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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| May 18, 2010 |
held for consideration in governmental employees |
| Jan 06, 2010 |
referred to governmental employees |
| Jan 21, 2009 |
referred to governmental employees |
Assembly Bill A2808
2009-2010 Legislative Session
Enacts provisions to promote drug-free workplaces within government through fair and reasonable drug testing
download bill text pdfSponsored By
KOLB
Archive: Last Bill Status - In Assembly Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
co-Sponsors
Joseph Errigo
multi-Sponsors
Janet Duprey
Tony Jordan
David McDonough
Teresa Sayward
2009-A2808 (ACTIVE) - Details
2009-A2808 (ACTIVE) - Summary
Enacts the drug-free workplace act to promote the goal of drug-free workplaces within government through drug testing; establishes rules for the use of drug testing in workplaces in the private sector; creates a drug offender punishment program for the rehabilitation of nonviolent felony drug offenders; provides for confidentiality of testing results
2009-A2808 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
2808
2009-2010 Regular Sessions
I N A S S E M B L Y
January 21, 2009
___________
Introduced by M. of A. KOLB, ERRIGO -- Multi-Sponsored by -- M. of A.
DUPREY, McDONOUGH, SAYWARD, WALKER -- read once and referred to the
Committee on Governmental Employees
AN ACT to amend the civil service law, the labor law and the criminal
procedure law, in relation to drug-free workplaces
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Article 5 of the civil service law is amended by adding a
new title F to read as follows:
TITLE F
DRUG-FREE WORKPLACES
SECTION 84. SHORT TITLE.
84-A. PURPOSE.
84-B. FINDINGS.
84-C. NO LEGAL DUTY TO TEST.
84-D. DEFINITIONS.
84-E. NOTICE TO EMPLOYEES.
84-F. TYPES OF TESTING.
84-G. PROCEDURES AND EMPLOYEE PROTECTION.
84-H. CONFIRMATION TESTING.
84-I. EMPLOYEE PROTECTION.
84-J. CONFIDENTIALITY.
84-K. DRUG TESTING STANDARDS; LABORATORIES.
84-L. RULES.
84-M. DISCIPLINE REMEDIES.
84-N. NONDISCIPLINE REMEDIES.
84-O. FEDERAL COMPLIANCE.
84-P. LICENSE FEE.
S 84. SHORT TITLE. THIS TITLE SHALL BE KNOWN AND MAY BE CITED AS THE
"DRUG-FREE WORKPLACE ACT."
S 84-A. PURPOSE. THIS TITLE IS INTENDED TO:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05414-01-9
A. 2808 2
(A) PROMOTE THE GOAL OF DRUG-FREE WORKPLACES WITHIN GOVERNMENT THROUGH
FAIR AND REASONABLE DRUG TESTING METHODS FOR THE PROTECTION OF PUBLIC
EMPLOYEES AND EMPLOYERS.
(B) ENCOURAGE EMPLOYERS TO PROVIDE EMPLOYEES WHO HAVE DRUG USE PROB-
LEMS WITH AN OPPORTUNITY TO PARTICIPATE IN AN EMPLOYEE ASSISTANCE
PROGRAM OR AN ALCOHOL AND DRUG REHABILITATION PROGRAM.
(C) PROVIDE FOR CONFIDENTIALITY OF TESTING RESULTS.
S 84-B. FINDINGS. THE LEGISLATURE FINDS THAT:
(A) DRUG USE HAS SERIOUS ADVERSE EFFECTS UPON A SIGNIFICANT PORTION OF
THE WORK FORCE, RESULTING IN BILLIONS OF DOLLARS WORTH OF LOST PRODUC-
TIVITY EACH YEAR AND POSING A THREAT TO THE WORKPLACE AND TO PUBLIC
SAFETY AND SECURITY.
(B) MAINTAINING A HEALTHY AND PRODUCTIVE WORK FORCE, SAFE WORKING
CONDITIONS FREE FROM THE EFFECTS OF DRUGS, AND QUALITY PRODUCTS AND
SERVICES IS IMPORTANT TO EMPLOYERS, EMPLOYEES, AND THE GENERAL PUBLIC IN
THIS STATE. THE LEGISLATURE FURTHER FINDS THAT DRUG USE CREATES A VARI-
ETY OF WORKPLACE PROBLEMS, INCLUDING INCREASED INJURY ON THE JOB,
INCREASED ABSENTEEISM, INCREASED FINANCIAL BURDEN ON HEALTH AND BENEFIT
PROGRAMS, INCREASED WORKPLACE THEFT, DECREASED EMPLOYEE MORALE,
DECREASED PRODUCTIVITY, AND A DECLINE IN THE QUALITY OF PRODUCTS AND
SERVICES.
(C) CERTAIN DRUG TESTING STANDARDS ARE NECESSARY TO PROTECT PERSONS
PARTICIPATING IN WORKPLACE DRUG TESTING PROGRAMS.
(D) IN BALANCING THE INTERESTS OF EMPLOYERS, EMPLOYEES, AND THE
WELFARE OF THE GENERAL PUBLIC, THE ESTABLISHMENT OF STANDARDS TO ASSURE
FAIR AND ACCURATE TESTING FOR DRUGS IN THE WORKPLACE IS IN THE BEST
INTERESTS OF ALL.
S 84-C. NO LEGAL DUTY TO TEST. ALL DRUG TESTING CONDUCTED BY EMPLOY-
ERS SHALL BE IN CONFORMITY WITH THE STANDARDS ESTABLISHED IN THIS TITLE
AND ALL APPLICABLE RULES PROMULGATED PURSUANT TO THIS TITLE. HOWEVER,
EMPLOYERS SHALL NOT HAVE A LEGAL DUTY UNDER THIS TITLE TO REQUEST AN
EMPLOYEE OR JOB APPLICANT TO UNDERGO DRUG TESTING. NO TESTING OF EMPLOY-
EES SHALL TAKE EFFECT UNTIL LOCAL DRUG ABUSE ASSISTANCE PROGRAMS HAVE
BEEN IDENTIFIED.
S 84-D. DEFINITIONS. EXCEPT WHERE THE CONTEXT OTHERWISE REQUIRES, AS
USED IN THIS TITLE:
(A) "DRUG" MEANS ALCOHOL, INCLUDING DISTILLED SPIRITS, WINE, MALT
BEVERAGES, AND INTOXICATING LIQUORS; AMPHETAMINES; CANNABINOIDS;
COCAINE; PHENCYCLIDINE (PCP); HALLUCINOGENS; METHAQUALONE; OPIATES;
BARBITURATES; BENZODIAZEPINES; SYNTHETIC NARCOTICS; DESIGNER DRUGS; OR A
METABOLITE OF ANY OF THE SUBSTANCES LISTED HEREIN.
(B) "DRUG TEST" OR "TEST" MEANS ANY CHEMICAL, BIOLOGICAL, OR PHYSICAL
INSTRUMENTAL ANALYSIS ADMINISTERED FOR THE PURPOSE OF DETERMINING THE
PRESENCE OR ABSENCE OF A DRUG OR ITS METABOLITES.
