S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    645
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 9, 2017
                                ___________
 
 Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
   tee on Codes
 
 AN ACT to amend the  penal  law,  in  relation  to  disqualification  of
   employment  for  certain  criminal  history information and deeming an
   individual with a developmental  disability  is  incapable  of  giving
   consent

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (i) of subdivision 3 of  section  130.05  of  the
 penal law, as added by section 2 of part G of chapter 501 of the laws of
 2012, is amended and a new paragraph (j) is added to read as follows:
   (i)  a  resident  or  inpatient  of  a  residential facility operated,
 licensed or certified by (i) the  office  of  mental  health;  (ii)  the
 office  for  people with developmental disabilities; or (iii) the office
 of alcoholism and substance abuse services, and the actor is an employee
 of the facility not married to such resident or inpatient. For  purposes
 of  this  paragraph,  "employee" means either: an employee of the agency
 operating the residential facility, who knows or reasonably should  know
 that  such  person  is  a resident or inpatient of such facility and who
 provides direct care services,  case  management  services,  medical  or
 other  clinical services, habilitative services or direct supervision of
 the residents in the facility in which the resident resides; or an offi-
 cer or other employee, consultant, contractor or volunteer of the  resi-
 dential facility, who knows or reasonably should know that the person is
 a  resident of such facility and who is in direct contact with residents
 or inpatients; provided, however, that the provisions of this  paragraph
 shall  only  apply  to  a  consultant, contractor or volunteer providing
 services pursuant to a contractual arrangement with the agency operating
 the residential facility or, in the  case  of  a  volunteer,  a  written
 agreement  with such facility, provided that the person received written
 notice concerning the provisions of this  paragraph;  provided  further,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01811-01-7

 A. 645                              2
 
 however,  "employee"  shall  not  include  a person with a developmental
 disability who is or was receiving services and is also an employee of a
 service provider and who has sexual contact with another service recipi-
 ent who is a consenting adult who has consented to such contact[.]; OR
   (J)  AN  INDIVIDUAL WITH A DEVELOPMENTAL DISABILITY RECEIVING SERVICES
 FROM A PROGRAM OR FACILITY OPERATED,  CERTIFIED  OR  AUTHORIZED  BY,  OR
 FUNDED  THROUGH,  CONTRACT  BY  THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
 DISABILITIES WHERE THE ACTOR IS NOT MARRIED TO SUCH INDIVIDUAL AND IS AN
 EMPLOYEE, INTERN, CONSULTANT, CONTRACTOR OR VOLUNTEER OF SUCH PROGRAM OR
 FACILITY WHERE THE INDIVIDUAL RECEIVES SERVICES.
   § 2. This act shall take effect immediately.