S T A T E   O F   N E W   Y O R K
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                                  2037

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2009
                               ___________

Introduced  by  M. of A. BENJAMIN, ALFANO -- Multi-Sponsored by -- M. of
  A. BARRA, HOOPER, MILLER -- read once and referred to the Committee on
  Mental Health, Mental Retardation and Developmental Disabilities

AN ACT to amend the mental hygiene law, in relation to providing for the
  investigation of qualifications of persons employed in programs  oper-
  ated  or  certified  by  the  office of mental health or the office of
  mental retardation and developmental disabilities

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Subdivision (d) of section 7.19 of the mental hygiene law,
as added by chapter 978 of the laws of  1977,  is  amended  to  read  as
follows:
  (d) The commissioner shall establish regulations governing the person-
nel  administration  of  the  department and its facilities. THOSE REGU-
LATIONS SHALL INCLUDE, BUT NOT BE LIMITED TO, PROCEDURES FOR  THE  THOR-
OUGH  INVESTIGATION OF THE QUALIFICATIONS, BACKGROUND AND SUITABILITY OF
PROSPECTIVE EMPLOYEES OF PROGRAMS OPERATED OR CERTIFIED BY  THE  OFFICE.
THE INVESTIGATION OF PROSPECTIVE DIRECT CARE EMPLOYEES SHALL, SUBJECT TO
THE  RULES  AND REGULATIONS OF THE DIVISION OF CRIMINAL JUSTICE SERVICES
AND THE DEPARTMENT OF CIVIL SERVICE, INCLUDE ACCESS  TO  AND  REVIEW  OF
CONVICTION  RECORDS  MAINTAINED  BY  THE  DIVISION  OF  CRIMINAL JUSTICE
SERVICES  PURSUANT  TO  SUBDIVISION  SIX  OF   SECTION   EIGHT   HUNDRED
THIRTY-SEVEN OF THE EXECUTIVE LAW.
  S  2.  Subdivisions (d) and (e) of section 13.19 of the mental hygiene
law are relettered subdivisions (e) and (f) and a new subdivision (d) is
added to read as follows:
  (D) THE COMMISSIONER SHALL ESTABLISH REGULATIONS GOVERNING THE PERSON-
NEL ADMINISTRATION OF THE DEPARTMENT AND ITS FACILITIES.    THOSE  REGU-
LATIONS  SHALL  INCLUDE, BUT NOT BE LIMITED TO, PROCEDURES FOR THE THOR-
OUGH INVESTIGATION OF THE QUALIFICATIONS, BACKGROUND AND SUITABILITY  OF
PROSPECTIVE  EMPLOYEES  OF PROGRAMS OPERATED OR CERTIFIED BY THE OFFICE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05351-01-9
              

