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A05355 Summary:

BILL NOA05355
 
SAME ASSAME AS S03779
 
SPONSORDiPietro
 
COSPNSR
 
MLTSPNSR
 
Amd 400.00 & 400.02, Pen L
 
Prohibits the release of personal medical records or information without a warrant or express written authorization of the individual; prohibits the condition of the consent of release for an application.
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A05355 Actions:

BILL NOA05355
 
02/08/2017referred to codes
01/03/2018referred to codes
06/05/2018held for consideration in codes
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A05355 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5355
 
SPONSOR: DiPietro
  TITLE OF BILL: An act to amend the penal law, in relation to prohib- iting the release of personal medical records or information without a warrant or express written authorization of the individual   SUMMARY OF SPECIFIC PROVISIONS: SECTION 1 amends subdivision 4 of section 400.00 of the Penal Law to provide that notwithstanding any. other provision of law to the contra- ry, neither the state police, the division of criminal justice services, nor any other law enforcement agency or employee thereof shall be permitted access to personal medical records and other medical informa- tion other than those records required to sent by the Department of Mental Hygiene without a properly issued warrant, or the express, nota- rized permission of the individual whose information is sought. SECTION 2 Amends section 400.02 of the penal Law to provide that notwithstanding any other provision of law to the contrary, neither the state police, the division of criminal justice services, nor any other law enforcement agency or employee thereof shall be permitted access to personal medical records and other medical information other than those records required to sent by the Department of Mental Hygiene without a properly issued warrant, or the express, notarized permission of the individual whose information is sought law enforcement. SECTION 3 amends subdivision 3 of section 400.00 by adding a new para- graph (c) to provide (i) that an application for a firearms license or the renewal thereof shall not require the applicant to consent to the release of their personal medical records and other medical information, other than records required to be provided by the Department of Mental Hygiene, as a condition of receiving or retaining such license, unless the investigating agency has a reasonable belief that a medical issue exists which would justify the denial of a license pursuant to this section; and (ii) that the state police, the division of criminal justice services, and any other law enforcement agency or employee ther- eof may request a consent from individuals for the release of their personal medical records or other medical information where such law enforcement agency has a reasonable belief that a medical issue exists which would justify the suspension or revocation for license issued pursuant to this section. SECTION 4 provides that this act shall take effect immediately after it shall become law.   JUSTIFICATION: Recently, reports have arisen that law enforcement agencies have obtained medical information which has led them to notify local county clerks that the firearm licenses of identified individuals should be revoked or suspended, and that the individual's firearms should be surrendered. Generally, medical records are confidential under Federal HIPAA laws, and law enforcement officers should not be entitled to search these or any other confidential records without first obtaining a warrant for such searches or permission from the individual whose records have been accessed. This bill clarifies that the new SAFE Act, does not give blanket liberties to law enforcement to search New Yorkers medical records, even those who have legally applied for or been issued a firearm license, without proper due process or permission. In addi- tion, the bill clarifies that no applicant for a firearm license should be required to give a blanket and continuing authorization for law enforcement to access his or her medical records, other than those kept by the Department of Mental Hygiene, as a condition of obtaining or retaining a license, when there is no probable cause to believe that there are any medical issues that might justify the refusal, revocation or suspension of such license.   LEGISLATIVE HISTORY: A10401- 2015/16   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: This act shall take effect immediately.
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A05355 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5355
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 8, 2017
                                       ___________
 
        Introduced by M. of A. DiPIETRO -- read once and referred to the Commit-
          tee on Codes
 
        AN ACT to amend the penal law, in relation to prohibiting the release of
          personal  medical  records or information without a warrant or express
          written authorization of the individual

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Subdivision  4  of  section  400.00  of the penal law, as
     2  amended by chapter 1 of the laws of 2013, is amended to read as follows:
     3    4. Investigation. Before a license is issued or renewed,  there  shall
     4  be an investigation of all statements required in the application by the
     5  duly  constituted police authorities of the locality where such applica-
     6  tion is made, including but not limited to such records as may be acces-
     7  sible to the division of state police or division  of  criminal  justice
     8  services  pursuant  to section 400.02 of this article. For that purpose,
     9  the records of the  appropriate  office  of  the  department  of  mental
    10  hygiene  concerning  previous or present mental illness of the applicant
    11  shall be available for inspection by the investigating  officer  of  the
    12  police  authority.  In  order to ascertain any previous criminal record,
    13  the investigating officer  shall  take  the  fingerprints  and  physical
    14  descriptive  data in quadruplicate of each individual by whom the appli-
    15  cation is signed and verified. Two copies of such fingerprints shall  be
    16  taken  on  standard  fingerprint cards eight inches square, and one copy
    17  may be taken on a card supplied for that purpose by the  federal  bureau
    18  of  investigation;  provided,  however,  that in the case of a corporate
    19  applicant that has already been issued a dealer in firearms license  and
    20  seeks  to  operate  a  firearm  dealership  at  a  second  or subsequent
    21  location, the original fingerprints on file may be used to ascertain any
    22  criminal record in the second or subsequent application  unless  any  of
    23  the  corporate  officers  have  changed  since the prior application, in
    24  which case the  new  corporate  officer  shall  comply  with  procedures
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05965-01-7

