New York Legal Update

Treatment Of Prisoners With Serious Mental Illness

Yesterday Governor Spitzer signed new legislation that will purportedly enhance the care and treatment of prisoners with serious mental illness by limiting the instances in which these inmates can be placed in segregated confinement. The legislation will remove prisoners with serious mental illness from what are commonly known as “special housing units” – where inmates who have committed disciplinary infractions are segregated from the rest of the prison population. The legislation would also implement a more sensitive approach to the treatment of prisoners with psychiatric disorders while meeting prison safety and security standards.

Those inmates with serious mental illness who are not removed from segregated confinement will be offered a heightened level of care, including additional out-of-cell treatment and programming. Mental health clinicians will also conduct periodic mental health assessments of all inmates who remain in segregated confinement.

Inmates with serious mental illness who are diverted or removed from segregated confinement will be housed in residential mental health treatment units that are jointly operated by the Department of Correctional Services and the Office of Mental Health. In these units, inmates will receive out-of-cell therapeutic programming and mental health treatment. A formal review process involving the input of mental health clinicians will decrease the likelihood that inmates will cycle back into segregated confinement. A number of these new mental health treatment beds already exist and many more are in development.

The new legislation authorizes the Commission on Quality of Care and Advocacy for Persons with Disabilities to monitor the quality of mental health care provided to inmates and make recommendations about necessary improvements.

The full text of the new legislation can be found by Clicking Here and searching on Bill No. S06422.

New Laws For The New Year

On January 1st several new pieces of legislation take effect in the following areas:

Human Rights

Legislation (S. 5902/A. 8679) addresses Human Trafficking. It creates new felony crime designations that specifically target the methods used by traffickers to exploit their victims; establishes mechanisms to facilitate the delivery of social services to trafficking victims who are currently ineligible to receive such services; and forms a task force to coordinate implementation of the new laws and to ensure that the state's efforts are effective in fighting trafficking and protecting victims.

Legislation (S. 5670-B/A. 4932-B) clarifies the scope of protections against discrimination on the basis of disability in areas of public accommodation. Specifically, the new statute makes it a discriminatory practice under New York law for places of public accommodation to refuse to make reasonable modifications in policies, practices, or procedures necessary to afford access to facilities, privileges, or advantages to individuals with disabilities. The law will bring New York State law in alignment with the federal Americans with Disabilities Act. The new law also will allow persons with disabilities the ability to file certain complaints related to discriminatory practices through the State Division of Human Rights (DHR) rather than pursuing costly litigation in federal court. Individuals can bring their complaints to one of the numerous DHR centers around the State.

Health Care

Legislation (S. 3982-A/A. 8097-A)  requires that hospitals report a suspected or confirmed Hospital Acquired Infection (HAI) associated with another hospital to the originating hospital and to extend the State Immunization Information System to prevent a gap in reporting.

In order to ensure complete and accurate reporting of HAIs, health care facilities and providers must be able to notify each other of patients that are seen in more than one facility. This legislation provides facilities with the authority to share information in order to identify all sources of infection and to ensure appropriate care of individual patients. The legislation also promotes increased active surveillance, by requiring the collection of monthly infection data to provide immediate feedback to the reporting hospital.

The State Immunization Information System is a demonstration program that has been continued for a number of years. The system collects information provided by health care providers on a voluntary basis in order to track and monitor the immunization of children. Continuation of the voluntary immunization registry through today enabled the comprehensive collection of vaccination data until the mandated registry becomes effective January 1st.

Workers' Compensation

Legislation (A. 6163/S. 3322) reformed the state's archaic workers' compensation law earlier in the year. Provisions of the law which will become effective on January 1, 2008 include:

• Amending the Workers' Compensation Law to provide for the apportionment of the assessment against self-insurers and defines the term "pure premium calculation."
• Amending the Workers' Compensation Law to modify the method by which administrative expenses are assessed upon group self-insurers.

Consumer Protection

Legislation (S. 5050-C/A. 8406-B) - The Airline Bill of Rights -  creates a first in the nation consumer Bill of Rights for airline passengers, which requires carriers to provide passengers with food, water, fresh air, power, and working restrooms on any flight on which passengers have boarded the plane and the flight has been delayed for more than three hours. This law also creates an Office of the Airline Consumer Advocate within the Consumer Protection Board. The Consumer Advocate will oversee compliance with the airline passenger Bill of Rights.

