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

                                  5211

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 11, 2009
                               ___________

Introduced  by  M.  of  A.  LENTOL,  MORELLE, BRODSKY, WEISENBERG, JOHN,
  DESTITO -- Multi-Sponsored by -- M.  of  A.  MAGEE,  MARKEY,  McENENY,
  SWEENEY -- read once and referred to the Committee on Codes

AN  ACT  to  amend the general business law, the mental hygiene law, the
  public health law, the social services law and the executive  law,  in
  relation  to  the review of criminal history information by authorized
  employers; and creates the commission on criminal history information

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

  Section  1.    Section  171  of the general business law is amended by
adding two new subdivisions 12 and 13 to read as follows:
  12. "IN-HOME CHILD CARE PROVIDER" SHALL MEAN ANY PERSON WHO CARES  FOR
ONE  OR  MORE CHILDREN IN THE HOME OF ONE OF SUCH CHILDREN REGARDLESS OF
THE NUMBER OF HOURS PER WEEK THAT SUCH CHILD CARE IS PROVIDED. A  PERSON
SHALL BE CONSIDERED AN "IN-HOME CHILD CARE PROVIDER" WHETHER OR NOT SUCH
PERSON  LIVES  IN  OR  OUTSIDE  THE  HOME OF THE CHILD/CHILDREN FOR WHOM
HE/SHE IS PROVIDING CARE.
  13. "IN-HOME CHILD CARE PLACEMENT AGENCY" SHALL  MEAN  ANY  EMPLOYMENT
AGENCY  WHICH, FOR A FEE, PROCURES OR ATTEMPTS TO PROCURE EMPLOYMENT FOR
IN-HOME CHILD CARE PROVIDERS WHETHER  OR  NOT  THE  AGENCY  PROCURES  OR
ATTEMPTS TO PROCURE OTHER TYPES OF EMPLOYMENT OR ENGAGEMENTS.
  S 2. The general business law is amended by adding a new section 184-b
to read as follows:
  S  184-B.  REVIEW  OF  CRIMINAL HISTORY INFORMATION CONCERNING CERTAIN
PERSONS AVAILABLE FOR PLACEMENT AS IN-HOME CHILD CARE PROVIDERS.  1.  AN
IN-HOME CHILD PLACEMENT AGENCY MAY REQUEST AND IS AUTHORIZED TO  RECEIVE
FROM THE DIVISION OF CRIMINAL JUSTICE SERVICES CRIMINAL HISTORY INFORMA-
TION,  AS  SUCH  PHRASE  IS DEFINED IN PARAGRAPH A OF SUBDIVISION ONE OF
SECTION EIGHT HUNDRED FORTY-FIVE-C  OF  THE  EXECUTIVE  LAW,  CONCERNING
PERSONS SEEKING EMPLOYMENT AS AN IN-HOME CHILD CARE PROVIDER PURSUANT TO
SUCH AGENCY.
  2.  ACCESS  TO  AND  THE  USE OF SUCH INFORMATION SHALL BE GOVERNED BY
SECTION EIGHT HUNDRED FORTY-FIVE-C OF THE EXECUTIVE LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD07476-01-9

