguardian or other person legally responsible for such person; provided,\nhowever, that the names and other personally identifying information of\ncustodians and other service recipients shall not be included unless\nsuch custodians and service recipients authorize disclosure.\nNotwithstanding the prohibitions on non-redisclosure set forth in the\nclosing sentence of this subdivision, the service recipient, and such\nservice recipient's parent, guardian or other person legally responsible\nfor such service recipient may disclose information and reports made\navailable pursuant to this paragraph to an attorney, who shall not\nfurther disclose except as is necessary for use by such attorney in\nrendering advice, assistance and representation.\nWhen a report is unsealed, persons given access to it shall not\nredisclose such reports except as necessary to conduct such appropriate\ninvestigation or prosecution and shall request that the court redact any\ncopies of such reports produced in any court proceeding to remove the\nnames of those persons irrelevant to the proceeding such as the source\nof the report, the name of the subject, and other persons named in the\nreports; or that the court issue an order protecting the names of the\nsubjects and other persons named in the reports from public disclosure.\n 2. Reports made pursuant to this article and found to be substantiated\nas well as any other information obtained, reports written or\nphotographs taken concerning such reports in the possession of the\njustice center, a state oversight agency, a delegate investigatory\nentity, facility or provider agency covered by this article shall be\nconfidential and shall not be disclosed to any other party unless\nauthorized pursuant to this section or any other applicable state or\nfederal law. In the event that other applicable state or federal law\nprovisions are more restrictive than the provisions of this section, the\nprovisions of such other state or federal law shall apply. In accordance\nwith this section, such information shall be made available only to:\n (a) a person who is the subject of the report;\n (b) other persons named in the report, which includes, but is not\nlimited to, the service recipient's parent, guardian or other person\nlegally responsible for such person. Notwithstanding the prohibitions on\nnon-redisclosure set forth in subdivision four of this section, the\nservice recipient, and such service recipient's parent, guardian or\nother person legally responsible for such service recipient may disclose\ninformation and reports made available pursuant to this paragraph to an\nattorney, who shall not further disclose except as is necessary for use\nby such attorney in rendering advice, assistance and representation;\n (c) the justice center;\n (d) the applicable state oversight agency, the director or operator of\nthe applicable facility or provider agency and, as appropriate, the\nlocal social services commissioner, the commissioner of the office of\nchildren and family services, or the school district placing the service\nrecipient, or an agency providing adult protective services to the\nservice recipient;\n (e) a physician who has before him or her a service recipient whom he\nor she reasonably suspects may be or may have been abused or neglected;\n (f) a court, upon a finding that the information in the record is\nrelevant to the determination of an issue before the court;\n (g) a grand jury, upon a finding that the information in the record is\nnecessary for the determination of charges before the grand jury;\n (h) any appropriate state legislative committee responsible for\nlegislation affecting vulnerable persons, provided, however, that no\ninformation identifying or tending to identify the subjects of the\nreport or other persons named in the report shall be made available;\n (i) any person engaged in a bona fide research purpose; provided,\nhowever, that no information identifying or tending to identify the\nsubjects of the report or other persons named in the report shall be\nmade available to the researcher unless it is absolutely essential to\nthe research purpose and the justice center, after consultation with the\ncommissioner of the applicable state oversight agency, gives prior\napproval;\n (j) a facility or provider agency, other providers of services to\nvulnerable persons in programs licensed or certified by any state\noversight agency, or any other provider agency as defined in subdivision\nthree of section four hundred twenty-four-a of this chapter or a\nlicensing agency as defined in subdivision four of section four hundred\ntwenty-four-a of this chapter, in accordance with the provisions of\nsubdivision two of section four hundred ninety-five of this article;\n (k) a probation service regarding a person about whom it is conducting\nan investigation pursuant to article three hundred ninety of the\ncriminal procedure law, or a probation service or the department of\ncorrections and community supervision regarding a person to whom the\nservice or department is providing supervision pursuant to article sixty\nof the penal law or article eight of the correction law, where the\nservice or department requests the information upon a certification that\nsuch information is necessary to conduct its investigation, that there\nis reasonable cause to believe that the subject