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THE INVESTIGATION OF PROSPECTIVE DIRECT CARE EMPLOYEES SHALL, SUBJECT TO
THE RULES AND REGULATIONS OF THE DIVISION OF CRIMINAL  JUSTICE  SERVICES
AND  THE  DEPARTMENT  OF  CIVIL SERVICE, INCLUDE ACCESS TO AND REVIEW OF
CONVICTION  RECORDS  MAINTAINED  BY  THE  DIVISION  OF  CRIMINAL JUSTICE
SERVICES  PURSUANT  TO  SUBDIVISION  SIX  OF   SECTION   EIGHT   HUNDRED
THIRTY-SEVEN OF THE EXECUTIVE LAW.
  S  3.  Paragraph  7  of subdivision (c) of section 16.05 of the mental
hygiene law, as renumbered by chapter 618 of the laws of 1990, is renum-
bered paragraph 8 and a new paragraph 7 is added to read as follows:
  (7) THE EXISTENCE OF PROCEDURES  FOR  THE  THOROUGH  INVESTIGATION  BY
CERTIFIED  AGENCIES OF THE QUALIFICATIONS, BACKGROUND AND SUITABILITY OF
PROSPECTIVE EMPLOYEES. THESE PROCEDURES SHALL INCLUDE BUT NOT BE LIMITED
TO THE SUBMISSION, SUBJECT TO THE RULES AND REGULATIONS OF THE  DIVISION
OF  CRIMINAL  JUSTICE  SERVICES, OF FINGERPRINT INFORMATION TO THE DIVI-
SION, FOR THE PURPOSE OF RECEIVING THE CONVICTION RECORDS MAINTAINED  BY
THE  DIVISION,  OF  PERSONS  WHO  HAVE  APPLIED FOR AND ARE UNDER ACTIVE
CONSIDERATION FOR EMPLOYMENT BY SUCH CERTIFIED AGENCIES.  A  PROSPECTIVE
EMPLOYEE  SHALL NOT AUTOMATICALLY BE DISQUALIFIED OR BARRED FROM EMPLOY-
MENT SOLELY ON THE BASIS OF A CRIMINAL CONVICTION.  THE  REVIEW  OF  THE
CONVICTION  RECORD  OF  A  PROSPECTIVE  EMPLOYEE  AND A DETERMINATION OF
FITNESS FOR EMPLOYMENT IN A   CERTIFIED PROGRAM  SHALL  TAKE  INTO  FULL
CONSIDERATION THE FOLLOWING:
  (I)  THE  SPECIFIC  DUTIES AND RESPONSIBILITIES NECESSARILY RELATED TO
THE EMPLOYMENT SOUGHT;
  (II) THE BEARING, IF ANY, THE CRIMINAL OFFENSE OR OFFENSES  FOR  WHICH
THE  PERSON WAS CONVICTED WILL HAVE ON HIS FITNESS OR ABILITY TO PERFORM
ONE OR MORE SUCH DUTIES AND RESPONSIBILITIES;
  (III) THE TIME WHICH HAS ELAPSED SINCE THE OCCURRENCE OF THE  CRIMINAL
OFFENSE OR OFFENSES;
  (IV)  THE  AGE OF THE PERSON AT THE TIME OF OCCURRENCE OF THE CRIMINAL
OFFENSE OR OFFENSES;
  (V) THE SERIOUSNESS OF THE CRIMINAL OFFENSE OR OFFENSES;
  (VI) ANY INFORMATION PRODUCED  BY  THE  PERSON,  OR  PRODUCED  ON  HIS
BEHALF, IN REGARD TO HIS REHABILITATION AND GOOD CONDUCT;
  (VII)  THE LEGITIMATE INTEREST OF THE PROSPECTIVE EMPLOYER IN PROTECT-
ING PROPERTY, AND THE SAFETY AND WELFARE OF CLIENTS BEING SERVED BY  THE
CERTIFIED PROGRAM;
  S  4.  Paragraphs 3, 4, 5, 6 and 7 of subdivision (a) of section 31.05
of the mental hygiene law are renumbered paragraphs 4, 5, 6, 7 and 8 and
a new paragraph 3 is added to read as follows:
  3. THERE EXISTS SATISFACTORY PROCEDURES FOR THE THOROUGH INVESTIGATION
BY CERTIFIED AGENCIES OF THE QUALIFICATIONS, BACKGROUND AND  SUITABILITY
OF  PROSPECTIVE  EMPLOYEES.  THESE  PROCEDURES  SHALL INCLUDE BUT NOT BE
LIMITED TO THE SUBMISSION, SUBJECT TO THE RULES AND REGULATIONS  OF  THE
DIVISION OF CRIMINAL JUSTICE SERVICES, OF FINGERPRINT INFORMATION TO THE
DIVISION, FOR THE PURPOSE OF RECEIVING THE CONVICTION RECORDS MAINTAINED
BY  THE  DIVISION,  OF PERSONS WHO HAVE APPLIED FOR AND ARE UNDER ACTIVE
CONSIDERATION FOR EMPLOYMENT BY SUCH CERTIFIED AGENCIES.  A  PROSPECTIVE
EMPLOYEE  SHALL NOT BE AUTOMATICALLY DISQUALIFIED OR BARRED FROM EMPLOY-
MENT SOLELY ON THE BASIS OF A CRIMINAL CONVICTION.  THE  REVIEW  OF  THE
CONVICTION  RECORD  OF  A  PROSPECTIVE  EMPLOYEE  AND A DETERMINATION OF
FITNESS FOR EMPLOYMENT IN A  CERTIFIED  PROGRAM  SHALL  TAKE  INTO  FULL
CONSIDERATION THE FOLLOWING:
  (I)  THE  SPECIFIC  DUTIES AND RESPONSIBILITIES NECESSARILY RELATED TO
THE EMPLOYMENT SOUGHT;

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  (II) THE BEARING, IF ANY, THE CRIMINAL OFFENSE OR OFFENSES  FOR  WHICH
THE  PERSON WAS CONVICTED WILL HAVE ON HIS FITNESS OR ABILITY TO PERFORM
ONE OR MORE OF SUCH DUTIES AND RESPONSIBILITIES;
  (III)  THE TIME WHICH HAS ELAPSED SINCE THE OCCURRENCE OF THE CRIMINAL
OFFENSE OR OFFENSES;
  (IV) THE AGE OF THE PERSON AT THE TIME OF OCCURRENCE OF  THE  CRIMINAL
OFFENSE OR OFFENSES;
  (V) THE SERIOUSNESS OF THE CRIMINAL OFFENSE OR OFFENSES;
  (VI)  ANY  INFORMATION  PRODUCED  BY  THE  PERSON,  OR PRODUCED ON HIS
BEHALF, IN REGARD TO HIS REHABILITATION AND GOOD CONDUCT;
  (VII) THE LEGITIMATE INTEREST OF THE PROSPECTIVE EMPLOYER IN  PROTECT-
ING  PROPERTY, AND THE SAFETY AND WELFARE OF THE CLIENTS BEING SERVED IN
THE CERTIFIED PROGRAM;
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided however, that effective  immediate-
ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
necessary for the implementation of the foregoing sections of  this  act
on  their  effective  date  are  authorized  and directed to be made and
completed on or before such effective date; provided, however, that  the
renumbering  of  paragraph  6 of subdivision (a) of section 31.05 of the
mental hygiene law made by section four of this act shall not affect the
repeal of such paragraph and shall be deemed repealed therewith.