A. 5211                             2

  S 3. The mental hygiene law is amended by adding a new  section  16.39
to read as follows:
S  16.39 REVIEW  OF  CRIMINAL HISTORY INFORMATION CONCERNING PROSPECTIVE
            EMPLOYEES.
  (A) EVERY PROVIDER OF SERVICES ISSUED AN OPERATING CERTIFICATE  PURSU-
ANT  TO  THIS  ARTICLE,  EXCEPT  A "DEPARTMENT FACILITY" AS THAT TERM IS
DEFINED IN SUBDIVISION SEVEN OF SECTION  1.03  OF  THIS  CHAPTER,  SHALL
REQUEST  AND  IS  AUTHORIZED  TO  RECEIVE  FROM THE DIVISION OF CRIMINAL
JUSTICE SERVICES CRIMINAL HISTORY INFORMATION, AS SUCH PHRASE IS DEFINED
IN PARAGRAPH A OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED  FORTY-FIVE-C
OF THE EXECUTIVE LAW, CONCERNING EACH PROSPECTIVE EMPLOYEE OF SUCH ENTI-
TY  WHO  HAS  OR  WILL  HAVE  DIRECT CONTACT OR THE POTENTIAL FOR DIRECT
CONTACT WITH ANY PATIENT OR CLIENT OF SUCH ENTITY.
  (B) ACCESS TO AND THE USE OF SUCH INFORMATION  SHALL  BE  GOVERNED  BY
SECTION EIGHT HUNDRED FORTY-FIVE-C OF THE EXECUTIVE LAW.
  S  4.  The mental hygiene law is amended by adding a new section 31.37
to read as follows:
S 31.37 REVIEW OF CRIMINAL HISTORY  INFORMATION  CONCERNING  PROSPECTIVE
          EMPLOYEES.
  (A)  EVERY PROVIDER OF SERVICES ISSUED AN OPERATING CERTIFICATE PURSU-
ANT TO THIS ARTICLE, EXCEPT A "DEPARTMENT  FACILITY"  AS  THAT  TERM  IS
DEFINED  IN  SUBDIVISION  SEVEN  OF  SECTION 1.03 OF THIS CHAPTER, SHALL
REQUEST AND IS AUTHORIZED TO  RECEIVE  FROM  THE  DIVISION  OF  CRIMINAL
JUSTICE SERVICES CRIMINAL HISTORY INFORMATION, AS SUCH PHRASE IS DEFINED
IN  PARAGRAPH A OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED FORTY-FIVE-C
OF THE EXECUTIVE LAW, CONCERNING EACH PROSPECTIVE EMPLOYEE OF SUCH ENTI-
TY WHO HAS OR WILL HAVE DIRECT  CONTACT  OR  THE  POTENTIAL  FOR  DIRECT
CONTACT WITH ANY PATIENT OR CLIENT OF SUCH ENTITY.
  (B)  ACCESS  TO  AND  THE USE OF SUCH INFORMATION SHALL BE GOVERNED BY
SECTION EIGHT HUNDRED FORTY-FIVE-C OF THE EXECUTIVE LAW.
  S 5. Article 28-D of the public health law is amended by adding a  new
title 2-A to read as follows:
                                TITLE II-A
                 REVIEW OF CRIMINAL HISTORY INFORMATION
                           CONCERNING CERTAIN
                        PROSPECTIVE EMPLOYEES OF
                         NURSING HOMES AND HOME
                         CARE SERVICES AGENCIES
SECTION 2896-P. REVIEW   OF   CRIMINAL  HISTORY  INFORMATION  CONCERNING
                CERTAIN PROSPECTIVE EMPLOYEES OF NURSING HOMES AND  HOME
                CARE SERVICES AGENCIES.
  S  2896-P.  REVIEW  OF CRIMINAL HISTORY INFORMATION CONCERNING CERTAIN
PROSPECTIVE EMPLOYEES OF NURSING HOMES AND HOME CARE SERVICES  AGENCIES.
1. EVERY CERTIFIED HOME HEALTH AGENCY, LICENSED HOME CARE SERVICES AGEN-
CY  OR  LONG TERM HOME HEALTH CARE PROGRAM CERTIFIED UNDER ARTICLE THIR-
TY-SIX OF THIS CHAPTER, RESIDENTIAL HEALTH CARE FACILITY LICENSED  UNDER
THIS  ARTICLE,  HOME  CARE  SERVICES AGENCY EXEMPT FROM CERTIFICATION OR
LICENSURE UNDER ARTICLE THIRTY-SIX  OF  THIS  CHAPTER,  AND  HOSPICE  AS
DEFINED  IN  SECTION FOUR THOUSAND TWO OF THIS CHAPTER SHALL REQUEST AND
IS AUTHORIZED TO RECEIVE FROM THE DIVISION OF CRIMINAL JUSTICE  SERVICES
CRIMINAL  HISTORY  INFORMATION, AS SUCH PHRASE IS DEFINED IN PARAGRAPH A
OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED FORTY-FIVE-C OF  THE  EXECU-
TIVE LAW, CONCERNING EACH PROSPECTIVE EMPLOYEE OF SUCH ENTITY WHO HAS OR
WILL  HAVE  DIRECT  CONTACT OR THE POTENTIAL FOR DIRECT CONTACT WITH ANY
PATIENT OR CLIENT OF SUCH ENTITY.