of an investigation is\nthe subject of a substantiated report and that there is reasonable cause\nto believe that such records are necessary to the investigation by the\nprobation service or the department, provided, however, that only\nsubstantiated reports shall be furnished pursuant to this subdivision;\n (l) a district attorney, an assistant district attorney or\ninvestigator employed by the office of a district attorney, a sworn\nofficer of the division of state police, of the regional state park\npolice, of a city police department, or of a county, town or village\npolice department or county sheriff's office or department upon written\nverification that such information is necessary to conduct a criminal\ninvestigation or criminal prosecution of a person, and that there is\nreasonable cause to believe that such person is the subject of a report;\nprovided, however, that only substantiated reports shall be furnished\npursuant to this subdivision;\n (m) the New York city department of investigation; provided, however,\nthat no information identifying the subjects of the report or other\npersons named in the report shall be made available to the department of\ninvestigation unless such information is essential to an investigation\nwithin the legal authority of the department of investigation and the\njustice center or the applicable state oversight agency gives prior\napproval;\n (n) a provider or coordinator of services to which a facility or\nprovider agency or social services district has referred a service\nrecipient or a service recipient's family or to whom the service\nrecipient or the recipient's family have referred themselves at the\nrequest of such agency or social services district, when said service\nrecipient is reported to the vulnerable persons' central register as the\nvulnerable person and when the records, reports or other information are\nnecessary to enable the provider or coordinator to establish and\nimplement a plan of service for the service recipient or the service\nrecipient's family, or to monitor the provision and coordination of\nservices and the circumstances of the service recipient and the service\nrecipient's family, or to directly provide services in accordance with\nrequirements established by the applicable state oversight agency to the\nextent that the sharing of such information is not otherwise prohibited\nby federal law; provided, however, a provider or coordinator of services\ngiven access to information concerning a service recipient pursuant to\nthis paragraph shall be authorized to redisclose such information to\nother persons or agencies which also provide services to the service\nrecipient or the service recipient's family only if an agreement has\nbeen or will be reached between the provider or coordinator of service\nand such facility or provider agency, operating state agency or local\ndistrict. An agreement entered into pursuant to this paragraph shall\ninclude the specific agencies and categories of individuals to whom\nredisclosure by the provider or coordinator of services is authorized.\nPersons or agencies given access to information pursuant to this\nparagraph may exchange such information in order to facilitate the\nprovision or coordination of services to the service recipient or the\nservice recipient's family;\n (o) a disinterested person making an investigation pursuant to section\none hundred sixteen of the domestic relations law, provided that such\ndisinterested person shall only make this information available to the\njudge before whom the adoption proceeding is pending;\n (p) a criminal justice agency conducting an investigation of a missing\nchild or vulnerable adult where there is reason to suspect information\nin a substantiated report under this article is needed to further such\ninvestigation;\n (q) the director or operator of the facility or provider agency and,\nas appropriate, the local social services commissioner, commissioner of\nthe office of children and family services, or school district placing a\nchild in that program, the applicable executive agency, and, for any\nreport involving abuse or neglect of a child, any attorney appointed to\nrepresent the child whose appointment has been continued by a family\ncourt judge during the term of the placement and subject to the\nlimitations contained in section four hundred ninety-five of this\narticle;\n (r) for any report alleging abuse or neglect of a child, a child\nprotective service of another state when such service certifies that the\nrecords and reports are necessary in order to conduct a child abuse or\nmaltreatment investigation within its jurisdiction of the subject of the\nreport and shall only be used for purposes of conducting such\ninvestigation and will not be redisclosed to any other person or agency;\n (s) an attorney for a child, appointed pursuant to section one\nthousand sixteen of the family court act, at any time such appointment\nis in effect, in relation to any report in which the respondent in the\nproceeding in which the attorney for the child is appointed is the\nsubject or another person named in the report, pursuant to sections one\nthousand thirty-nine-a and one thousand fifty-two-a of the family court\nact;\n (t) officers and employees of the state comptroller, for purposes of a\nduly authorized performance audit, provided that such comptroller shall\nhave certified to the keeper of such records that he or she has\ninstituted procedures developed in consultation with the justice center\nto limit access to service recipient-identifiable information to persons\nrequiring such information for purposes of the audit and that\nappropriate controls and prohibitions are imposed on the dissemination\nof service recipient-identifiable information contained in the conduct\nof the audit.