NY Soc Serv L § 496 (2021)
2021 New York Laws SOS - Social Services Article 11 - Protection of People With Special Needs 496 - Confidentiality.

§  496.  Confidentiality.  1.  Unless  an  investigation  of  a report conducted  pursuant  to  this  article  has  been   substantiated,   all information, including information identifying the subject of the report and  other persons named in the report, shall be sealed forthwith by the vulnerable persons' central register, the state oversight agency and the facility or provider agency. Such reports may only be unsealed and  made available,  consistent  with  any other applicable state or federal law, to:  (a) the state agency operating, licensing or certifying a facility  or program  for  the  purpose  of  monitoring or licensing such facility or program;  (b) any state agency operating, licensing, or certifying a facility or provider agency when  investigating  a  report  of  suspected  abuse  or neglect  involving the subject of a previously sealed report accepted by the vulnerable persons' central register;  (c) the subject of the report;  (d) a court of relevant jurisdiction or  a  law  enforcement  official when  such  court  or  official verifies that the report is necessary to conduct an  active  investigation  or  prosecution  of  a  violation  of subdivision four of section 240.50 of the penal law;  (e)  the  justice  center  medical  review  board, for the purposes of preparing a fatality report pursuant to section five  hundred  fifty-six of the executive law;  (f)  the  independent agency designated pursuant to subdivision (b) of section five hundred fifty-eight of the  executive  law,  provided  that such  information  is relevant to a matter within the legal authority of such agency; or  (g) other persons named in  the  report,  as  defined  in  subdivision thirteen  of  section  four  hundred  eighty-eight of this article which includes, but  is  not  limited  to,  the  service  recipient's  parent, guardian  or other person legally responsible for such person; provided, however, that the names and other personally identifying information  of custodians  and  other  service  recipients shall not be included unless such   custodians   and   service   recipients   authorize   disclosure. Notwithstanding  the  prohibitions  on non-redisclosure set forth in the closing sentence of this subdivision, the service  recipient,  and  such service recipient's parent, guardian or other person legally responsible for  such  service  recipient  may disclose information and reports made available pursuant to this paragraph  to  an  attorney,  who  shall  not further  disclose  except  as  is  necessary for use by such attorney in rendering advice, assistance and representation. When a report  is  unsealed,  persons  given  access  to  it  shall  not redisclose  such reports except as necessary to conduct such appropriate investigation or prosecution and shall request that the court redact any copies of such reports produced in any court proceeding  to  remove  the names  of  those persons irrelevant to the proceeding such as the source of the report, the name of the subject, and other persons named  in  the reports;  or  that  the court issue an order protecting the names of the subjects and other persons named in the reports from public disclosure.   2. Reports made pursuant to this article and found to be substantiated as  well  as  any  other  information  obtained,  reports   written   or photographs  taken  concerning  such  reports  in  the possession of the justice center, a  state  oversight  agency,  a  delegate  investigatory entity,  facility  or  provider  agency covered by this article shall be confidential and shall not  be  disclosed  to  any  other  party  unless authorized  pursuant  to  this  section or any other applicable state or federal law. In the event that other applicable  state  or  federal  law provisions are more restrictive than the provisions of this section, the  provisions of such other state or federal law shall apply. In accordance with this section, such information shall be made available only to:  (a) a person who is the subject of the report;  (b)  other  persons  named  in  the report, which includes, but is not limited to, the service recipient's parent,  guardian  or  other  person legally responsible for such person. Notwithstanding the prohibitions on non-redisclosure  set  forth  in  subdivision  four of this section, the service recipient, and such  service  recipient's  parent,  guardian  or other person legally responsible for such service recipient may disclose information  and reports made available pursuant to this paragraph to an attorney, who shall not further disclose except as is necessary for  use by such attorney in rendering advice, assistance and representation;  (c) the justice center;  (d) the applicable state oversight agency, the director or operator of the  applicable  facility  or  provider  agency and, as appropriate, the local social services commissioner, the commissioner of  the  office  of children and family services, or the school district placing the service recipient,  or  an  agency  providing  adult  protective services to the service recipient;  (e) a physician who has before him or her a service recipient whom  he or she reasonably suspects may be or may have been abused or neglected;  (f)  a  court,  upon  a  finding that the information in the record is relevant to the determination of an issue before the court;  (g) a grand jury, upon a finding that the information in the record is necessary for the determination of charges before the grand jury;  (h)  any  appropriate  state  legislative  committee  responsible  for legislation  affecting  vulnerable  persons,  provided, however, that no information identifying or tending  to  identify  the  subjects  of  the report or other persons named in the report shall be made available;  (i)  any  person  engaged  in  a bona fide research purpose; provided, however, that