(C) "INITIAL DRUG TEST" MEANS A SENSITIVE, RAPID, AND RELIABLE PROCE-
DURE TO IDENTIFY NEGATIVE AND PRESUMPTIVE POSITIVE SPECIMENS. ALL
INITIAL TESTS SHALL USE AN IMMUNOASSAY PROCEDURE OR AN EQUIVALENT, OR
SHALL USE A MORE ACCURATE SCIENTIFICALLY ACCEPTED METHOD APPROVED BY THE
OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES AS SUCH MORE ACCURATE
TECHNOLOGY BECOMES AVAILABLE IN A COST-EFFECTIVE FORM.
(D) "CONFIRMATION TEST", "CONFIRMED TEST", OR "CONFIRMED DRUG TEST"
MEANS A SECOND ANALYTICAL PROCEDURE USED TO IDENTIFY THE PRESENCE OF A
SPECIFIC DRUG OR METABOLITE IN A SPECIMEN. THE CONFIRMATION TEST MUST
BE DIFFERENT IN SCIENTIFIC PRINCIPLE FROM THAT OF THE INITIAL TEST
PROCEDURE. THIS CONFIRMATION METHOD MUST BE CAPABLE OF PROVIDING
REQUIRED SPECIFICITY, SENSITIVITY, AND QUANTITATIVE ACCURACY.
A. 2808 3
(E) "CHAIN OF CUSTODY" REFERS TO THE METHODOLOGY OF TRACKING SPECIFIED
MATERIALS OR SUBSTANCES FOR THE PURPOSE OF MAINTAINING CONTROL AND
ACCOUNTABILITY FROM INITIAL COLLECTION TO FINAL DISPOSITION FOR ALL SUCH
MATERIALS OR SUBSTANCES AND PROVIDING FOR ACCOUNTABILITY AT EACH STAGE
IN HANDLING, TESTING, STORING SPECIMENS, AND REPORTING OF TEST RESULTS.
(F) "JOB APPLICANT" MEANS A PERSON WHO HAS APPLIED FOR A SPECIAL RISK
OR SAFETY-SENSITIVE POSITION WITH AN EMPLOYER AND HAS BEEN OFFERED
EMPLOYMENT CONDITIONED UPON SUCCESSFULLY PASSING A DRUG TEST.
(G) "EMPLOYEE" MEANS ANY PERSON WHO WORKS FOR SALARY, WAGES, OR OTHER
REMUNERATION FOR AN EMPLOYER.
(H) "EMPLOYER" MEANS ANY AGENCY WITHIN STATE GOVERNMENT THAT EMPLOYS
INDIVIDUALS FOR SALARY, WAGES, OR OTHER REMUNERATION.
(I) "PRESCRIPTION OR NONPRESCRIPTION MEDICATION" MEANS A DRUG OR MEDI-
CATION OBTAINED PURSUANT TO A PRESCRIPTION OR A MEDICATION THAT IS
AUTHORIZED PURSUANT TO FEDERAL OR STATE LAW FOR GENERAL DISTRIBUTION AND
USE WITHOUT A PRESCRIPTION IN THE TREATMENT OF HUMAN DISEASES, AILMENTS,
OR INJURIES.
(J) "REASONABLE SUSPICION DRUG TESTING" MEANS DRUG TESTING BASED ON A
BELIEF THAT THE EMPLOYEE IS USING OR HAS USED DRUGS IN VIOLATION OF THE
EMPLOYER'S POLICY DRAWN FROM SPECIFIC OBJECTIVE AND ARTICULABLE FACTS
AND REASONABLE INFERENCES DRAWN FROM THOSE FACTS IN LIGHT OF EXPERIENCE.
REASONABLE SUSPICION DRUG TESTING SHALL NOT BE REQUIRED EXCEPT UPON THE
RECOMMENDATION OF A SUPERVISOR WHO IS AT LEAST ONE LEVEL OF SUPERVISION
HIGHER THAN THE IMMEDIATE SUPERVISOR OF THE EMPLOYEE IN QUESTION. AMONG
OTHER THINGS, SUCH FACTS AND INFERENCES MAY BE BASED UPON:
1. OBSERVABLE PHENOMENA WHILE AT WORK, SUCH AS DIRECT OBSERVATION OF
DRUG USE OR OF THE PHYSICAL SYMPTOMS OR MANIFESTATIONS OF BEING UNDER
THE INFLUENCE OF A DRUG.
2. ABNORMAL CONDUCT OR ERRATIC BEHAVIOR WHILE AT WORK OR A SIGNIFICANT
DETERIORATION IN WORK PERFORMANCE.
3. A REPORT OF DRUG USE, PROVIDED BY A RELIABLE AND CREDIBLE SOURCE,
WHICH HAS BEEN INDEPENDENTLY CORROBORATED.
4. EVIDENCE THAT AN INDIVIDUAL HAS TAMPERED WITH A DRUG TEST DURING
HIS EMPLOYMENT WITH THE CURRENT EMPLOYER.
5. INFORMATION THAT AN EMPLOYEE HAS CAUSED, OR CONTRIBUTED TO, AN
ACCIDENT WHILE AT WORK.
6. EVIDENCE THAT AN EMPLOYEE HAS USED, POSSESSED, SOLD, SOLICITED, OR
TRANSFERRED DRUGS WHILE WORKING OR WHILE ON THE EMPLOYER'S PREMISES OR
WHILE OPERATING THE EMPLOYER'S VEHICLE, MACHINERY, OR EQUIPMENT.
(K) "SPECIMEN" MEANS A TISSUE OR PRODUCT OF THE HUMAN BODY CAPABLE OF
REVEALING THE PRESENCE OF DRUGS OR THEIR METABOLITES.
(L) "EMPLOYEE ASSISTANCE PROGRAM" MEANS AN ESTABLISHED PROGRAM FOR
EMPLOYEE ASSESSMENT, COUNSELING, AND POSSIBLE REFERRAL TO AN ALCOHOL AND
DRUG REHABILITATION PROGRAM.
(M) "SAFETY-SENSITIVE POSITION" MEANS ANY POSITION, INCLUDING A SUPER-
VISORY OR MANAGEMENT POSITION, IN WHICH A DRUG IMPAIRMENT WOULD CONSTI-
TUTE AN IMMEDIATE AND DIRECT THREAT TO PUBLIC HEALTH OR SAFETY.
S 84-E. NOTICE TO EMPLOYEES. (A) EMPLOYERS WITH NO DRUG TESTING
PROGRAM SHALL ENSURE THAT AT LEAST SIXTY DAYS ELAPSE BETWEEN A GENERAL
ONE-TIME NOTICE TO ALL EMPLOYEES THAT A DRUG TESTING PROGRAM IS BEING
IMPLEMENTED AND THE BEGINNING OF ACTUAL DRUG TESTING. EMPLOYERS WITH
DRUG TESTING PROGRAMS IN PLACE PRIOR TO THE EFFECTIVE DATE OF THIS
SECTION ARE NOT REQUIRED TO PROVIDE A SIXTY-DAY NOTICE PERIOD.