A. 5211                             3

  2. ACCESS TO AND THE USE OF SUCH  INFORMATION  SHALL  BE  GOVERNED  BY
SECTION EIGHT HUNDRED FORTY-FIVE-C OF THE EXECUTIVE LAW.
  S  6. The social services law is amended by adding a new section 390-g
to read as follows:
  S 390-G.  REVIEW OF CRIMINAL HISTORY INFORMATION REGARDING CHILD  CARE
PROVIDERS.   1. EVERY CHILD DAY CARE PROVIDER REQUIRED TO BE LICENSED OR
REGISTERED WITH THE DEPARTMENT PURSUANT TO SECTION THREE HUNDRED  NINETY
OF  THIS TITLE SHALL REQUEST AND IS AUTHORIZED TO RECEIVE FROM THE DIVI-
SION OF CRIMINAL JUSTICE SERVICES CRIMINAL HISTORY INFORMATION, AS  SUCH
PHRASE  IS  DEFINED  IN  PARAGRAPH A OF SUBDIVISION ONE OF SECTION EIGHT
HUNDRED FORTY-FIVE-C OF THE EXECUTIVE LAW, CONCERNING  EACH  PROSPECTIVE
EMPLOYEE  OF  SUCH  ENTITY  WHO  HAS  OR WILL HAVE DIRECT CONTACT OR THE
POTENTIAL FOR DIRECT CONTACT WITH ANY  CHILD  UNDER  THE  CARE  OF  SUCH
PROVIDER.
  2.  A  PROGRAM,  SCHOOL  OR FACILITY DESCRIBED IN SUBPARAGRAPH (II) OF
PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION THREE HUNDRED NINETY OF THIS
TITLE MAY REQUEST AND IS AUTHORIZED TO  RECEIVE  FROM  THE  DIVISION  OF
CRIMINAL  JUSTICE  SERVICES CRIMINAL HISTORY INFORMATION, AS SUCH PHRASE
IS DEFINED IN PARAGRAPH A OF SUBDIVISION ONE OF  SECTION  EIGHT  HUNDRED
FORTY-FIVE-C  OF THE EXECUTIVE LAW, CONCERNING EACH PROSPECTIVE EMPLOYEE
OF SUCH ENTITY WHO HAS OR WILL HAVE DIRECT CONTACT OR THE POTENTIAL  FOR
DIRECT CONTACT WITH ANY CHILD UNDER THE CARE OF SUCH PROVIDER.
  3.  ACCESS  TO AND THE USE OF CRIMINAL HISTORY INFORMATION PURSUANT TO
SUBDIVISIONS ONE AND TWO OF THIS SECTION SHALL BE  GOVERNED  BY  SECTION
EIGHT HUNDRED FORTY-FIVE-C OF THE EXECUTIVE LAW.
  S  7. Subdivision 9 of section 835 of the executive law, as amended by
chapter 602 of the laws of 2008, is amended to read as follows:
  9. "Qualified agencies" means courts in the unified court system,  the
administrative  board of the judicial conference, probation departments,
sheriffs' offices, district attorneys' offices, the state department  of
correctional  services,  the state division of probation, the department
of correction of any municipality, the insurance frauds  bureau  of  the
state  department  of  insurance,  the  office  of  professional medical
conduct of the state department of health for the  purposes  of  section
two  hundred  thirty  of  the  public  health  law, the child protective
services unit of a local social services  district  when  conducting  an
investigation  pursuant to subdivision six of section four hundred twen-
ty-four of the social services law, the  office  of  Medicaid  inspector
general, the temporary state commission of investigation, THE COMMISSION
ON  CRIMINAL  HISTORY INFORMATION, the criminal investigations bureau of
the banking department, police forces and departments  having  responsi-
bility for enforcement of the general criminal laws of the state and the
Onondaga  County  Center  for  Forensic  Sciences Laboratory when acting
within the scope of its law enforcement duties.
  S 8. The executive law is amended by adding three new sections  845-c,
845-d and 845-e to read as follows:
  S  845-C.  REQUESTS  FOR  CRIMINAL  HISTORY  INFORMATION BY AUTHORIZED
EMPLOYERS.  1. AS USED IN THIS SECTION:
  A.   "CRIMINAL HISTORY INFORMATION" SHALL MEAN  A  RECORD  OF  PENDING
CRIMINAL   CHARGES,  CRIMINAL  CONVICTIONS  WHICH  ARE  NOT  VACATED  OR
REVERSED, AND CERTIFICATES FILED PURSUANT TO SUBDIVISION TWO OF  SECTION
SEVEN  HUNDRED  FIVE  OF  THE  CORRECTION LAW, AND WHICH THE DIVISION OF
CRIMINAL JUSTICE SERVICES IS AUTHORIZED TO MAINTAIN PURSUANT TO SUBDIVI-
SION SIX OF SECTION EIGHT HUNDRED THIRTY-SEVEN OF THIS ARTICLE.