no information identifying  or  tending  to  identify  the subjects  of  the  report  or other persons named in the report shall be made available to the researcher unless it is  absolutely  essential  to the research purpose and the justice center, after consultation with the commissioner  of  the  applicable  state  oversight  agency, gives prior approval;  (j) a facility or provider agency,  other  providers  of  services  to vulnerable  persons  in  programs  licensed  or  certified  by any state oversight agency, or any other provider agency as defined in subdivision three of section  four  hundred  twenty-four-a  of  this  chapter  or  a licensing  agency as defined in subdivision four of section four hundred twenty-four-a of this chapter, in  accordance  with  the  provisions  of subdivision two of section four hundred ninety-five of this article;  (k) a probation service regarding a person about whom it is conducting an  investigation  pursuant  to  article  three  hundred  ninety  of the criminal procedure law, or a probation  service  or  the  department  of corrections  and  community  supervision  regarding a person to whom the service or department is providing supervision pursuant to article sixty of the penal law or article eight  of  the  correction  law,  where  the service or department requests the information upon a certification that such  information  is necessary to conduct its investigation, that there is reasonable cause to believe that the subject of an  investigation  is the subject of a substantiated report and that there is reasonable cause to  believe  that such records are necessary to the investigation by the probation service  or  the  department,  provided,  however,  that  only substantiated reports shall be furnished pursuant to this subdivision;  (l)   a   district   attorney,   an  assistant  district  attorney  or investigator employed by the office of  a  district  attorney,  a  sworn  officer  of  the  division  of  state police, of the regional state park police, of a city police department, or of a  county,  town  or  village police  department or county sheriff's office or department upon written verification  that  such  information is necessary to conduct a criminal investigation or criminal prosecution of a person,  and  that  there  is reasonable cause to believe that such person is the subject of a report; provided,  however,  that  only substantiated reports shall be furnished pursuant to this subdivision;  (m) the New York city department of investigation; provided,  however, that  no  information  identifying  the  subjects of the report or other persons named in the report shall be made available to the department of investigation unless such information is essential to  an  investigation within  the  legal  authority of the department of investigation and the justice center or the applicable  state  oversight  agency  gives  prior approval;  (n)  a  provider  or  coordinator  of  services to which a facility or provider agency or social  services  district  has  referred  a  service recipient  or  a  service  recipient's  family  or  to  whom the service recipient or the recipient's family  have  referred  themselves  at  the request  of  such  agency or social services district, when said service recipient is reported to the vulnerable persons' central register as the vulnerable person and when the records, reports or other information are necessary to  enable  the  provider  or  coordinator  to  establish  and implement  a  plan  of  service for the service recipient or the service recipient's family, or to monitor  the  provision  and  coordination  of services  and the circumstances of the service recipient and the service recipient's family, or to directly provide services in  accordance  with requirements established by the applicable state oversight agency to the extent  that the sharing of such information is not otherwise prohibited by federal law; provided, however, a provider or coordinator of services given access to information concerning a service recipient  pursuant  to this  paragraph  shall  be  authorized to redisclose such information to other persons or agencies which also provide  services  to  the  service recipient  or  the  service  recipient's family only if an agreement has been or will be reached between the provider or coordinator  of  service and  such  facility  or provider agency, operating state agency or local district. An agreement entered into pursuant  to  this  paragraph  shall include  the  specific  agencies  and  categories of individuals to whom redisclosure by the provider or coordinator of services  is  authorized. Persons  or  agencies  given  access  to  information  pursuant  to this paragraph may exchange such  information  in  order  to  facilitate  the provision  or  coordination  of services to the service recipient or the service recipient's family;  (o) a disinterested person making an investigation pursuant to section one hundred sixteen of the domestic relations law,  provided  that  such disinterested  person  shall only make this information available to the judge before whom the adoption proceeding is pending;  (p) a criminal justice agency conducting an investigation of a missing child or vulnerable adult where there is reason to  suspect  information in  a  substantiated report under this article is needed to further such investigation;  (q) the director or operator of the facility or provider  agency  and, as  appropriate, the local social services commissioner, commissioner of the office of children and family services, or school district placing a child in that program, the applicable executive  agency,  and,  for  any report  involving abuse or neglect of a child, any attorney appointed to represent the child whose appointment has been  continued  by  a  family court  judge  during  the  term  of  the  placement  and  subject to the  limitations contained  in  section  four  hundred  ninety-five  