(B) PRIOR TO TESTING, ALL EMPLOYEES AND JOB APPLICANTS FOR EMPLOYMENT
SHALL BE GIVEN A WRITTEN POLICY STATEMENT FROM THE EMPLOYER WHICH
CONTAINS:
A. 2808 4
1. A GENERAL STATEMENT OF THE EMPLOYER'S POLICY ON EMPLOYEE DRUG USE,
WHICH SHALL IDENTIFY:
(I) THE TYPES OF TESTING AN EMPLOYEE OR JOB APPLICANT MAY BE REQUIRED
TO SUBMIT TO, INCLUDING REASONABLE SUSPICION OR OTHER BASIS; AND
(II) THE ACTIONS THE EMPLOYER MAY TAKE AGAINST AN EMPLOYEE OR JOB
APPLICANT ON THE BASIS OF A POSITIVE CONFIRMED DRUG TEST RESULT.
2. A STATEMENT ADVISING THE EMPLOYEE OR JOB APPLICANT OF THE EXISTENCE
OF THIS SECTION.
3. A GENERAL STATEMENT CONCERNING CONFIDENTIALITY.
4. PROCEDURES FOR EMPLOYEES AND JOB APPLICANTS TO CONFIDENTIALLY
REPORT THE USE OF PRESCRIPTION OR NONPRESCRIPTION MEDICATIONS BOTH
BEFORE AND AFTER BEING TESTED. ADDITIONALLY, EMPLOYEES AND JOB APPLI-
CANTS SHALL RECEIVE NOTICE OF THE MOST COMMON MEDICATIONS BY BRAND NAME
OR COMMON NAME, AS APPLICABLE, AS WELL AS BY CHEMICAL NAME, WHICH MAY
ALTER OR AFFECT A DRUG TEST. A LIST OF SUCH MEDICATIONS SHALL BE DEVEL-
OPED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES.
5. THE CONSEQUENCES OF REFUSING TO SUBMIT TO A DRUG TEST.
6. NAMES, ADDRESSES, AND TELEPHONE NUMBERS OF EMPLOYEE ASSISTANCE
PROGRAMS AND LOCAL ALCOHOL AND DRUG REHABILITATION PROGRAMS.
7. A STATEMENT THAT AN EMPLOYEE OR JOB APPLICANT WHO RECEIVES A POSI-
TIVE CONFIRMED DRUG TEST RESULT MAY CONTEST OR EXPLAIN THE RESULT TO THE
EMPLOYER WITHIN FIVE WORKING DAYS AFTER WRITTEN NOTIFICATION OF THE
POSITIVE TEST RESULT. IF AN EMPLOYEE OR JOB APPLICANT'S EXPLANATION OR
CHALLENGE IS UNSATISFACTORY TO THE EMPLOYER, THE PERSON MAY CONTEST THE
DRUG TEST RESULT AS PROVIDED BY SECTIONS EIGHTY-FOUR-M AND EIGHTY-FOUR-N
OF THIS TITLE.
8. A STATEMENT INFORMING THE EMPLOYEE OR JOB APPLICANT OF HIS OR HER
RESPONSIBILITY TO NOTIFY THE LABORATORY OF ANY ADMINISTRATIVE OR CIVIL
ACTIONS BROUGHT PURSUANT TO THIS TITLE.
9. A LIST OF ALL DRUGS FOR WHICH THE EMPLOYER WILL TEST, DESCRIBED BY
BRAND NAMES OR COMMON NAMES, AS APPLICABLE, AS WELL AS BY CHEMICAL
NAMES.
10. A STATEMENT REGARDING ANY APPLICABLE COLLECTIVE BARGAINING AGREE-
MENT OR CONTRACT AND THE RIGHT TO APPEAL TO THE APPROPRIATE AGENCY.
11. A STATEMENT NOTIFYING EMPLOYEES AND JOB APPLICANTS OF THEIR RIGHT
TO CONSULT THE TESTING LABORATORY FOR TECHNICAL INFORMATION REGARDING
PRESCRIPTION AND NONPRESCRIPTION MEDICATION.
(C) AN EMPLOYER SHALL INCLUDE NOTICE OF DRUG TESTING ON VACANCY
ANNOUNCEMENTS FOR THOSE POSITIONS WHERE DRUG TESTING IS REQUIRED. A
NOTICE OF THE EMPLOYER'S DRUG TESTING POLICY SHALL ALSO BE POSTED IN AN
APPROPRIATE AND CONSPICUOUS LOCATION ON THE EMPLOYER'S PREMISES, AND
COPIES OF THE POLICY SHALL BE MADE AVAILABLE FOR INSPECTION BY THE
GENERAL PUBLIC DURING REGULAR BUSINESS HOURS IN THE EMPLOYER'S PERSONNEL
OFFICE OR OTHER SUITABLE LOCATIONS.
S 84-F. TYPES OF TESTING. AN EMPLOYER IS AUTHORIZED, BUT NOT
REQUIRED, TO CONDUCT THE FOLLOWING TYPES OF DRUG TESTS:
(A) JOB APPLICANT TESTING. AN EMPLOYER MAY REQUIRE JOB APPLICANTS TO
SUBMIT TO A DRUG TEST AND MAY USE A REFUSAL TO SUBMIT TO A DRUG TEST OR
A POSITIVE CONFIRMED DRUG TEST AS A BASIS FOR REFUSAL TO HIRE THE JOB
APPLICANT.
(B) REASONABLE SUSPICION. AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO
SUBMIT TO REASONABLE SUSPICION DRUG TESTING.
(C) ROUTINE FITNESS FOR DUTY. AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO
SUBMIT TO A DRUG TEST IF THE TEST IS CONDUCTED AS PART OF A ROUTINELY
SCHEDULED EMPLOYEE FITNESS FOR DUTY MEDICAL EXAMINATION THAT IS PART OF
A. 2808 5
THE EMPLOYER'S ESTABLISHED POLICY OR THAT IS SCHEDULED ROUTINELY FOR ALL
MEMBERS OF AN EMPLOYMENT CLASSIFICATION OR GROUP.
(D) FOLLOW-UP TESTING. IF THE EMPLOYEE IN THE COURSE OF EMPLOYMENT
ENTERS AN EMPLOYEE ASSISTANCE PROGRAM FOR DRUG-RELATED PROBLEMS, OR AN
ALCOHOL AND DRUG REHABILITATION PROGRAM, THE EMPLOYER MAY REQUIRE SUCH
EMPLOYEE TO SUBMIT TO A DRUG TEST AS A FOLLOW-UP TO SUCH PROGRAM, AND ON
A QUARTERLY, SEMIANNUAL, OR ANNUAL BASIS FOR UP TO TWO YEARS THEREAFTER.
