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

                                   204

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen. MAZIARZ -- read twice and ordered printed, and when
  printed to be committed to the Committee on Social Services

AN ACT to amend the social services law and the public  health  law,  in
  relation to criminal history records of maintenance employees in adult
  residential health and assisted living facilities

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

  Section 1. The social services law is amended by adding a new  section
461-s to read as follows:
  S  461-S.  ACCESS  TO CRIMINAL HISTORY RECORDS. 1. FOR THE PURPOSES OF
THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "MAINTENANCE EMPLOYEE" SHALL MEAN ANY INDIVIDUAL TO BE EMPLOYED OR
USED BY A PROVIDER, INCLUDING THOSE PERSONS EMPLOYED THROUGH A TEMPORARY
EMPLOYMENT OR STAFFING AGENCY, AND WHO  PROVIDE  SUPPORTIVE  MAINTENANCE
SERVICES  TO  SUCH  FACILITY,  INCLUDED,  BUT NOT LIMITED TO BEAUTICIAN,
SECURITY, JANITORIAL, LAUNDRY, RECREATIONAL AND GROUNDSKEEPING SERVICES.
SUCH TERM SHALL NOT INCLUDE VOLUNTEERS.
  (B) "PROVIDER" SHALL MEAN AN  ASSISTED  LIVING  FACILITY,  RESIDENTIAL
HEALTH  CARE  FACILITY,  SKILLED  NURSING  FACILITY OR ANY OTHER TYPE OF
FACILITY THAT PROVIDES RESIDENTIAL OR INSTITUTIONAL CARE TO THE  ELDERLY
OR DISABLED.
  2.  SUBJECT  TO  THE RULES AND REGULATIONS OF THE DIVISION OF CRIMINAL
JUSTICE SERVICES, THE DEPARTMENT OF HEALTH SHALL HAVE ACCESS TO CRIMINAL
HISTORY RECORDS MAINTAINED BY SUCH DIVISION PERTAINING  TO  ANY  MAINTE-
NANCE  EMPLOYEE  OR SUCH PERSONS AS THE DEPARTMENT OF HEALTH AT ANY TIME
DEEMS NECESSARY TO DETERMINE THEIR CRIMINAL HISTORIES.
  3. EVERY COURT IN WHICH  A  MAINTENANCE  EMPLOYEE  OF  A  PROVIDER  IS
CONVICTED  OF  A  CRIME  WHILE  PERFORMING THEIR INTENDED DUTIES AT SUCH
FACILITY SHALL, WITHIN SEVEN DAYS AFTER EITHER THE ENTRY OF  A  PLEA  OF
GUILTY,  OR THE VERDICT OF THE COURT OR A JURY, NOTIFY THE DEPARTMENT OF

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

                                                           LBD01649-01-1

S. 204                              2

HEALTH IN WRITING OF SUCH CONVICTION. THE DEPARTMENT  OF  HEALTH,  AFTER
RECEIPT  OF  SUCH  NOTIFICATION  OR AT ANY TIME THE DEPARTMENT OF HEALTH
BECOMES AWARE OF THE CONVICTION OF SUCH MAINTENANCE WORKER,  SHALL  HAVE
THE  AUTHORITY,  GRANTED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, TO
HAVE ACCESS TO THE CRIMINAL HISTORY RECORDS OF SUCH INDIVIDUAL.
  4. ANY REQUEST FOR CRIMINAL  HISTORY  RECORDS  MADE  PURSUANT  TO  THE
PROVISIONS  OF  THIS SECTION SHALL BE ACCOMPANIED BY THE FINGERPRINTS OF
THE PERSON WHO IS THE SUBJECT OF SUCH REQUEST.
  S 2. Subdivisions 3 and 5 of section 2899 of the public health law, as
amended by chapter 331 of the laws of  2006,  are  amended  to  read  as
follows:
  3.  "Employee"  shall  mean  any  person  to  be employed or used by a
provider, including those persons employed  by  a  temporary  employment
agency,  to  provide direct care or supervision to patients or residents
OR AN INDIVIDUAL WHO SERVES AS A  MAINTENANCE  EMPLOYEE  AS  DEFINED  IN
SECTION  FOUR  HUNDRED  SIXTY-ONE-S  OF THE SOCIAL SERVICES LAW. Persons
licensed pursuant to title eight of the education law or  article  twen-
ty-eight-D  of  this  chapter  are excluded from the meaning of employee
under this article. Such term shall not include volunteers.
  5. "Prospective employee"  shall  mean  any  individual,  INCLUDING  A
POTENTIAL  MAINTENANCE EMPLOYEE, not currently an employee, who files an
application for employment as  an  employee  with  a  provider  and  the
provider  has  a  reasonable  expectation  to hire such individual as an
employee.
  S 3. Subdivision 10 of section 2899-a of the  public  health  law,  as
amended  by  chapter  331  of  the  laws  of 2006, is amended to read as
follows:
  10.  Notwithstanding  subdivision  eleven  of  section  eight  hundred
forty-five-b  of  the  executive  law,  a  certified home health agency,
licensed home care services agency or long term home health care program
certified, licensed or approved under article thirty-six of this chapter
or a home care services agency exempt from  certification  or  licensure
under article thirty-six of this chapter, OR AN ASSISTED LIVING FACILITY
LICENSED  UNDER  ARTICLE  FORTY-SIX-B  OF  THIS  CHAPTER may temporarily
approve a prospective employee while the results of the criminal history
information check and the determination are pending, upon the  condition
that the provider conducts appropriate direct observation and evaluation
of  the temporary employee, while he or she is temporarily employed, and
the care recipient. The results of such observations shall be documented
in the temporary employee's personnel file and shall be maintained.  For
purposes  of  providing  such  appropriate direct observation and evalu-
ation, the provider shall utilize an individual employed by such provid-
er with a minimum of one year's experience working in an  agency  certi-
fied,  licensed or approved under article thirty-six of this chapter. If
the temporary employee is working under contract with  another  provider
certified, licensed or approved under article thirty-six of this chapter
OR  ARTICLE FORTY-SIX-B OF THIS CHAPTER, such contract provider's appro-
priate direct observation and  evaluation  of  the  temporary  employee,
shall  be  considered sufficient for the purposes of complying with this
subdivision.
  S 4. This act shall take effect immediately.