of  this article;  (r)  for  any  report  alleging  abuse  or neglect of a child, a child protective service of another state when such service certifies that the records and reports are necessary in order to conduct a child  abuse  or maltreatment investigation within its jurisdiction of the subject of the report   and  shall  only  be  used  for  purposes  of  conducting  such investigation and will not be redisclosed to any other person or agency;  (s) an attorney  for  a  child,  appointed  pursuant  to  section  one thousand  sixteen  of the family court act, at any time such appointment is in effect, in relation to any report in which the respondent  in  the proceeding  in  which  the  attorney  for  the child is appointed is the subject or another person named in the report, pursuant to sections  one thousand  thirty-nine-a and one thousand fifty-two-a of the family court act;  (t) officers and employees of the state comptroller, for purposes of a duly authorized performance audit, provided that such comptroller  shall have  certified  to  the  keeper  of  such  records  that  he or she has instituted procedures developed in consultation with the justice  center to limit access to service recipient-identifiable information to persons requiring   such   information  for  purposes  of  the  audit  and  that appropriate controls and prohibitions are imposed on  the  dissemination of  service  recipient-identifiable information contained in the conduct of the audit.  (i)  Information  pertaining  to  the  substance  or  content  of  any psychological,  psychiatric,  therapeutic,  clinical or medical reports, evaluations  or  like  materials  or  information  pertaining  to   such vulnerable person or such person's family shall not be made available to such  officers  and  employees  unless disclosure of such information is absolutely essential to the specific  audit  activity  and  the  justice center gives prior written approval.  (ii)   Any   failure   to  maintain  the  confidentiality  of  service recipient-identifiable information shall  subject  such  comptroller  or officer  to  denial  of any further access to records until such time as the audit agency has reviewed its  procedures  concerning  controls  and prohibitions  imposed  on  the dissemination of such information and has taken all reasonable and appropriate steps to eliminate such  lapses  in maintaining  confidentiality  to the satisfaction of the justice center. Such justice center shall establish the grounds for denial of access  to records  contained under this section and shall recommend as necessary a plan of remediation to the audit agency.  Except  as  provided  in  this section, nothing in this subparagraph shall be construed as limiting the powers  of such comptroller or officer to access records which he or she is otherwise authorized to audit or obtain under  any  other  applicable provision of law;  (u)  an  entity  with  appropriate legal authority in another state to license, certify or otherwise approve prospective  foster  and  adoptive parents where disclosure of information regarding the prospective foster or  adoptive parents and other persons over the age of eighteen residing in the home of such prospective parents is required by paragraph  twenty of subdivision (a) of section six hundred seventy-one of title forty-two of the United States Code;  (v)  a  social services official who is investigating whether an adult is in need of protective services in accordance with the  provisions  of section four hundred seventy-three of this chapter or a child is in need of  child protective services pursuant to the provisions of title six of article six of this chapter, when such official has reasonable cause  to  believe  that  such  reports  and  information are needed to further the present investigation;  (w)  for  reports  alleging abuse or neglect of children, members of a citizen review panel as established pursuant to  section  three  hundred seventy-one-b of this chapter; provided, however, such members shall not disclose   to  any  person  or  governmental  official  any  identifying information which the panel has been provided and shall not make  public other information unless otherwise authorized by statute;  (x)  officers  and  employees  of  the education department and, where applicable, the department of health, for the purpose  of  investigating charges  and maintaining professional discipline proceedings against the professional license of the subject of the report pursuant to Title VIII of the education law, and to employees of the education  department  for the   purpose  of  investigating  charges  and  maintaining  good  moral character proceedings against  the  teaching,  school  administrator  or school leader certificate or license of the subject of the report; and  (y)  the  independent agency designated pursuant to subdivision (b) of section five hundred fifty-eight of the  executive  law,  provided  that such  information  is relevant to a matter within the legal authority of such agency.   3. (a) The executive director, in  consultation  with  the  applicable state  oversight  agency may disclose information regarding the abuse or neglect of a vulnerable person as set forth in this subdivision, and the investigation thereof and any services related thereto, to persons other than those authorized to receive records under subdivision two  of  this section  if  otherwise  permitted by applicable federal law and if he or she determines that such disclosure shall not be contrary  to  the  best interests  of the vulnerable person and any one of the following factors are present:  (i) the subject of the  report  has  been  charged  in  an  accusatory instrument with committing a crime related to a report maintained in the vulnerable persons' central register; or  (ii)  the  investigation  of  the  abuse  or neglect of the vulnerable person or the provision of services by the facility or  provider  agency has  been publicly disclosed in a report required to be disclosed in the course of  their  official  duties,  by  a  law  enforcement  agency  or official,  a  district  attorney, any other state or local investigative agency or official, or by judge of the unified court system; or  (iii) there has been a prior knowing, voluntary, public disclosure  by an  individual  concerning  a  report  of abuse or neglect in which such individual is named as the subject of the report; or  (iv) the vulnerable person named in the report has died or the  report involves  the  near fatality of a vulnerable person. For the purposes of this  section,  "near  fatality"  means  an  act  that  results  in  the vulnerable  person being placed, as certified by a physician, in serious or critical condition.  (b)  For  the  purposes  of  this  subdivision,  only  the   following information may be disclosed:  (i) the name of the abused or neglected vulnerable person;  (ii)  the  determination  by  the justice center and the findings upon which such determination was based;  (iii) identification of services provided or actions,  if  any,  taken regarding  the  vulnerable  person  named  in  the report and his or her family as a result of any such report or reports;  (iv) whether any report of abuse or neglect regarding such  vulnerable person has been "substantiated" as maintained by the vulnerable persons' central register;  (v) any actions taken by the state oversight agency or the facility or provider  agency  in  response  to  reports  of  abuse or neglect of the vulnerable person to the vulnerable persons' central register, including but not limited to actions taken after each and every report of abuse or neglect of such person and the dates of such reports; and  (vi)   any  extraordinary  or  pertinent  information  concerning  the circumstances of the abuse or neglect of the vulnerable person  and  the investigation  thereof,  where  the  executive director, in consultation with  the  commissioner  of  the  applicable  state   oversight   agency determines such disclosure is consistent with the public interest.  (c)  Information  may  be  disclosed  pursuant  to this subdivision as follows:  (i) information released prior to the completion of the  investigation of  a  report  shall  be  limited to a statement that a report is "under investigation";  (ii) when there has been a prior disclosure pursuant to paragraph  (a) of  this  subdivision,  information  released  in  a  case  in which the investigation of the report has been completed  but  not  substantiated, information  shall  be  limited to the statement that "the investigation has been completed and the report has been unsubstantiated";  (iii) if the report has been "substantiated" then information  may  be released pursuant to paragraph (a) of this subdivision.  (d)  Any  disclosure of information pursuant to this subdivision shall be consistent with the provisions of paragraph (b) of this  subdivision. Such disclosure shall not identify or provide an identifying description of  the  source  of  the  report, and shall not identify the name of the abused or neglected vulnerable person's siblings or children, the parent or other person legally responsible for such person or any other members of such person's household.  (e) In determining, pursuant to paragraph  (a)  of  this  subdivision, whether  disclosure  will  be  contrary  to  the  best  interests of the vulnerable person, the executive director shall consider the interest in privacy of the vulnerable person and such person's siblings or children, the parent or other person legally responsible for such  person  or  any other members of such person's household.  (f) Except as it applies directly to the cause of the abuse or neglect of the vulnerable person, nothing in this subdivision shall be deemed to authorize  the  release or disclosure of the substance or content of any psychological, psychiatric, therapeutic, clinical  or  medical  reports, evaluations  or  like materials or information pertaining to such person or such person's family. Any such information that applies  directly  to the  cause  of  the  abuse  or  neglect  of the vulnerable person may be disclosed only if disclosure is not otherwise restricted  by  applicable federal or state laws.   4. A person given access to the names or other information identifying the subject of the report or other persons named in the report shall not divulge  or make public such identifying information unless he or she is a district attorney or other law enforcement official and the purpose is to initiate court action or the disclosure is  necessary  in  connection with the investigation or prosecution of the subject of the report for a crime  alleged  to  have  been  committed by the subject against another person named in the report. Nothing in this section shall  be  construed to  permit  any  release,  disclosure  or identification of the names or identifying descriptions of persons who have reported suspected abuse or neglect to  the  vulnerable  persons'  central  register  or  the  state oversight agency, facility or provider agency or other entity where such persons  are  employed  or  with  which they are associated without such persons' written permission except to persons, officials,  and  agencies  enumerated  in  paragraphs (f), (g), (l), (m) and (v) of subdivision two of this section. To the extent that persons or agencies are given access to information pursuant to paragraphs (c), (d), (e), (k), (l), (m),  (n) and (p) of subdivision two of this section, such persons or agencies may give  and  receive such information to each other in order to facilitate an investigation conducted,  or  the  provision  of  services,  by  such persons or agencies.   5.  Notwithstanding  any  contrary  provision  of this section, mental hygiene legal service shall  have  access  to  all  information,  books, records  and data as provided for in subdivision (d) of section 47.03 of the mental hygiene law.