\n (i) Information pertaining to the substance or content of any\npsychological, psychiatric, therapeutic, clinical or medical reports,\nevaluations or like materials or information pertaining to such\nvulnerable person or such person's family shall not be made available to\nsuch officers and employees unless disclosure of such information is\nabsolutely essential to the specific audit activity and the justice\ncenter gives prior written approval.\n (ii) Any failure to maintain the confidentiality of service\nrecipient-identifiable information shall subject such comptroller or\nofficer to denial of any further access to records until such time as\nthe audit agency has reviewed its procedures concerning controls and\nprohibitions imposed on the dissemination of such information and has\ntaken all reasonable and appropriate steps to eliminate such lapses in\nmaintaining confidentiality to the satisfaction of the justice center.\nSuch justice center shall establish the grounds for denial of access to\nrecords contained under this section and shall recommend as necessary a\nplan of remediation to the audit agency. Except as provided in this\nsection, nothing in this subparagraph shall be construed as limiting the\npowers of such comptroller or officer to access records which he or she\nis otherwise authorized to audit or obtain under any other applicable\nprovision of law;\n (u) an entity with appropriate legal authority in another state to\nlicense, certify or otherwise approve prospective foster and adoptive\nparents where disclosure of information regarding the prospective foster\nor adoptive parents and other persons over the age of eighteen residing\nin the home of such prospective parents is required by paragraph twenty\nof subdivision (a) of section six hundred seventy-one of title forty-two\nof the United States Code;\n (v) a social services official who is investigating whether an adult\nis in need of protective services in accordance with the provisions of\nsection four hundred seventy-three of this chapter or a child is in need\nof child protective services pursuant to the provisions of title six of\narticle six of this chapter, when such official has reasonable cause to\nbelieve that such reports and information are needed to further the\npresent investigation;\n (w) for reports alleging abuse or neglect of children, members of a\ncitizen review panel as established pursuant to section three hundred\nseventy-one-b of this chapter; provided, however, such members shall not\ndisclose to any person or governmental official any identifying\ninformation which the panel has been provided and shall not make public\nother information unless otherwise authorized by statute;\n (x) officers and employees of the education department and, where\napplicable, the department of health, for the purpose of investigating\ncharges and maintaining professional discipline proceedings against the\nprofessional license of the subject of the report pursuant to Title VIII\nof the education law, and to employees of the education department for\nthe purpose of investigating charges and maintaining good moral\ncharacter proceedings against the teaching, school administrator or\nschool leader certificate or license of the subject of the report; and\n (y) the independent agency designated pursuant to subdivision (b) of\nsection five hundred fifty-eight of the executive law, provided that\nsuch information is relevant to a matter within the legal authority of\nsuch agency.\n 3. (a) The executive director, in consultation with the applicable\nstate oversight agency may disclose information regarding the abuse or\nneglect of a vulnerable person as set forth in this subdivision, and the\ninvestigation thereof and any services related thereto, to persons other\nthan those authorized to receive records under subdivision two of this\nsection if otherwise permitted by applicable federal law and if he or\nshe determines that such disclosure shall not be contrary to the best\ninterests of the vulnerable person and any one of the following factors\nare present:\n (i) the subject of the report has been charged in an accusatory\ninstrument with committing a crime related to a report maintained in the\nvulnerable persons' central register; or\n (ii) the investigation of the abuse or neglect of the vulnerable\nperson or the provision of services by the facility or provider agency\nhas been publicly disclosed in a report required to be disclosed in the\ncourse of their official duties, by a law enforcement agency or\nofficial, a district attorney, any other state or local investigative\nagency or official, or by judge of the unified court system; or\n (iii) there has been a prior knowing, voluntary, public disclosure by\nan individual concerning a report of abuse or neglect in which such\nindividual is named as the subject of the report; or\n (iv) the vulnerable person named in the report has died or the report\ninvolves the near fatality of a vulnerable person. For the purposes of\nthis section, "near fatality" means an act that results in the\nvulnerable person being placed, as certified by a physician, in serious\nor critical condition.