A. 5211                             4

  B. "EMPLOYER" SHALL MEAN A PERSON  OR  ENTITY  AUTHORIZED  TO  REQUEST
CRIMINAL  HISTORY  INFORMATION  PURSUANT  TO  SUBDIVISION  TWO  OF  THIS
SECTION.
  C. "PROSPECTIVE EMPLOYEE" SHALL MEAN A PERSON WHO FILES AN APPLICATION
FOR  EMPLOYMENT  AND  THE  EMPLOYER HAS A REASONABLE EXPECTATION TO HIRE
SUCH PERSON, AND FOR WHOM THE EMPLOYER IS AUTHORIZED TO REQUEST CRIMINAL
HISTORY INFORMATION PURSUANT TO SUBDIVISION TWO OF THIS SECTION.
  D. "AUTHORIZED PERSON" SHALL MEAN  ONE  INDIVIDUAL  DESIGNATED  BY  AN
EMPLOYER  WHO  IS  AUTHORIZED  TO  REQUEST,  RECEIVE AND REVIEW CRIMINAL
HISTORY INFORMATION PURSUANT TO THIS  SECTION,  EXCEPT  THAT  WHERE  THE
NUMBER  OF  APPLICATIONS  RECEIVED  BY  AN EMPLOYER IS SO GREAT THAT ONE
PERSON CANNOT REASONABLY PERFORM THE FUNCTIONS OF THE AUTHORIZED PERSON,
AN EMPLOYER MAY DESIGNATE ONE OR MORE ADDITIONAL PERSONS TO SERVE AS  AN
AUTHORIZED PERSON PURSUANT TO THIS SECTION.
  2.  WHERE  AN EMPLOYER IS AUTHORIZED OR REQUIRED TO REQUEST AND REVIEW
CRIMINAL  HISTORY  INFORMATION   PURSUANT   TO   SECTION   ONE   HUNDRED
EIGHTY-FOUR-B OF THE GENERAL BUSINESS LAW, SECTION 16.39 OR 31.37 OF THE
MENTAL  HYGIENE  LAW,  SECTION  TWENTY-EIGHT HUNDRED NINETY-SIX-P OF THE
PUBLIC HEALTH LAW OR  SECTION  THREE  HUNDRED  NINETY-G  OF  THE  SOCIAL
SERVICES  LAW, SUCH EMPLOYER SHALL PROCEED PURSUANT TO THE PROVISIONS OF
THIS SECTION AND IN A MANNER CONSISTENT WITH THE PROVISIONS  OF  ARTICLE
TWENTY-THREE-A  OF  THE CORRECTION LAW, SUBDIVISIONS FIFTEEN AND SIXTEEN
OF SECTION TWO HUNDRED NINETY-SIX OF THIS CHAPTER AND ALL OTHER APPLICA-
BLE LAWS.
  3. A. AN EMPLOYER AUTHORIZED TO REQUEST AND RECEIVE  CRIMINAL  HISTORY
INFORMATION  PURSUANT TO SUBDIVISION TWO OF THIS SECTION SHALL DESIGNATE
ONE AUTHORIZED PERSON WHO SHALL REQUEST,  RECEIVE  AND  REVIEW  CRIMINAL
HISTORY INFORMATION ON BEHALF OF SUCH EMPLOYER PURSUANT TO THIS SECTION.
ONLY  SUCH  AUTHORIZED  PERSON AND THE PROSPECTIVE EMPLOYEE TO WHOM SUCH
CRIMINAL HISTORY INFORMATION RELATES SHALL HAVE ACCESS TO SUCH  INFORMA-
TION;  PROVIDED,  HOWEVER, THAT CRIMINAL HISTORY INFORMATION RECEIVED BY
AN EMPLOYER MAY BE DISCLOSED TO OTHER PERSONS WHO ARE  DIRECTLY  PARTIC-
IPATING IN THE DECISION TO EMPLOY SUCH PROSPECTIVE EMPLOYEE AND PROVIDED
FURTHER  THAT  SUCH OTHER PERSONS SHALL ALSO BE SUBJECT TO THE CONFIDEN-
TIALITY REQUIREMENTS AND ALL OTHER PROVISIONS OF  THIS  SECTION.    EACH
EMPLOYER  SHALL  SPECIFICALLY  IDENTIFY  TO THE DIVISION, IN WRITING, IN
ADVANCE OF DISCLOSURE, THE AUTHORIZED PERSON AND EACH OTHER  SUCH  AGENT
OR  EMPLOYEE OF THE EMPLOYER WHO IS PERMITTED TO HAVE ACCESS TO CRIMINAL
HISTORY INFORMATION PURSUANT TO THIS SECTION.
  B. AN EMPLOYER REQUESTING CRIMINAL  HISTORY  INFORMATION  PURSUANT  TO
THIS SECTION SHALL DO SO BY COMPLETING A FORM DEVELOPED FOR SUCH PURPOSE
BY  THE  DIVISION.    SUCH  FORM  SHALL INCLUDE A SWORN STATEMENT OF THE
AUTHORIZED PERSON CERTIFYING THAT: (I) THE PERSON WHOSE CRIMINAL HISTORY
INFORMATION IS REQUESTED HAS APPLIED TO BE AN EMPLOYEE FOR WHOM CRIMINAL
HISTORY INFORMATION IS AVAILABLE BY  LAW;  (II)  THE  SPECIFIC  TYPE  OF
PROSPECTIVE  EMPLOYMENT  AND,  WHERE  APPLICABLE, PROSPECTIVE EMPLOYMENT
DUTIES WHICH QUALIFY THE EMPLOYER TO REVIEW  CRIMINAL  HISTORY  INFORMA-
TION;  (III)  SUCH  CRIMINAL  HISTORY  INFORMATION  WILL  BE USED BY THE
EMPLOYER SOLELY FOR PURPOSES AUTHORIZED BY LAW; AND  (IV)  THE  EMPLOYER
AND  ITS  AGENTS AND EMPLOYEES ARE AWARE OF AND WILL ABIDE BY THE CONFI-
DENTIALITY REQUIREMENTS AND ALL OTHER PROVISIONS OF THIS ARTICLE.
  C.  AN EMPLOYER AUTHORIZED TO  REQUEST  CRIMINAL  HISTORY  INFORMATION
PURSUANT  TO THIS SECTION MAY INQUIRE OF THE PROSPECTIVE EMPLOYEE IN THE
MANNER AUTHORIZED BY SUBDIVISION SIXTEEN OF SECTION TWO HUNDRED  NINETY-
SIX  OF THIS CHAPTER.  PRIOR TO REQUESTING SUCH INFORMATION, AN EMPLOYER
SHALL:

