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

                                  2759

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 17, 2013
                               ___________

Introduced  by M. of A. REILICH -- read once and referred to the Commit-
  tee on Health

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-t to read as follows:
  S  461-T.  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
HEALTH IN WRITING OF SUCH CONVICTION. THE DEPARTMENT  OF  HEALTH,  AFTER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01208-01-3
              

A. 2759                             2

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-T 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.