Legislation (S. 4415/A. 7380) requires applicants for real estate appraiser licensing and certification to meet new education and experience standards established by the Federal Appraiser Qualifications Board, and also requires currently licensed and certified real estate appraisers to meet more stringent federal continuing education requirements. These measures are intended to reassure homeowners that their real estate appraisers have demonstrated a level of professionalism that meets federal standards.

The full text of any of the above laws can be found by Clicking Here and searching on the respective Senate "S." or Assembly "A." Bill No.

Airline Bill Of Rights Upheld By Federal Court

Late yesterday the U.S. District Court in Albany dismissed a lawsuit challenging New York's recently enacted Airline Bill of Rights. The law which goes into effect on January 1st provides that airlines operating in New York can be fined up to $1,000 a passenger if they do not supply water, fresh air, power and working restrooms during lengthy delays on the tarmac.

The suit was brought by the Air Transport Association, whose members carry more than 90 percent of U.S. passenger and cargo traffic. The Association believed that commercial aviation is best regulated by the federal government and not 50 individual states.

In dismissing the suit,  U.S. District Judge Lawrence Kahn concluded that the provisions of the Airline Bill of Rights constitute a health and safety issue and not airline "services" that can be regulated only by federal authorities. He stated, "Fresh air, water, sanitation and food are necessities in the extreme situation in which this act applies. It threatens the public health to contain people on grounded airplanes for hours without these necessities, particularly, though not exclusively, if passengers include diabetics, young children, the sick or the frail."

The New York law is the first of its kind in the country, and yesterday's ruling raises the question of whether other states will enact similar laws. In a statement, the Air Transport Association said that the court had misinterpreted the law and that it was considering an appeal.

No Noose Is Good Noose

In the wake of recent documented appearances of nooses in the State and around the United States, the Senate passed legislation on Monday (October 22) to make it a felony to etch, paint, draw or otherwise place or display a noose on public or private property. The legislation is sponsored by Senator Dean Skelos (R-Rockville Centre) who remarked,

This is a vile act that must be dealt with harshly. There is no place for racism and intimidation in America and this rash of incidents clearly demonstrates the need for tough new penalties.  The Senate passed a bill today to make displaying a noose a felony and I encourage the Assembly to reconvene and pass this legislation as soon as possible.

Recently a noose was discovered in the locker room at the Hempstead police station on Long Island and in the basement of the Hempstead town garage, while another was found on the door of a Columbia University Teachers College professor in Manhattan. The issue has also received national attention in the wake of the "Jena 6" case in Louisiana, in which a group of six black teenagers were charged with beating a white teenager at Jena High School in Jena, Louisiana.  The beating followed a number of racially-charged incidents in the town, including an incident in which three white students hung nooses from a tree at Jena High school.

The anti-noose legislation (S6499) would amend New York’s aggravated harassment statute (Penal Law Section 240.31) to make it a class E felony to etch, paint, draw, place or display a noose with intent to threaten, intimidate or harass. In 2006, in response to similar past incidents involving swastikas and burning crosses, the State Legislature supported and former Governor Pataki approved amending the State’s penal law to make the use of those symbols a crime. The bill was sent to the Assembly, where it is sponsored by Assemblyman Joe Lentol.

The full text of the Bill can be found by Clicking Here and searching on Bill No. S6499.

Senate Passes Bill To Prohibit Driver's Licenses For Illegal Aliens

The controversy surrounding Governor Spitzer's plan to give driver's licenses to illegal aliens continues to heat up. Yesterday, the State Senate passed legislation which seeks to stop the Governor's plan by requiring a social security number or proof of authorized presence in the United States to obtain a New York State driver's license or non-driver identification card. 

The legislation (S.6484) is sponsored by Senator Frank Padavan (Queens). It would require applicants for a driver's license or non-driver identification card to submit a social security number. When a social security number cannot be provided, the applicant must demonstrate they are ineligible to get a number and provide satisfactory proof that the applicant's presence in the United States is authorized under federal law.

Senator Padavan said, "My legislation ensures that the most important form of personal identification, the New York state drivers license, maintains its high standard of security and integrity. This comprehensive legislation reverses the Spitzer administration's dangerous policy that grants illegal aliens drivers licenses and enacts the necessary safeguards to help eliminate the fraudulent issuances of drivers licenses throughout the state while helping to protect the safety, security and well-being of all New Yorkers."