S 84-G. PROCEDURES AND EMPLOYEE PROTECTION. ALL SPECIMEN COLLECTION
AND TESTING FOR DRUGS UNDER THIS TITLE SHALL BE PERFORMED IN ACCORDANCE
WITH THE FOLLOWING PROCEDURES:
(A) A SAMPLE SHALL BE COLLECTED WITH DUE REGARD TO THE PRIVACY OF THE
INDIVIDUAL PROVIDING THE SAMPLE, AND IN A MANNER REASONABLY CALCULATED
TO PREVENT SUBSTITUTION OR CONTAMINATION OF THE SAMPLE.
(B) SPECIMEN COLLECTION SHALL BE DOCUMENTED, AND THE DOCUMENTATION
PROCEDURES SHALL INCLUDE:
1. LABELING OF SPECIMEN CONTAINERS SO AS TO REASONABLY PRECLUDE THE
LIKELIHOOD OF ERRONEOUS IDENTIFICATION OF TEST RESULTS.
2. A FORM FOR THE EMPLOYEE OR JOB APPLICANT TO PROVIDE ANY INFORMA-
TION HE CONSIDERS RELEVANT TO THE TEST, INCLUDING IDENTIFICATION OF
CURRENTLY OR RECENTLY USED PRESCRIPTION OR NONPRESCRIPTION MEDICATION,
OR OTHER RELEVANT MEDICAL INFORMATION. SUCH FORM SHALL PROVIDE NOTICE
OF THE MOST COMMON MEDICATIONS BY BRAND NAME OR COMMON NAME, AS APPLICA-
BLE, AS WELL AS BY CHEMICAL NAME, WHICH MAY ALTER OR AFFECT A DRUG TEST.
THE PROVIDING OF INFORMATION SHALL NOT PRECLUDE THE ADMINISTRATION OF
THE DRUG TEST, BUT SHALL BE TAKEN INTO ACCOUNT IN INTERPRETING ANY POSI-
TIVE CONFIRMED RESULTS.
(C) SPECIMEN COLLECTION, STORAGE, AND TRANSPORTATION TO THE TESTING
SITE SHALL BE PERFORMED IN A MANNER WHICH WILL REASONABLY PRECLUDE SPEC-
IMEN CONTAMINATION OR ADULTERATION.
(D) EACH INITIAL AND CONFIRMATION TEST CONDUCTED UNDER THIS TITLE,
NOT INCLUDING THE TAKING OR COLLECTING OF A SPECIMEN TO BE TESTED, SHALL
BE CONDUCTED BY A LICENSED LABORATORY AS DESCRIBED IN SECTION
EIGHTY-FOUR-K OF THIS TITLE.
(E) A SPECIMEN FOR A DRUG TEST MAY BE TAKEN OR COLLECTED BY ANY OF THE
FOLLOWING PERSONS:
1. A PHYSICIAN, A PHYSICIAN'S ASSISTANT, A REGISTERED PROFESSIONAL
NURSE, A LICENSED PRACTICAL NURSE, A NURSE PRACTITIONER, OR A CERTIFIED
PARAMEDIC WHO IS PRESENT AT THE SCENE OF AN ACCIDENT FOR THE PURPOSE OF
RENDERING EMERGENCY MEDICAL SERVICE OR TREATMENT.
2. A QUALIFIED PERSON EMPLOYED BY A LICENSED LABORATORY.
(F) A PERSON WHO COLLECTS OR TAKES A SPECIMEN FOR A DRUG TEST
CONDUCTED PURSUANT TO THIS SECTION SHALL COLLECT AN AMOUNT SUFFICIENT
FOR TWO DRUG TESTS AS DETERMINED BY THE OFFICE OF ALCOHOLISM AND
SUBSTANCE ABUSE SERVICES.
(G) ANY DRUG TEST CONDUCTED OR REQUESTED BY AN EMPLOYER MAY OCCUR
BEFORE, DURING, OR IMMEDIATELY AFTER THE REGULAR WORK PERIOD OF THE
EMPLOYEE, AND SHALL BE DEEMED TO BE PERFORMED DURING WORK TIME FOR THE
PURPOSES OF DETERMINING COMPENSATION AND BENEFITS FOR THE EMPLOYEE.
(H) EVERY SPECIMEN THAT PRODUCES A POSITIVE CONFIRMED RESULT SHALL BE
PRESERVED BY THE LICENSED LABORATORY THAT CONDUCTS THE CONFIRMATION TEST
FOR A PERIOD OF AT LEAST TWO HUNDRED TEN DAYS FROM THE TIME THE RESULTS
OF THE POSITIVE CONFIRMATION TEST ARE MAILED OR OTHERWISE DELIVERED TO
THE EMPLOYER. HOWEVER, IF AN EMPLOYEE OR JOB APPLICANT UNDERTAKES AN
ADMINISTRATIVE OR LEGAL CHALLENGE TO THE TEST RESULT, THE EMPLOYEE OR
JOB APPLICANT SHALL NOTIFY THE LABORATORY AND THE SAMPLE SHALL BE
RETAINED BY THE LABORATORY UNTIL THE CASE OR ADMINISTRATIVE APPEAL IS
A. 2808 6
SETTLED. DURING THE ONE HUNDRED EIGHTY-DAY PERIOD AFTER WRITTEN NOTIFI-
CATION OF A POSITIVE TEST RESULT, THE EMPLOYEE OR JOB APPLICANT WHO HAS
PROVIDED THE SPECIMEN SHALL BE PERMITTED BY THE EMPLOYER TO HAVE A
PORTION OF THE SPECIMEN RETESTED, AT THE EMPLOYEE OR JOB APPLICANT'S
EXPENSE, AT ANOTHER LABORATORY, LICENSED AND APPROVED BY THE OFFICE OF
ALCOHOLISM AND SUBSTANCE ABUSE SERVICES, CHOSEN BY THE EMPLOYEE OR JOB
APPLICANT. THE SECOND LABORATORY MUST TEST AN EQUAL OR GREATER SENSI-
TIVITY FOR THE DRUG IN QUESTION AS THE FIRST LABORATORY. THE FIRST
LABORATORY WHICH PERFORMED THE TEST FOR THE EMPLOYER SHALL BE RESPONSI-
BLE FOR THE TRANSFER OF THE PORTION OF THE SPECIMEN TO BE RETESTED, AND
FOR THE INTEGRITY OF THE CHAIN OF CUSTODY DURING SUCH TRANSFER.
(I) WITHIN FIVE WORKING DAYS AFTER RECEIPT OF A POSITIVE CONFIRMED
TEST RESULT FROM THE TESTING LABORATORY, AN EMPLOYER SHALL INFORM AN
EMPLOYEE OR JOB APPLICANT IN WRITING OF SUCH POSITIVE TEST RESULT, THE
CONSEQUENCES OF SUCH RESULTS, AND THE OPTIONS AVAILABLE TO THE EMPLOYEE
OR JOB APPLICANT.
(J) THE EMPLOYER SHALL PROVIDE TO THE EMPLOYEE OR JOB APPLICANT, UPON
REQUEST, A COPY OF THE TEST RESULTS.