A. 5211                             5

  (I) INFORM THE PROSPECTIVE EMPLOYEE IN WRITING THAT  THE  EMPLOYER  IS
AUTHORIZED OR, WHERE APPLICABLE, REQUIRED TO REQUEST HIS OR HER CRIMINAL
HISTORY INFORMATION FROM THE DIVISION AND REVIEW SUCH INFORMATION PURSU-
ANT TO THIS SECTION;
  (II)  INFORM  THE PROSPECTIVE EMPLOYEE THAT HE OR SHE HAS THE RIGHT TO
OBTAIN, REVIEW AND SEEK CORRECTION OF HIS OR HER CRIMINAL HISTORY INFOR-
MATION PURSUANT TO REGULATIONS AND PROCEDURES ESTABLISHED BY  THE  DIVI-
SION;
  (III)  OBTAIN THE SIGNED, INFORMED CONSENT OF THE PROSPECTIVE EMPLOYEE
ON A FORM SUPPLIED BY THE DIVISION OF WHICH INDICATES THAT  SUCH  PERSON
HAS:
  (A)  BEEN  INFORMED  OF  THE RIGHT AND PROCEDURES NECESSARY TO OBTAIN,
REVIEW AND SEEK CORRECTION OF HIS OR HER CRIMINAL HISTORY INFORMATION;
  (B) BEEN INFORMED OF THE REASON FOR THE REQUEST FOR HIS OR HER  CRIMI-
NAL HISTORY INFORMATION;
  (C) CONSENTED TO SUCH REQUEST FOR A REPORT; AND
  (D)  SUPPLIED  ON  THE  FORM A CURRENT MAILING OR HOME ADDRESS FOR THE
PROSPECTIVE EMPLOYEE.
UPON RECEIVING SUCH WRITTEN  CONSENT,  THE  EMPLOYER  SHALL  RECEIVE  OR
OBTAIN  THE  FINGERPRINTS OF SUCH PROSPECTIVE EMPLOYEE PURSUANT TO REGU-
LATIONS ESTABLISHED BY THE DIVISION.
  D. A PROSPECTIVE EMPLOYEE MAY WITHDRAW  HIS  OR  HER  APPLICATION  FOR
EMPLOYMENT  PURSUANT  TO  THIS  SECTION,  WITHOUT PREJUDICE, AT ANY TIME
BEFORE EMPLOYMENT IS OFFERED OR  DECLINED,  REGARDLESS  OF  WHETHER  THE
PROSPECTIVE  EMPLOYEE  OR EMPLOYER HAS REVIEWED SUCH PROSPECTIVE EMPLOY-
EE'S CRIMINAL HISTORY INFORMATION.
  E. THE DIVISION SHALL PROVIDE REQUESTED CRIMINAL  HISTORY  INFORMATION
WITHIN  FIFTEEN BUSINESS DAYS AFTER THE RECEIPT OF A REQUEST PURSUANT TO
THIS SECTION IF SUCH REQUEST IS:
  (I) MADE BY AN AUTHORIZED PERSON ON BEHALF OF AN  EMPLOYER  AUTHORIZED
TO  RECEIVE  CRIMINAL HISTORY INFORMATION PURSUANT TO SUBDIVISION TWO OF
THIS SECTION;
  (II) ACCOMPANIED BY THE COMPLETED FORMS DESCRIBED IN THIS SUBDIVISION;
  (III)    ACCOMPANIED  BY  FINGERPRINTS  OF  THE  PROSPECTIVE  EMPLOYEE
OBTAINED PURSUANT TO THIS SUBDIVISION.
  F.  CRIMINAL  HISTORY INFORMATION PROVIDED BY THE DIVISION PURSUANT TO
THIS SECTION SHALL BE FURNISHED ONLY BY MAIL OR OTHER METHOD  OF  SECURE
AND  CONFIDENTIAL  DELIVERY,  ADDRESSED  TO THE AUTHORIZED PERSON.  SUCH
INFORMATION AND THE ENVELOPE IN WHICH IT IS ENCLOSED SHALL BE PROMINENT-
LY MARKED "CONFIDENTIAL", AND SHALL AT ALL TIMES BE  MAINTAINED  BY  THE
EMPLOYER IN A SECURE PLACE.
  G.   ANY NEGLIGENT DISCLOSURE OF A CONFIDENTIAL REPORT, RECEIVED BY AN
EMPLOYER PURSUANT TO THIS SECTION, TO A PERSON NOT AUTHORIZED TO  REVIEW
IT  SHALL ENTITLE THE SUBJECT OF SUCH REPORT TO AN AWARD OF COMPENSATORY
DAMAGES FROM THE EMPLOYER, TOGETHER WITH THE COSTS OF  THE  ACTION.  ANY
RECKLESS  DISCLOSURE  OF  A CONFIDENTIAL REPORT, RECEIVED BY AN EMPLOYER
PURSUANT TO THIS SECTION, TO A PERSON NOT AUTHORIZED TO REVIEW IT  SHALL
ENTITLE THE SUBJECT OF SUCH REPORT TO THREE TIMES THE AWARD OF COMPENSA-
TORY  DAMAGES  FROM THE EMPLOYER, TOGETHER WITH THE COSTS OF THE ACTION.
ANY INTENTIONAL DISCLOSURE OF A  CONFIDENTIAL  REPORT,  RECEIVED  BY  AN
EMPLOYER  PURSUANT TO THIS SECTION, TO A PERSON NOT AUTHORIZED TO REVIEW
IT SHALL ENTITLE THE SUBJECT OF SUCH REPORT TO THREE TIMES THE AWARD  OF
COMPENSATORY  DAMAGES  FROM THE EMPLOYER, TOGETHER WITH THE COSTS OF THE
ACTION, AND SUCH PLAINTIFF MAY RECOVER PUNITIVE DAMAGES AS WELL.
  H. FINGERPRINTS RECEIVED BY THE  DIVISION  PURSUANT  TO  THIS  SECTION
SHALL  BE USED ONLY TO ASSIST THE DIVISION IN PROVIDING CRIMINAL HISTORY