The Senate held a public hearing on the legislation last week.  Experts on national security, immigration, secure driver's licenses and ID cards, and representatives of the families of 9/11 victims spoke out against the Governor's plan, calling it a threat to security.

The Bill was passed on a 39 to 19 vote, and was sent to the Assembly. For additional comments on the Bill by Senators Click Here.

New Law Increases Fuel Pipeline Security

Back in June four terrorists hatched a plot to blow up Kennedy Airport and swaths of Queens by attacking fuel tanks and an underground pipeline. They were targeting a massive jet-fuel pipeline that runs from Linden, N.J., through Staten Island, Brooklyn, Queens and to the airport. They hoped an assault on the so-called Buckeye pipeline - which carries 8 million gallons of jet fuel and refined petroleum into the city every day - would kill thousands by causing explosions through residential sections of Queens.

Now the State has responded by passing new legislation that will enhance security procedures associated with pipelines and fueling networks. The legislation specifically addresses potential weaknesses in fueling networks servicing cities, airports, transmission systems and distribution points for petroleum, natural gas, and commercial aviation fuel. The bill complements earlier efforts by the State Office of Homeland Security (OHS) to review security at pipeline facilities. Under existing law, OHS has conducted site visits to natural gas and petroleum pipeline facilities throughout New York, and the petroleum industry has cooperated with OHS during such visits. The new bill will allow OHS to expand these efforts and provides for additional resources to broaden this critical mission.

Under the law, OHS will conduct physical inspections and evaluate security measures of the state’s essential transmission networks and submit a confidential preliminary report to the Governor, Legislature, the State Public Service Commission (PSC), regulators, and the facilities’ respective owners by April 30, 2008, and complete a full report by December 31, 2008. Subsequent reports will be submitted by December, 31, 2011, and repeated in five year intervals beginning in 2016. It also allows the PSC to implement the specific recommendations made by OHS.

The new legislation amends the Executive Law by adding a new section 715. The full text of this provision can be found by Clicking Here and searching on Bill No. S06167A.

Freedom To Report Terrorism Act Signed

One day before the sixth anniversary of the September 11th attacks, a new law went into effect in New York which makes reporting suspected terrorists attacks less risky. Yesterday Governor Spitzer signed the "Freedom to Report Terrorism Act." The new law will provide protections against litigation for individuals who report potential terrorist activities. The new law shields persons from civil and criminal liability in New York courts if they act in good faith and with the reasonable belief that an individual is acting in furtherance of a crime or an act of terrorism. Malicious reports of suspicious behavior to law enforcement will not be protected by this new law.

In his Press Release, the Governor stated:

The threat of a lawsuit can have a chilling effect on the willingness of the average person to report suspicious behavior. People acting in good faith to assist law enforcement officials in preventing terrorism should not have to worry about the threat of legal action. In the fight against terrorism, we need to encourage, not discourage, New Yorkers to do their part.

The Act amends the Penal Law by adding a new section 490.01, which provides as follows:

490.01 Liability Protection

1. Any person who makes a qualified disclosure of suspicious behavior shall be immune from civil and criminal liability for reporting such behavior.

2. For purposes of this article, "qualified disclosure of suspicious behavior" means any disclosure of allegedly suspicious behavior of another individual or individuals to any person that is made in good faith and with the reasonable belief that such suspicious behavior constitutes, is indicative of, or is in furtherance of a crime or an act of terrorism.

3. An action alleging that a statement or disclosure by a person of any suspicious transaction, activity or occurrence indicating that an individual may be engaging in or preparing to engage in suspicious behavior which constitutes, is indicative of, or is in furtherance of, a crime or an act of terrorism was not made in good faith and with the reasonable belief that such suspicious behavior constitutes, is indicative of, or is in furtherance of, a crime or an act of terrorism must be pled with particularity pursuant to subdivision (b) of rule three thousand sixteen of the civil practice law and rules.

(see Here, and search on Bill No. S04383C)

The new law takes effect immediately.

It is a fitting tribute to those lost on September 11th, that this new law goes into effect. We all need to be vigilant to the possibility of terrorist attacks, and we don't need to be worried about lawyers scrutinizing that vigilance.

Governor Signs Bill To Reduce School Bus Idling

On Friday (September 7th) the Governor signed legislation that will reduce air pollution from idling school buses. The bill requires the Commissioner of Education to issue regulations requiring certain school districts, particularly those with a significant number of children with asthma, to minimize the idling of school buses while parked on school grounds or in front of schools.