(K) WITHIN FIVE WORKING DAYS AFTER RECEIVING NOTICE OF A POSITIVE
CONFIRMED TEST RESULT, THE EMPLOYEE OR JOB APPLICANT MAY SUBMIT INFORMA-
TION TO AN EMPLOYER EXPLAINING OR CONTESTING THE TEST RESULTS, AND WHY
THE RESULTS DO NOT CONSTITUTE A VIOLATION OF THE EMPLOYER'S POLICY.
(L) IF AN EMPLOYEE OR JOB APPLICANT'S EXPLANATION OR CHALLENGE OF THE
POSITIVE TEST RESULTS IS UNSATISFACTORY TO THE EMPLOYER, A WRITTEN
EXPLANATION AS TO WHY THE EMPLOYEE OR JOB APPLICANT'S EXPLANATION IS
UNSATISFACTORY, ALONG WITH THE REPORT OF POSITIVE RESULTS, SHALL BE
PROVIDED BY THE EMPLOYER TO THE EMPLOYEE OR JOB APPLICANT. ALL SUCH
DOCUMENTATION SHALL BE KEPT CONFIDENTIAL BY THE EMPLOYER PURSUANT TO
SECTION EIGHTY-FOUR-J OF THIS TITLE AND SHALL BE RETAINED BY THE EMPLOY-
ER FOR AT LEAST ONE YEAR.
(M) NO EMPLOYER MAY DISCHARGE, DISCIPLINE, REFUSE TO HIRE, DISCRIMI-
NATE AGAINST, OR REQUEST OR REQUIRE REHABILITATION OF AN EMPLOYEE OR JOB
APPLICANT ON THE SOLE BASIS OF A POSITIVE TEST RESULT THAT HAS NOT BEEN
VERIFIED BY A CONFIRMATION TEST.
(N) IN ADDITION TO THE LIMITATION UNDER SUBDIVISION (M) OF THIS
SECTION:
1. NO EMPLOYER MAY DISCHARGE, DISCIPLINE, OR DISCRIMINATE AGAINST AN
EMPLOYEE ON THE SOLE BASIS OF THE EMPLOYEE'S FIRST POSITIVE CONFIRMED
DRUG TEST, UNLESS THE EMPLOYER HAS FIRST GIVEN THE EMPLOYEE AN OPPORTU-
NITY TO PARTICIPATE IN, AT THE EMPLOYEE'S OWN EXPENSE OR PURSUANT TO
COVERAGE UNDER A HEALTH INSURANCE PLAN, AN EMPLOYEE ASSISTANCE PROGRAM
OR AN ALCOHOL AND DRUG REHABILITATION PROGRAM, AND:
(I) THE EMPLOYEE HAS EITHER REFUSED TO PARTICIPATE IN THE EMPLOYEE
ASSISTANCE PROGRAM OR THE ALCOHOL AND DRUG REHABILITATION PROGRAM OR HAS
FAILED TO SUCCESSFULLY COMPLETE SUCH PROGRAM, AS EVIDENCED BY WITHDRAWAL
FROM THE PROGRAM BEFORE ITS COMPLETION OR A REPORT FROM THE PROGRAM
INDICATING UNSATISFACTORY COMPLIANCE, OR BY A POSITIVE TEST RESULT ON A
CONFIRMATION TEST AFTER COMPLETION OF THE PROGRAM; OR
(II) THE EMPLOYEE HAS FAILED OR REFUSED TO SIGN A WRITTEN CONSENT FORM
ALLOWING THE EMPLOYER TO OBTAIN INFORMATION REGARDING THE PROGRESS AND
SUCCESSFUL COMPLETION OF AN EMPLOYEE ASSISTANCE PROGRAM OR AN ALCOHOL
AND DRUG REHABILITATION PROGRAM.
2. AN EMPLOYEE IN A SAFETY SENSITIVE POSITION SHALL BE PLACED BY THE
EMPLOYER IN A NON-SAFETY SENSITIVE POSITION, OR IF SUCH POSITION IS
UNAVAILABLE, ON LEAVE STATUS WHILE PARTICIPATING IN AN EMPLOYEE ASSIST-
ANCE PROGRAM OR AN ALCOHOL AND DRUG REHABILITATION PROGRAM. IF PLACED ON
A. 2808 7
LEAVE STATUS WITHOUT PAY, THE EMPLOYEE SHALL BE PERMITTED TO USE ANY
ACCUMULATED LEAVE CREDITS PRIOR TO BEING PLACED ON LEAVE WITHOUT PAY.
(O) UPON SUCCESSFUL COMPLETION OF AN EMPLOYEE ASSISTANCE PROGRAM OR AN
ALCOHOL AND DRUG REHABILITATION PROGRAM, THE EMPLOYEE SHALL BE REIN-
STATED TO THE SAME OR EQUIVALENT POSITION THAT WAS HELD PRIOR TO SUCH
REHABILITATION.
(P) NO EMPLOYER MAY DISCHARGE, DISCIPLINE, OR DISCRIMINATE AGAINST AN
EMPLOYEE, OR REFUSE TO HIRE A JOB APPLICANT, ON THE BASIS OF ANY PRIOR
MEDICAL HISTORY REVEALED TO THE EMPLOYER PURSUANT TO THIS TITLE.
(Q) AN EMPLOYER WHO PERFORMS DRUG TESTING OR SPECIMEN COLLECTION SHALL
USE CHAIN OF CUSTODY PROCEDURES AS ESTABLISHED BY THE OFFICE OF ALCOHOL-
ISM AND SUBSTANCE ABUSE SERVICES TO ENSURE PROPER RECORDKEEPING, HANDL-
ING, LABELING, AND IDENTIFICATION OF ALL SPECIMENS TO BE TESTED.
(R) AN EMPLOYER SHALL PAY THE COST OF ALL DRUG TESTS, INITIAL AND
CONFIRMATION, WHICH HE REQUIRES OF EMPLOYEES.
(S) AN EMPLOYEE OR JOB APPLICANT SHALL PAY THE COSTS OF ANY ADDITIONAL
DRUG TESTS NOT REQUIRED BY THE EMPLOYER.
(T) NO EMPLOYER SHALL DISCHARGE, DISCIPLINE, OR DISCRIMINATE AGAINST
AN EMPLOYEE SOLELY UPON VOLUNTARILY SEEKING TREATMENT, WHILE UNDER THE
EMPLOY OF THE EMPLOYER, FOR A DRUG-RELATED PROBLEM IF THE EMPLOYEE HAS
NOT PREVIOUSLY TESTED POSITIVE FOR DRUG USE, ENTERED AN EMPLOYEE ASSIST-
ANCE PROGRAM FOR DRUG-RELATED PROBLEMS, OR ENTERED AN ALCOHOL AND DRUG
REHABILITATION PROGRAM.