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INFORMATION TO AUTHORIZED EMPLOYERS PURSUANT  TO  THIS  SECTION.    SUCH
FINGERPRINTS  SHALL BE RETURNED TO THE PERSON WHO IS THE SUBJECT OF SUCH
FINGERPRINTS  WITHIN  NINETY  DAYS  AFTER  THE  DIVISION  SUPPLIES   THE
REQUESTED  CRIMINAL  HISTORY  INFORMATION  OR  RECEIVES  NOTICE THAT THE
PERSON HAS WITHDRAWN THE APPLICATION FOR EMPLOYMENT, OR  AT  SUCH  OTHER
TIME AS AUTHORIZED PURSUANT TO PARAGRAPH A OF SUBDIVISION TWO OF SECTION
EIGHT HUNDRED FORTY-FIVE-E OF THIS ARTICLE.
  4.  NOTWITHSTANDING  THE  PROVISIONS OF SUBDIVISION EIGHT-A OF SECTION
EIGHT HUNDRED THIRTY-SEVEN OF THIS ARTICLE OR  ANY  OTHER  LAW,  NO  FEE
SHALL  BE  CHARGED  FOR ANY CRIMINAL HISTORY REPORT PROVIDED PURSUANT TO
THIS SECTION OR SUBDIVISION TWENTY OF SECTION TWENTY-FIVE HUNDRED  NINE-
TY-H OF THE EDUCATION LAW.
  5.  THE  COMMISSIONER SHALL, SUBJECT TO THE APPROVAL OF THE COMMISSION
ON CRIMINAL HISTORY INFORMATION, PROMULGATE ALL  RULES  AND  REGULATIONS
NECESSARY  TO  IMPLEMENT  THE  PROVISIONS  OF  THIS SECTION, WHICH SHALL
INCLUDE CONVENIENT PROCEDURES FOR PERSONS TO PROMPTLY VERIFY THE ACCURA-
CY OF THEIR CRIMINAL HISTORY INFORMATION AND, TO THE  EXTENT  AUTHORIZED
BY  LAW, TO HAVE ACCESS TO RELEVANT DOCUMENTS RELATED THERETO.  IN ADDI-
TION, ANY SUCH RULE OR REGULATION PROMULGATED BY THE COMMISSIONER  PRIOR
TO  THE  EFFECTIVE  DATE  OF  SECTION EIGHT HUNDRED FORTY-FIVE-E OF THIS
ARTICLE SHALL BE INEFFECTIVE AND DEEMED REPEALED IF DISAPPROVED  BY  THE
COMMISSION, WHEN FORMED, BY MAJORITY VOTE.
  6.  NOTHING  HEREIN  SHALL  BE  CONSTRUED  OR INTERPRETED TO ALTER THE
PROVISIONS OF ARTICLE TWENTY-THREE-A OF THE CORRECTION  LAW  OR  SECTION
TWO  HUNDRED  NINETY-EIGHT  OF THIS CHAPTER, NOR IN ANY WAY DIMINISH THE
INTEGRITY OF COLLECTIVE  BARGAINING  AGREEMENTS  NEGOTIATED  BETWEEN  AN
EMPLOYER AND ANY CERTIFIED OR AUTHORIZED COLLECTIVE BARGAINING AGENT FOR
AN EMPLOYEE OR PROSPECTIVE EMPLOYEE, NOR TO DIMINISH RIGHTS WHICH ACCRUE
TO SUCH EMPLOYEES OR PROSPECTIVE EMPLOYEES PURSUANT TO SUCH AGREEMENTS.
  S  845-D.  COMMISSION ON CRIMINAL HISTORY INFORMATION. THERE IS HEREBY
CREATED IN THE EXECUTIVE DEPARTMENT THE COMMISSION ON  CRIMINAL  HISTORY
INFORMATION,  WHICH  SHALL  CONSIST  OF THE FOLLOWING TWELVE MEMBERS WHO
SHALL BE APPOINTED NO LESS THAN NINETY DAYS AFTER THE EFFECTIVE DATE  OF
THIS SECTION:
  1. THREE MEMBERS SHALL BE APPOINTED BY THE GOVERNOR:
  A. ONE SUCH MEMBER SHALL BE THE COMMISSIONER;
  B.  ONE  SUCH  MEMBER  SHALL  BE  APPOINTED ON THE RECOMMENDATION OF A
STATEWIDE ORGANIZATION OF EMPLOYERS, WHOSE MEMBERSHIP  INCLUDES  EMPLOY-
ERS,  AS  SUCH  TERM  IS  DEFINED  IN  PARAGRAPH B OF SUBDIVISION ONE OF
SECTION EIGHT HUNDRED FORTY-FIVE-C OF THIS ARTICLE;
  C. ONE SUCH MEMBER SHALL BE A REPRESENTATIVE OF LABOR,  WHO  SHALL  BE
APPOINTED  ON THE RECOMMENDATION OF THE NEW YORK STATE FEDERATION OF THE
AFL-CIO;
  2. THREE MEMBERS SHALL BE APPOINTED BY THE CHIEF JUDGE OF THE COURT OF
APPEALS:
  A. ONE SUCH MEMBER SHALL BE A JUDGE OR FORMER JUDGE WHO  HAS  SUBSTAN-
TIAL EXPERIENCE IN PRESIDING OVER COURTS OF CRIMINAL JURISDICTION;
  B.  ONE SUCH MEMBER SHALL BE AN ACADEMIC EXPERT WITH SIGNIFICANT EXPE-
RIENCE IN COMPUTER HARDWARE AND SOFTWARE APPLICATIONS  AND  COMPUTERIZED
ACCESS TO DATABASE INFORMATION;
  C. ONE SUCH MEMBER SHALL BE AN EXPERT IN PRIVACY ISSUES;
  3.  TWO  MEMBERS  SHALL BE APPOINTED BY THE TEMPORARY PRESIDENT OF THE
SENATE;
  4. TWO MEMBERS SHALL BE APPOINTED BY THE SPEAKER OF THE ASSEMBLY;
  5. ONE MEMBER SHALL BE APPOINTED BY THE MINORITY LEADER OF THE SENATE;
AND