Emissions from diesel engines in trucks and buses contain pollutants such as nitrogen oxides and microscopic particles of soot that can become lodged deep in human lungs. These pollutants have been linked to cancer, respiratory diseases, such as asthma, and other serious health conditions.

In a Press Release Director of the Asthma Free School Zone, Rebecca Kalin, said:

Until the day when children can protect themselves from environmental hazards it is up to adults to do it for them. Because a school holds a concentration of children, protecting the school zone makes sense. The Asthma Free School Zone applauds the passage of the idle-free school zones act. We look forward to continuing progress in the reduction of tailpipe emissions in New York State.

State law already restricts bus and truck idling to no more than five consecutive minutes. This legislation authorizes the Commissioner of Education to require that school buses to be turned off while waiting for passengers to load or unload on school grounds or in front of schools, unless idling is necessary for heating, mechanical or emergency conditions. The Commissioner of Education must promulgate these regulations by July 1, 2008.

The law adds a new section 3627 to the Education Law, and the full text of this provision can be found by Clicking Here and searching on Bill No. S05973B.

New Law Expands Use OF Ignition Locks To Prevent Drunk Driving

On Friday (September 7th) Governor Spitzer signed new legislation designed to help prevent recurring acts of drunk driving. This new law, which was the result of a joint effort by the Department of Motor Vehicles (DMV) and the Division of Probation and Correctional Alternatives (DPCA), will increase the judicial use of ignition interlock devices, which prevent vehicles from being started when the driver's breath indicates alcohol consumption.

The law makes several changes to the current anti-drunk driving system by:

• Requiring ignition interlock devices to be used on any vehicle owned or operated by an offender;
• Closing a loophole which had allowed offenders to use business vehicles for personal use with the consent of their employers;
• Allowing judges throughout the state to restrict certain offenders from driving as a probation condition unless they have received a “post-revocation conditional license,” which allows driving under specified narrow purposes, like driving to work or to alcohol counseling;
• Expanding the classes of appropriate health professionals licensed by the State Education Department who may conduct screening and assessment evaluations for those charged with alcohol-related driving offenses; and,
• Requiring the Office of Alcoholism and Substance Abuse Services to provide the Chief Administrator of the Office of Court Administration and the DMV with an expanded list of names of alcohol and substance abuse professionals who provide assessment and treatment for alcohol and substance abuse and dependency.

Department of Motor vehicles Commissioner David J. Swarts said:

This new law is critical for giving judges throughout the state the option of ordering ignition interlock as a condition of probation when sentencing DWI offenders, with specific conditions attached to the use of the device and specific restrictions imposed upon those offenders. In addition, because all counties now will fall under a uniform interlock program, it will be far easier for the DMV to administer the program and will help in our efforts to reduce recidivist drunk driving across the state.

The law amends provisions of the Penal Law, Vehicle & Traffic Law, and the Mental Hygiene Law. The full text of the new changes can be found by Clicking Here and searching on Bill No. S05780A

New Legislation Increases Rights Of The Disabled

Last Friday (August 24th) the Governor signed new legislation which will make it easier for disabled New Yorkers to seek relief when public facilities fail to reasonably accommodate their disability.

Specifically, the new statute would make it a discriminatory practice under New York law for places of public accommodation to:

- Refuse to make reasonable modifications in policies, practices, or procedures necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless making such modifications would fundamentally alter the nature of the facilities, privileges, advantages or accommodations;

- Refuse to take steps necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless taking such steps would fundamentally alter the nature of the facility or would result in an undue burden; or

- Refuse to remove structural architectural or communication barriers in existing facilities, and transportation barriers in existing vehicles and rail passenger cars, where removal is readily achievable.

These principles bring New York State law in alignment with the federal Americans with Disabilities Act. It is thus thought that it will not present businesses or government agencies with a new or unfamiliar set of rules to follow.

The new law will allow persons with disabilities the ability to file certain complaints related to discriminatory practices through the State Division of Human Rights rather than pursuing costly litigation in federal court. Individuals can bring their complaints at one of the numerous DHR centers around the State. If the Division finds probable cause of a violation, a lawyer will present the complainant’s case. In addition, the Division itself can bring affirmative investigations and initiate complaints.

For comments on the new legislations see the Governor's Press Release. The legislation will go into effect on January 1, 2008.