New York Laws
Article 28 - Hospitals
2803-D - Reporting Abuses of Persons Receiving Care or Services in Residential Health Care Facilities.

(b) The commissioner may make a written determination, based on the
findings of the investigation, that sufficient credible evidence exists
to support a conclusion that a person required by this section to report
suspected abuse, mistreatment, neglect or misappropriation of property
had reasonable cause to believe that such an incident occurred and
failed to report such incident. 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 the commissioner has determined has failed to report as
required by this section.
(c) All information relating to any allegation which the commissioner
has determined would not be sustained shall be sealed one hundred twenty
days following notification of such determination to the person who made
the report pursuant to this section, unless a proceeding pertaining to
such allegation is pending pursuant to article seventy-eight of the
civil practice law and rules. Whenever information is sealed, the
commissioner shall notify any official notified pursuant to paragraph
(a) of this subdivision that the information has been sealed.
(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 abuse, neglect, mistreatment
or misappropriation of property, or as having failed to report such an
incident, may request in writing that the commissioner amend or 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
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
written determination should be amended or 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 sealed, the commissioner shall
notify any official notified pursuant to paragraph (a) of this
subdivision that the information has been sealed.
(e) Except as hereinafter provided, any report, record of the
investigation of such report and all other information related to such
report shall be confidential and shall be exempt from disclosure under
article six of the public officers law.
(f) Information relating to a report made pursuant to this section
shall be disclosed under any of the following conditions:
(i) pursuant to article six of the public officers law after sealing
or amendment, if any, is made in accordance with a hearing conducted
pursuant to this section, or at least forty-five days after a written
determination is made by the commissioner concerning such report,
whichever is later; provided, however, that the identity of the person
who made the report, the victim, or any other person named, except a
person who the commissioner has determined committed an act of abuse,
neglect, mistreatment or misappropriation of property, shall not be
disclosed unless such person authorizes such disclosure;
(ii) as may be required by the penal law or any lawful order or
warrant issued pursuant to the criminal procedure law; or
(iii) to a person who has requested a hearing pursuant to this
section, information relating to the determination upon which the
hearing is to be conducted; provided, however, that the identity of the
person who made the report or any other person who provided information
in an investigation of the report shall not be disclosed unless such
person authorizes such disclosure.
(g) Where appropriate, the commissioner shall report instances of
abuse, mistreatment, neglect or misappropriation of property or the
failure to report as required by this section, to the appropriate
committee on professional conduct for the professions enumerated in
subdivision one of this section when a determination has been made after
the commissioner has provided an opportunity to be heard. The
commissioner shall report instances of abuse, mistreatment, neglect,
misappropriation of property by a nurse aide or other unlicensed
individual and any brief statement by the nurse aide or other unlicensed
individual disputing the finding to the nursing home nurse aide registry
established pursuant to section twenty-eight hundred three-j of this
article when a determination has been made after the commissioner has
provided an opportunity to be heard.
7. In addition to any other penalties prescribed by law, any person
who commits an act of abuse, neglect, mistreatment or misappropriation
of property, or who fails to report such an act as provided in this
section, shall be deemed to have violated this section and shall be
liable for a penalty pursuant to section twelve of this chapter after an
opportunity to be heard pursuant to this section.
8. No residential health care facility or officer or employee thereof
shall discharge or in any manner discriminate or retaliate against any
person in any residential health care facility, or any relative, or
sponsor thereof, or against any employee of the facility, or against any
other person because such person, relative, legal representative,
sponsor or employee has made, or is about to make, a report pursuant to
this section, or has testified, or is about to testify, in any

proceeding relating to abuse, mistreatment, neglect or misappropriation
of property of a person receiving care or services in a residential
health care facility. The supreme court may grant injunctive relief to
any person subject to such retaliation or discrimination. Any violation
of this subdivision shall be punishable pursuant to section twelve of
this chapter.
9. No later than March fifteenth of every year the commissioner shall
prepare and transmit to the governor and the legislature a report on the
incidents of abuse, mistreatment, neglect and misappropriation of
property of persons receiving care or services in residential health
care facilities. No individual identifying information concerning any
individual subjected to abuse, mistreatment, neglect or misappropriation
of property shall be disclosed in a report made pursuant to this
subdivision, or in any other report, except information which would be
available pursuant to article six of the public officers law as provided
in this section. Nothing in this section shall be construed to prohibit
the maintenance or disclosure of, or require the sealing of, statistical
data which would not reveal the identity of any person.
10. An investigation shall be made of each incident reported pursuant
to this section.
11. The commissioner shall adopt regulations necessary to implement
this section.

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