        A. 5355                             2
 
     1  governing  an  initial application for such license. When completed, one
     2  standard card shall be forwarded to and  retained  by  the  division  of
     3  criminal  justice  services  in  the  executive department, at Albany. A
     4  search  of  the  files  of such division and written notification of the
     5  results of the search to the investigating officer shall be made without
     6  unnecessary delay. Thereafter, such division shall notify the  licensing
     7  officer  and the executive department, division of state police, Albany,
     8  of any criminal record of the applicant filed therein subsequent to  the
     9  search  of its files. A second standard card, or the one supplied by the
    10  federal bureau of investigation, as the case may be, shall be  forwarded
    11  to that bureau at Washington with a request that the files of the bureau
    12  be searched and notification of the results of the search be made to the
    13  investigating  police authority. Of the remaining two fingerprint cards,
    14  one shall be filed with the  executive  department,  division  of  state
    15  police,  Albany,  within ten days after issuance of the license, and the
    16  other remain on file with the investigating police  authority.  No  such
    17  fingerprints  may be inspected by any person other than a peace officer,
    18  who is acting pursuant to his  special  duties,  or  a  police  officer,
    19  except  on  order of a judge or justice of a court of record either upon
    20  notice to the licensee or without notice, as the judge  or  justice  may
    21  deem  appropriate.  Upon  completion  of  the  investigation, the police
    22  authority shall report the results  to  the  licensing  officer  without
    23  unnecessary  delay.    Notwithstanding any other provision of law to the
    24  contrary neither the state police,  the  division  of  criminal  justice
    25  services, nor any other law enforcement agency or employee thereof shall
    26  be permitted to access personal medical records and other medical infor-
    27  mation  other  than records required to be provided by the department of
    28  mental hygiene without a properly issued warrant, or the  express  writ-
    29  ten, notarized permission of the individual whose information is sought.
    30    §  2.  Section  400.02  of the penal law, as added by chapter 1 of the
    31  laws of 2013, is amended to read as follows:
    32  § 400.02 Statewide license and record database.
    33    1. There shall be a statewide license and record database which  shall
    34  be  created  and  maintained by the division of state police the cost of
    35  which shall not be borne  by  any  municipality.  Records  assembled  or
    36  collected  for  purposes  of  inclusion  in  such  database shall not be
    37  subject to disclosure pursuant to article six  of  the  public  officers
    38  law.  Records  containing  granted license applications shall be period-
    39  ically checked by the division  of  criminal  justice  services  against
    40  criminal  conviction, mental health, and all other records as are neces-
    41  sary to determine their continued accuracy as well as whether  an  indi-
    42  vidual  is  no  longer  a valid license holder. The division of criminal
    43  justice services shall also check pending applications made pursuant  to
    44  this  article against such records to determine whether a license may be
    45  granted. All state agencies shall cooperate with the division of  crimi-
    46  nal  justice  services,  as otherwise authorized by law, in making their
    47  records available for such checks.  The  division  of  criminal  justice
    48  services, upon determining that an individual is ineligible to possess a
    49  license, or is no longer a valid license holder, shall notify the appli-
    50  cable  licensing official of such determination and such licensing offi-
    51  cial shall not issue a license or revoke such license  and  any  weapons
    52  owned  or  possessed by such individual shall be removed consistent with
    53  the provisions of subdivision eleven of section 400.00 of this  article.
    54  Local  and  state law enforcement shall have access to such database, as
    55  otherwise authorized by law, in the performance of their duties. Records

        A. 5355                             3
 
     1  assembled or collected for purposes of inclusion in the database  estab-
     2  lished by this section shall be released pursuant to a court order.
     3    2.  Notwithstanding any other provision of law to the contrary neither
     4  the  state  police,  the  division of criminal justice services, nor any
     5  other law enforcement agency or employee thereof shall be  permitted  to
     6  access personal medical records and other medical information other than
     7  records  required  to  be  provided  by the department of mental hygiene
     8  without a properly issued warrant, or  the  express  written,  notarized
     9  permission of the individual whose information is sought.
    10    §  3.  Subdivision  3 of section 400.00 of the penal law is amended by
    11  adding a new paragraph (c) to read as follows:
    12    (c) (i) The application for a license to  carry,  possess,  repair  or
    13  dispose  of  firearms,  or the renewal thereof, pursuant to this section
    14  shall not require the applicant to  consent  to  the  release  of  their
    15  personal  medical  records  and  other  medical  information, other than
    16  records required to be provided by the department of mental hygiene,  as
    17  a  condition  of receiving or retaining such license unless the investi-
    18  gating agency has a reasonable belief that a medical issue exists  which
    19  would justify the denial of a license pursuant to this section.
    20    (ii)  The state police, the division of criminal justice services, and
    21  any other law enforcement agency  or  employee  thereof  may  request  a
    22  consent  from  individuals  for  the  release  of their personal medical
    23  records or other medical information where such law  enforcement  agency
    24  has  a reasonable belief that a medical issue exists which would justify
    25  the suspension or revocation  of  a  license  issued  pursuant  to  this
    26  section.
    27    § 4. This act shall take effect immediately.
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