(U) WHERE TESTING IS CONDUCTED BASED ON REASONABLE SUSPICION, EACH
EMPLOYER SHALL PROMPTLY DETAIL IN WRITING THE CIRCUMSTANCES WHICH FORMED
THE BASIS OF THE DETERMINATION THAT REASONABLE SUSPICION EXISTED TO
WARRANT THE TESTING. A COPY OF THIS DOCUMENTATION SHALL BE GIVEN TO THE
EMPLOYEE UPON REQUEST AND THE ORIGINAL DOCUMENTATION SHALL BE KEPT
CONFIDENTIAL BY THE EMPLOYER PURSUANT TO SECTION EIGHTY-FOUR-J OF THIS
TITLE AND RETAINED BY THE EMPLOYER FOR AT LEAST ONE YEAR.
(V) IF AN EMPLOYEE IS UNABLE TO PARTICIPATE IN OUTPATIENT REHABILI-
TATION, THE EMPLOYEE MAY BE PLACED ON LEAVE STATUS WHILE PARTICIPATING
IN AN EMPLOYEE ASSISTANCE PROGRAM OR AN ALCOHOL AND DRUG REHABILITATION
PROGRAM. IF PLACED ON LEAVE WITHOUT PAY STATUS, THE EMPLOYEE SHALL BE
PERMITTED TO USE ANY ACCUMULATED LEAVE CREDITS PRIOR TO BEING PLACED ON
LEAVE WITHOUT PAY. UPON SUCCESSFUL COMPLETION OF AN EMPLOYEE ASSISTANCE
PROGRAM OR AN ALCOHOL AND DRUG REHABILITATION PROGRAM, THE EMPLOYEE
SHALL BE REINSTATED TO THE SAME OR EQUIVALENT POSITION THAT WAS HELD
PRIOR TO SUCH REHABILITATION.
S 84-H. CONFIRMATION TESTING. (A) IF AN INITIAL DRUG TEST IS NEGA-
TIVE, THE EMPLOYER MAY IN ITS SOLE DISCRETION AND AT THE EMPLOYER'S
EXPENSE SEEK A CONFIRMATION TEST.
(B) ONLY LICENSED LABORATORIES AS DESCRIBED IN SECTION EIGHTY-FOUR-K
OF THIS TITLE SHALL CONDUCT CONFIRMATION DRUG TESTS.
(C) ALL POSITIVE INITIAL TESTS SHALL BE CONFIRMED USING GAS
CHROMATOGRAPHY/MASS SPECTROMETRY (GC/MS) OR AN EQUIVALENT OR MORE ACCU-
RATE SCIENTIFICALLY ACCEPTED METHOD APPROVED BY THE OFFICE OF ALCOHOLISM
AND SUBSTANCE ABUSE SERVICES AS SUCH TECHNOLOGY BECOMES AVAILABLE IN A
COST EFFECTIVE FORM.
S 84-I. EMPLOYEE PROTECTION. (A) NO EMPLOYEE OR JOB APPLICANT WHOSE
DRUG TEST RESULT IS CONFIRMED AS POSITIVE IN ACCORDANCE WITH THE
PROVISIONS OF THIS TITLE SHALL, BY VIRTUE OF THE RESULT ALONE BE DEFINED
AS A PERSON WITH A DISABILITY.
(B) AN EMPLOYER WHO DISCHARGES OR DISCIPLINES AN EMPLOYEE OR REFUSES
TO HIRE A JOB APPLICANT IN COMPLIANCE WITH THIS TITLE SHALL BE CONSID-
ERED TO HAVE DISCHARGED, DISCIPLINED, OR REFUSED TO HIRE FOR CAUSE.
A. 2808 8
(C) NO PHYSICIAN-PATIENT RELATIONSHIP IS CREATED BETWEEN AN EMPLOYEE
OR JOB APPLICANT AND AN EMPLOYER OR ANY PERSON PERFORMING OR EVALUATING
A DRUG TEST, SOLELY BY THE ESTABLISHMENT, IMPLEMENTATION, OR ADMINIS-
TRATION OF A DRUG TESTING PROGRAM.
(D) NOTHING IN THIS TITLE SHALL BE CONSTRUED TO PREVENT AN EMPLOYER
FROM ESTABLISHING REASONABLE WORK RULES RELATED TO EMPLOYEE POSSESSION,
USE, SALE, OR SOLICITATION OF DRUGS, INCLUDING CONVICTIONS FOR DRUG-RE-
LATED OFFENSES, AND TAKING ACTION BASED UPON A VIOLATION OF ANY OF THOSE
RULES.
(E) NOTHING IN THIS TITLE SHALL BE CONSTRUED TO OPERATE RETROACTIVELY,
AND NOTHING IN THIS TITLE SHALL ABROGATE THE RIGHT OF AN EMPLOYER UNDER
STATE LAW TO CONDUCT DRUG TESTS PRIOR TO JANUARY FIRST, TWO THOUSAND
TEN. A DRUG TEST CONDUCTED BY AN EMPLOYER PRIOR TO JANUARY FIRST, TWO
THOUSAND TEN IS NOT SUBJECT TO THIS TITLE.
(F) IF AN EMPLOYEE OR JOB APPLICANT REFUSES TO SUBMIT TO A DRUG TEST,
THE EMPLOYER SHALL NOT BE BARRED FROM DISCHARGING OR DISCIPLINING THE
EMPLOYEE, OR FROM REFUSING TO HIRE THE JOB APPLICANT. HOWEVER, NOTHING
IN THIS SUBDIVISION SHALL ABROGATE THE RIGHTS AND REMEDIES OF THE
EMPLOYEE OR JOB APPLICANT AS OTHERWISE PROVIDED IN THIS TITLE.
(G) AN EMPLOYER WHO REFUSES TO HIRE A JOB APPLICANT BASED ON A POSI-
TIVE CONFIRMED DRUG TEST RESULT SHALL NOT BE REQUIRED TO HOLD THE
EMPLOYMENT POSITION VACANT WHILE THE JOB APPLICANT PURSUES ADMINISTRA-
TIVE ACTION. HOWEVER, SHOULD THE JOB APPLICANT PREVAIL IN HIS OR HER
ACTIONS, THE EMPLOYER SHALL PROVIDE HIM OR HER THE OPPORTUNITY OF
EMPLOYMENT IN THE NEXT AVAILABLE COMPARABLE POSITION.
(H) AN EMPLOYER SHALL REFER AN EMPLOYEE WITH A FIRST TIME POSITIVE
CONFIRMED DRUG TEST RESULT TO AN EMPLOYEE ASSISTANCE PROGRAM OR AN ALCO-
HOL AND DRUG REHABILITATION PROGRAM. IF THE RESULTS OF A SUBSEQUENT
CONFIRMED DRUG TEST ARE POSITIVE, THE EMPLOYER MAY DISCHARGE OR DISCI-
PLINE THE EMPLOYEE.
(I) NOTHING IN THIS TITLE SHALL BE CONSTRUED TO PROHIBIT AN EMPLOYER
FROM CONDUCTING MEDICAL SCREENING OR OTHER TESTS REQUIRED BY ANY STAT-
UTE, RULE, OR REGULATION FOR THE PURPOSE OF MONITORING EXPOSURE OF
EMPLOYEES TO TOXIC OR OTHER UNHEALTHY SUBSTANCES IN THE WORKPLACE OR IN
THE PERFORMANCE OF JOB RESPONSIBILITIES. SUCH SCREENING OR TESTS SHALL
BE LIMITED TO THE SPECIFIC SUBSTANCES EXPRESSLY IDENTIFIED IN THE APPLI-
CABLE STATUTE, RULE, OR REGULATION, UNLESS PRIOR WRITTEN CONSENT OF THE
EMPLOYEE IS OBTAINED FOR OTHER TESTS.