\n (b) For the purposes of this subdivision, only the following\ninformation may be disclosed:\n (i) the name of the abused or neglected vulnerable person;\n (ii) the determination by the justice center and the findings upon\nwhich such determination was based;\n (iii) identification of services provided or actions, if any, taken\nregarding the vulnerable person named in the report and his or her\nfamily as a result of any such report or reports;\n (iv) whether any report of abuse or neglect regarding such vulnerable\nperson has been "substantiated" as maintained by the vulnerable persons'\ncentral register;\n (v) any actions taken by the state oversight agency or the facility or\nprovider agency in response to reports of abuse or neglect of the\nvulnerable person to the vulnerable persons' central register, including\nbut not limited to actions taken after each and every report of abuse or\nneglect of such person and the dates of such reports; and\n (vi) any extraordinary or pertinent information concerning the\ncircumstances of the abuse or neglect of the vulnerable person and the\ninvestigation thereof, where the executive director, in consultation\nwith the commissioner of the applicable state oversight agency\ndetermines such disclosure is consistent with the public interest.\n (c) Information may be disclosed pursuant to this subdivision as\nfollows:\n (i) information released prior to the completion of the investigation\nof a report shall be limited to a statement that a report is "under\ninvestigation";\n (ii) when there has been a prior disclosure pursuant to paragraph (a)\nof this subdivision, information released in a case in which the\ninvestigation of the report has been completed but not substantiated,\ninformation shall be limited to the statement that "the investigation\nhas been completed and the report has been unsubstantiated";\n (iii) if the report has been "substantiated" then information may be\nreleased pursuant to paragraph (a) of this subdivision.\n (d) Any disclosure of information pursuant to this subdivision shall\nbe consistent with the provisions of paragraph (b) of this subdivision.\nSuch disclosure shall not identify or provide an identifying description\nof the source of the report, and shall not identify the name of the\nabused or neglected vulnerable person's siblings or children, the parent\nor other person legally responsible for such person or any other members\nof such person's household.\n (e) In determining, pursuant to paragraph (a) of this subdivision,\nwhether disclosure will be contrary to the best interests of the\nvulnerable person, the executive director shall consider the interest in\nprivacy of the vulnerable person and such person's siblings or children,\nthe parent or other person legally responsible for such person or any\nother members of such person's household.\n (f) Except as it applies directly to the cause of the abuse or neglect\nof the vulnerable person, nothing in this subdivision shall be deemed to\nauthorize the release or disclosure of the substance or content of any\npsychological, psychiatric, therapeutic, clinical or medical reports,\nevaluations or like materials or information pertaining to such person\nor such person's family. Any such information that applies directly to\nthe cause of the abuse or neglect of the vulnerable person may be\ndisclosed only if disclosure is not otherwise restricted by applicable\nfederal or state laws.\n 4. A person given access to the names or other information identifying\nthe subject of the report or other persons named in the report shall not\ndivulge or make public such identifying information unless he or she is\na district attorney or other law enforcement official and the purpose is\nto initiate court action or the disclosure is necessary in connection\nwith the investigation or prosecution of the subject of the report for a\ncrime alleged to have been committed by the subject against another\nperson named in the report. Nothing in this section shall be construed\nto permit any release, disclosure or identification of the names or\nidentifying descriptions of persons who have reported suspected abuse or\nneglect to the vulnerable persons' central register or the state\noversight agency, facility or provider agency or other entity where such\npersons are employed or with which they are associated without such\npersons' written permission except to persons, officials, and agencies\nenumerated in paragraphs (f), (g), (l), (m) and (v) of subdivision two\nof this section. To the extent that persons or agencies are given access\nto information pursuant to paragraphs (c), (d), (e), (k), (l), (m), (n)\nand (p) of subdivision two of this section, such persons or agencies may\ngive and receive such information to each other in order to facilitate\nan investigation conducted, or the provision of services, by such\npersons or agencies.\n 5. Notwithstanding any contrary provision of this section, mental\nhygiene legal service shall have access to all information, books,\nrecords and data as provided for in subdivision (d) of section 47.03 of\nthe mental hygiene law.\n