A. 5211                             7

  6. ONE MEMBER SHALL BE APPOINTED BY THE MINORITY LEADER OF THE  ASSEM-
BLY.
  S  845-E.  POWERS  AND  DUTIES  OF  THE COMMISSION ON CRIMINAL HISTORY
INFORMATION. 1. AFTER REVIEW AND STUDY AND INVITING  AND  RECEIVING  ANY
PUBLIC  COMMENT, THE COMMISSION ON CRIMINAL HISTORY INFORMATION, HEREIN-
AFTER REFERRED TO AS THE  COMMISSION,  SHALL  PROMULGATE  STANDARDS  AND
REGULATIONS GOVERNING THE PROCEDURES OF THE DIVISION PURSUANT TO SECTION
EIGHT  HUNDRED  FORTY-FIVE-C OF THIS ARTICLE, INCLUDING THE PROVISION OF
CRIMINAL HISTORY  INFORMATION  TO  AUTHORIZED  EMPLOYERS  AND  EMPLOYEES
PURSUANT  TO  SUCH SECTION. THE STANDARDS AND REGULATIONS PROMULGATED BY
THE COMMISSION SHALL INCLUDE PROCEDURES DESIGNED TO ASSURE THAT:
  A. CRIMINAL HISTORY INFORMATION PROVIDED TO AUTHORIZED  EMPLOYERS  AND
PROSPECTIVE EMPLOYERS INCLUDES ONLY SUCH INFORMATION AS MAY BE DISCLOSED
BY LAW AND IS ACCURATE, UP TO DATE AND PROVIDED IN A TIMELY MANNER;
  B.  UP-TO-DATE  STATUS  INFORMATION  IS MAINTAINED SO THAT CASES WHICH
HAVE BEEN DISPOSED OF ARE ACCURATELY REPORTED;
  C. TO THE MAXIMUM EXTENT POSSIBLE, ALL PROVISIONS  OF  LAW  CONCERNING
THE CONFIDENTIALITY OF FINGERPRINTS AND CRIMINAL HISTORY INFORMATION ARE
OBSERVED BY THE DIVISION, BY EMPLOYERS AND PROSPECTIVE EMPLOYERS AUTHOR-
IZED BY LAW TO REVIEW SUCH INFORMATION, AND BY THEIR AGENTS AND ASSIGNS;
  D. FREQUENT AUDITS AND REVIEWS OF THE CRIMINAL HISTORY DATABASE, MAIN-
TAINED PURSUANT TO SUBDIVISION SIX OF SECTION EIGHT HUNDRED THIRTY-SEVEN
OF  THIS ARTICLE, ARE CONDUCTED BY A QUALIFIED, INDEPENDENT, NON-GOVERN-
MENTAL ENTITY, THE RESULTS OF WHICH  SHALL  BE  MADE  AVAILABLE  TO  THE
PUBLIC,  AND  WHICH  SHALL ASSESS AND MONITOR THE ACCURACY, COMPLETENESS
AND TIMELINESS OF DATABASE INFORMATION, INCLUDING THE DIVISION'S COMPLI-
ANCE WITH ALL APPLICABLE LAWS WITH RESPECT TO THE  MAINTENANCE  OF  SUCH
RECORDS.
  2.  FOR EACH CATEGORY OF EMPLOYERS AUTHORIZED TO HAVE ACCESS TO CRIMI-
NAL HISTORY INFORMATION PURSUANT TO SECTION EIGHT  HUNDRED  FORTY-FIVE-C
OF THIS ARTICLE, THE COMMISSION SHALL, AFTER REVIEW AND STUDY AND INVIT-
ING  AND  RECEIVING  ANY PUBLIC COMMENT, PROMULGATE STANDARDS AND PROCE-
DURES FOR THE FOLLOWING MATTERS:
  A. WHETHER, INSTEAD OF RETURNING FINGERPRINTS UPON COMPLETION  OF  THE
INITIAL SEARCH, THE DIVISION SHALL SUBJECT ALL OR SELECTED CATEGORIES OF
THE  FINGERPRINTS  OBTAINED  BY THE DIVISION PURSUANT TO SUCH SECTION TO
THE DIVISION'S FULL SEARCH AND RETAIN PROCEDURES; AND
  B. WHETHER SUCH EMPLOYER, OR ANY  ONE  OR  MORE  SUBCATEGORY  OF  SUCH
PERSON  OR  ENTITY'S  PROSPECTIVE  EMPLOYEES, SHALL, IN ADDITION TO SUCH
AUTHORIZED OR REQUIRED STATE CRIMINAL HISTORY CHECKS, BE  AUTHORIZED  OR
REQUIRED TO SUBMIT OR CAUSE THE SUBMISSION OF FINGERPRINTS TO THE FEDER-
AL  BUREAU  OF  INVESTIGATION  FOR  A NATIONWIDE CRIMINAL HISTORY SEARCH
CONCERNING SUCH PERSON PURSUANT TO APPLICABLE FEDERAL LAWS.
  3. NO MEMBER OF THE COMMISSION SHALL BE DISQUALIFIED FROM HOLDING  ANY
PUBLIC OFFICE OR EMPLOYMENT, NOR SHALL HE OR SHE FORFEIT ANY SUCH OFFICE
OR  EMPLOYMENT BY VIRTUE OF HIS OR HER APPOINTMENT HEREUNDER. MEMBERS OF
THE COMMISSION SHALL RECEIVE NO  COMPENSATION  FOR  THEIR  SERVICES  BUT
SHALL  BE  ALLOWED  THEIR  ACTUAL AND NECESSARY EXPENSES INCURRED IN THE
PERFORMANCE OF THEIR FUNCTIONS HEREUNDER. A MEMBER OF THE COMMISSION MAY
BE REMOVED BY THE APPOINTING AUTHORITY ONLY FOR GOOD CAUSE, AFTER NOTICE
AND AN OPPORTUNITY TO BE HEARD. VACANCIES SHALL BE FILLED  IN  THE  SAME
MANNER AS ORIGINAL APPOINTMENTS.
  4. THE COMMISSION SHALL BE AUTHORIZED TO:
  A. CALL UPON ANY COURT, AGENCY, DEPARTMENT, OFFICE, DIVISION OR PUBLIC
AUTHORITY  OF  THIS STATE TO SUPPLY IT WITH SUCH INFORMATION AND ASSIST-
ANCE AS THE COMMISSION DEEMS NECESSARY  TO  DISCHARGE  ITS  RESPONSIBIL-