(J) AN EMPLOYER SHALL PLACE A SAFETY SENSITIVE POSITION EMPLOYEE WHOSE
DRUG TEST RESULT IS CONFIRMED POSITIVE IN A NON SAFETY SENSITIVE POSI-
TION, OR IF SUCH A POSITION IS UNAVAILABLE, ON LEAVE STATUS WHILE THE
EMPLOYEE PARTICIPATES IN AN EMPLOYEE ASSISTANCE PROGRAM OR AN ALCOHOL
AND DRUG REHABILITATION PROGRAM. IF PLACED ON LEAVE STATUS WITHOUT PAY,
THE EMPLOYEE SHALL BE PERMITTED TO USE ANY ACCUMULATED LEAVE CREDITS
PRIOR TO BEING PLACED ON LEAVE WITHOUT PAY.
S 84-J. CONFIDENTIALITY. (A) ALL INFORMATION, INTERVIEWS, REPORTS,
STATEMENTS, MEMORANDA, AND DRUG TEST RESULTS, WRITTEN OR OTHERWISE,
RECEIVED BY THE EMPLOYER THROUGH A DRUG TESTING PROGRAM ARE CONFIDENTIAL
COMMUNICATIONS AND MAY NOT BE USED OR RECEIVED IN EVIDENCE, OBTAINED IN
DISCOVERY, OR DISCLOSED IN ANY PUBLIC OR PRIVATE PROCEEDINGS, EXCEPT IN
ACCORDANCE WITH THIS TITLE.
(B) EMPLOYERS, LABORATORIES, EMPLOYEE ASSISTANCE PROGRAMS, DRUG AND
ALCOHOL REHABILITATION PROGRAMS, AND THEIR AGENTS WHO RECEIVE OR HAVE
ACCESS TO INFORMATION CONCERNING DRUG TEST RESULTS SHALL KEEP ALL INFOR-
MATION CONFIDENTIAL. RELEASE OF SUCH INFORMATION UNDER ANY OTHER CIRCUM-
STANCE SHALL BE SOLELY PURSUANT TO A WRITTEN CONSENT FORM SIGNED VOLUN-
A. 2808 9
TARILY BY THE PERSON TESTED, EXCEPT WHERE SUCH RELEASE IS COMPELLED BY A
HEARING OFFICER OR A COURT OF COMPETENT JURISDICTION PURSUANT TO AN
APPEAL TAKEN UNDER THIS TITLE, OR WHERE DEEMED APPROPRIATE BY A PROFES-
SIONAL OR OCCUPATIONAL LICENSING BOARD IN A RELATED DISCIPLINARY
PROCEEDING. THE CONSENT FORM MUST CONTAIN, AT A MINIMUM:
1. THE NAME OF THE PERSON WHO IS AUTHORIZED TO OBTAIN THE INFORMATION.
2. THE PURPOSE OF THE DISCLOSURE.
3. THE PRECISE INFORMATION TO BE DISCLOSED.
4. THE DURATION OF THE CONSENT.
5. THE SIGNATURE OF THE PERSON AUTHORIZING RELEASE OF THE INFORMATION.
(C) INFORMATION ON DRUG TEST RESULTS SHALL NOT BE RELEASED OR USED IN
ANY CRIMINAL PROCEEDING AGAINST THE EMPLOYEE OR JOB APPLICANT. INFORMA-
TION RELEASED CONTRARY TO THIS SECTION SHALL BE INADMISSIBLE AS EVIDENCE
IN ANY SUCH CRIMINAL PROCEEDING.
(D) NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT CERTIFYING BODIES OF
SPECIAL RISK EMPLOYEES FROM RECEIVING INFORMATION ON POSITIVE CONFIRMED
DRUG TEST RESULTS FOR THE PURPOSE OF REVIEWING CERTIFICATION.
(E) NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT THE EMPLOYER, AGENT
OF THE EMPLOYER, OR LABORATORY CONDUCTING A DRUG TEST FROM HAVING ACCESS
TO EMPLOYEE DRUG TEST INFORMATION WHEN CONSULTING WITH LEGAL COUNSEL IN
CONNECTION WITH ACTIONS BROUGHT UNDER OR RELATED TO THIS SECTION OR
WHERE THE INFORMATION IS RELEVANT TO ITS DEFENSE IN A CIVIL OR ADMINIS-
TRATIVE MATTER.
S 84-K. DRUG TESTING STANDARDS; LABORATORIES. (A) NO LABORATORY MAY
ANALYZE INITIAL OR CONFIRMATION DRUG SPECIMENS UNLESS:
1. THE LABORATORY IS LICENSED AND APPROVED BY THE OFFICE OF ALCOHOLISM
AND SUBSTANCE ABUSE SERVICES USING CRITERIA ESTABLISHED BY THE NATIONAL
INSTITUTE ON DRUG ABUSE AS GUIDELINES FOR MODELING THE STATE DRUG TEST-
ING PROGRAM.
2. THE LABORATORY HAS WRITTEN PROCEDURES TO ENSURE CHAIN OF CUSTODY.
3. THE LABORATORY FOLLOWS PROPER QUALITY CONTROL PROCEDURES, INCLUD-
ING, BUT NOT LIMITED TO:
(I) THE USE OF INTERNAL QUALITY CONTROLS INCLUDING THE USE OF SAMPLES
OF KNOWN CONCENTRATIONS WHICH ARE USED TO CHECK THE PERFORMANCE AND
CALIBRATION OF TESTING EQUIPMENT, AND PERIODIC USE OF BLIND SAMPLES FOR
OVERALL ACCURACY.
(II) AN INTERNAL REVIEW AND CERTIFICATION PROCESS FOR DRUG TEST
RESULTS, CONDUCTED BY A PERSON QUALIFIED TO PERFORM THAT FUNCTION IN THE
TESTING LABORATORY.
(III) SECURITY MEASURES IMPLEMENTED BY THE TESTING LABORATORY TO
PRECLUDE ADULTERATION OF SPECIMENS AND DRUG TEST RESULTS.
(IV) OTHER NECESSARY AND PROPER ACTIONS TAKEN TO ENSURE RELIABLE AND
ACCURATE DRUG TEST RESULTS.
(B) A LABORATORY SHALL DISCLOSE TO THE EMPLOYER A WRITTEN TEST RESULT
REPORT WITHIN SEVEN WORKING DAYS AFTER RECEIPT OF THE SAMPLE. ALL LABO-
RATORY REPORTS OF A DRUG TEST RESULT SHALL, AT A MINIMUM, STATE:
1. THE NAME AND ADDRESS OF THE LABORATORY WHICH PERFORMED THE TEST AND
THE POSITIVE IDENTIFICATION OF THE PERSON TESTED.