A. 5211                             8

ITIES.  EACH  COURT,  AGENCY,  DEPARTMENT,  OFFICE,  DIVISION AND PUBLIC
AUTHORITY OF THIS STATE SHALL COOPERATE WITH THE COMMISSION AND  FURNISH
SUCH  INFORMATION  AND  ASSISTANCE  AS  IT  REQUESTS  TO  ACCOMPLISH ITS
PURPOSES;
  B.  CONDUCT  PUBLIC  HEARINGS,  HEAR  THE  TESTIMONY  OF WITNESSES AND
REQUIRE THE PRODUCTION OF ANY DOCUMENTS THE COMMISSION DEEMS  REASONABLY
NECESSARY TO CARRY OUT ITS RESPONSIBILITIES;
  C. APPOINT AN EXECUTIVE DIRECTOR, A COUNSEL OR COUNSELS AND SUCH OTHER
STAFF  AS THE COMMISSION DETERMINES NECESSARY TO CARRY OUT ITS RESPONSI-
BILITIES;
  D. CONTRACT WITH ANY STATE OR PRIVATE ENTITY FOR THE PROVISION OF SUCH
SERVICES AS THE COMMISSION DETERMINES TO BE NECESSARY; AND
  E. TAKE SUCH OTHER ACTIONS NOT INCONSISTENT WITH THE PURPOSES OF  THIS
SECTION AS SHALL ENABLE THE COMMISSION TO CARRY OUT ITS FUNCTIONS.
  5.  MATTERS  BEFORE  THE COMMISSION SHALL BE DECIDED BY MAJORITY VOTE,
EXCEPT THAT NO ACTION OR DECISION MAY  BE  APPROVED  BY  THE  COMMISSION
PURSUANT  TO  PARAGRAPH A OR B OF SUBDIVISION TWO OF THIS SECTION UNLESS
SUCH ACTION  OR  DECISION  IS  APPROVED  BY  THE  AFFIRMATIVE  VOTES  OF
TWO-THIRDS  OR MORE OF THE MEMBERS OF SUCH COMMISSION.  A CHAIRPERSON OF
THE COMMISSION SHALL BE SELECTED FROM AMONG THE MEMBERS OF  THE  COMMIS-
SION, BY MAJORITY VOTE.
  6. THE COMMISSION SHALL ISSUE AN INTERIM REPORT TO THE GOVERNOR, CHIEF
JUDGE  OF  THE  COURT OF APPEALS, THE TEMPORARY PRESIDENT OF THE SENATE,
THE SPEAKER OF THE ASSEMBLY AND THE MINORITY LEADERS OF THE  SENATE  AND
ASSEMBLY  ON  OR  BEFORE  SEPTEMBER  FIRST,  TWO THOUSAND TEN AND ANNUAL
REPORTS ON EACH  SEPTEMBER  FIRST  THEREAFTER  IN  ACCORDANCE  WITH  THE
PROVISIONS OF THIS SECTION.  SUCH REPORT SHALL ALSO BE MADE AVAILABLE TO
THE PUBLIC.
  S  9. Subdivision 8-a of section 837 of the executive law,  as amended
by chapter 561 of the laws of 2006, is amended to read as follows:
  8-a. Charge a fee when, pursuant to statute or the regulations of  the
division,  it  conducts  a  search  of  its criminal history records and
returns a report thereon in connection with an application  for  employ-
ment  or for a license or permit, EXCEPT AS PROVIDED IN SUBDIVISION FOUR
OF SECTION EIGHT HUNDRED FORTY-FIVE-C  OF  THIS  ARTICLE.  The  division
shall  adopt  and  may, from time to time, amend a schedule of such fees
which shall be in amounts determined by the division  to  be  reasonably
related  to  the  cost of conducting such searches and returning reports
thereon but, in no event, shall any such fee exceed twenty-five  dollars
and  an additional surcharge of fifty dollars. The comptroller is hereby
authorized to deposit such fees into the general fund, provided,  howev-
er,  that  the  monies  received  by  the  division  of criminal justice
services for payment of the additional surcharge shall be  deposited  in
equal  amounts to the general fund and to the fingerprint identification
and technology account.  Notwithstanding  the  foregoing,  the  division
shall  not  request  or  accept  any  fee  for searching its records and
supplying a criminal history report  pursuant  to  section  two  hundred
fifty-one-b  of  the  general  business law relating to participating in
flight instruction at any aeronautical facility, flight school or insti-
tution of higher learning.
  S 10. This act shall take effect immediately  provided  that  sections
one  through  six  of this act and section 845-e of the executive law as
added by section eight of this act shall take effect  on  the  ninetieth
day after such sections shall have become a law.  Effective immediately,
any  rules  and regulations of the division of criminal justice services

A. 5211                             9

necessary to implement the provisions of this  act  may  be  promulgated
prior to such effective date.