2. POSITIVE RESULTS ON CONFIRMATION TESTS ONLY, OR NEGATIVE RESULTS,
AS APPLICABLE.
3. A LIST OF THE DRUGS FOR WHICH THE DRUG ANALYSES WERE CONDUCTED.
4. THE TYPE OF TESTS CONDUCTED FOR BOTH INITIAL AND CONFIRMATION TESTS
AND THE MINIMUM CUT OFF LEVELS OF THE TESTS.
5. ANY CORRELATION BETWEEN MEDICATION REPORTED BY THE EMPLOYEE OR JOB
APPLICANT PURSUANT TO PARAGRAPH TWO OF SUBDIVISION (B) OF SECTION EIGHT-
Y-FOUR-G OF THIS TITLE AND A POSITIVE CONFIRMED DRUG TEST RESULT.
A. 2808 10
NO REPORT SHALL DISCLOSE THE PRESENCE OR ABSENCE OF ANY DRUG OTHER
THAN A SPECIFIC DRUG AND ITS METABOLITES LISTED PURSUANT TO THIS TITLE.
(C) THE LABORATORY SHALL SUBMIT TO THE OFFICE OF ALCOHOLISM AND
SUBSTANCE ABUSE SERVICES A MONTHLY REPORT WITH STATISTICAL INFORMATION
REGARDING THE TESTING OF EMPLOYEES AND JOB APPLICANTS. THE REPORTS SHALL
INCLUDE INFORMATION ON THE METHODS OF ANALYSES CONDUCTED, THE DRUGS
TESTED FOR, THE NUMBER OF POSITIVE AND NEGATIVE RESULTS FOR BOTH INITIAL
AND CONFIRMATION TESTS, AND ANY OTHER INFORMATION DEEMED APPROPRIATE BY
THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES. NO MONTHLY REPORT
SHALL IDENTIFY SPECIFIC EMPLOYEES OR JOB APPLICANTS.
(D) LABORATORIES SHALL PROVIDE TECHNICAL ASSISTANCE TO THE EMPLOYER,
EMPLOYEE, OR JOB APPLICANT FOR THE PURPOSE OF INTERPRETING ANY POSITIVE
CONFIRMED TEST RESULTS WHICH COULD HAVE BEEN CAUSED BY PRESCRIPTION OR
NONPRESCRIPTION MEDICATION TAKEN BY THE EMPLOYEE OR JOB APPLICANT.
S 84-L. RULES. (A) THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES IS HEREBY AUTHORIZED TO PROMULGATE RULES, USING CRITERIA ESTAB-
LISHED BY THE NATIONAL INSTITUTE ON DRUG ABUSE AS GUIDELINES FOR MODEL-
ING THE STATE DRUG TESTING PROGRAM, CONCERNING, BUT NOT LIMITED TO:
1. STANDARDS FOR DRUG TESTING LABORATORY LICENSING, SUSPENSION, AND
REVOCATION OF A LICENSE.
2. BODY SPECIMENS AND MINIMUM SPECIMEN AMOUNTS WHICH ARE APPROPRIATE
FOR DRUG TESTING.
3. METHODS OF ANALYSIS AND PROCEDURES TO ENSURE RELIABLE DRUG TESTING
RESULTS, INCLUDING STANDARDS FOR INITIAL TESTS AND CONFIRMATION TESTS.
4. MINIMUM CUT OFF DETECTION LEVELS FOR DRUGS OR THEIR METABOLITES FOR
THE PURPOSES OF DETERMINING A POSITIVE TEST RESULT.
5. CHAIN OF CUSTODY PROCEDURES TO ENSURE PROPER IDENTIFICATION, LABEL-
ING, AND HANDLING OF SPECIMENS BEING TESTED.
6. RETENTION, STORAGE, AND TRANSPORTATION PROCEDURES TO ENSURE RELI-
ABLE RESULTS ON CONFIRMATION TESTS AND RETESTS.
7. A LIST OF THE MOST COMMON MEDICATIONS BY BRAND NAME OR COMMON NAME,
AS APPLICABLE, AS WELL AS BY CHEMICAL NAME, WHICH MAY ALTER OR AFFECT A
DRUG TEST.
(B) THIS TITLE SHALL NOT BE CONSTRUED TO ELIMINATE THE BARGAINABLE
RIGHTS AS PROVIDED IN THE COLLECTIVE BARGAINING PROCESS WHERE APPLICA-
BLE.
S 84-M. DISCIPLINE REMEDIES. (A) AN EXECUTIVE BRANCH EMPLOYEE WHO IS
DISCIPLINED OR WHO IS A JOB APPLICANT FOR ANOTHER POSITION AND IS NOT
HIRED PURSUANT TO THIS TITLE, MAY FILE AN APPEAL WITH THE APPROPRIATE
AGENCY. ANY APPEAL MUST BE FILED WITHIN THIRTY CALENDAR DAYS OF RECEIPT
BY THE EMPLOYEE OR JOB APPLICANT OF NOTICE OF DISCIPLINE OR REFUSAL TO
HIRE. THE NOTICE SHALL INFORM THE EMPLOYEE OR JOB APPLICANT OF THE RIGHT
TO FILE AN APPEAL, OR IF AVAILABLE, THE RIGHT TO FILE A COLLECTIVE
BARGAINING GRIEVANCE. A HEARING ON THE APPEAL SHALL BE CONDUCTED WITHIN
THIRTY DAYS OF THE FILING OF THE APPEAL, UNLESS AN EXTENSION IS
REQUESTED BY THE EMPLOYEE OR JOB APPLICANT AND GRANTED BY THE APPROPRI-
ATE AGENCY OR AN ARBITRATOR.
(B) THE APPROPRIATE AGENCY SHALL PROMULGATE RULES CONCERNING THE
RECEIPT, PROCESSING, AND RESOLUTION OF APPEALS FILED PURSUANT TO THIS
TITLE.
(C) APPEALS TO THE APPROPRIATE AGENCY SHALL BE THE EXCLUSIVE ADMINIS-
TRATIVE REMEDY FOR ANY EMPLOYEE WHO IS DISCIPLINED OR ANY JOB APPLICANT
WHO IS NOT HIRED PURSUANT TO THIS TITLE. HOWEVER, NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF AN EMPLOYEE OR JOB APPLICANT TO FILE A
COLLECTIVE BARGAINING GRIEVANCE PROVIDED THAT AN EMPLOYEE OR JOB APPLI-
CANT MAY NOT FILE BOTH AN APPEAL AND A GRIEVANCE.
A. 2808 11
(D) AN EMPLOYEE OR A JOB APPLICANT WHO HAS BEEN DISCIPLINED OR WHO HAS
NOT BEEN HIRED PURSUANT TO THIS TITLE MUST EXHAUST EITHER THE ADMINIS-
TRATIVE APPEAL PROCESS OR COLLECTIVE BARGAINING GRIEVANCE-ARBITRATION
PROCESS.
(E) UPON RESOLVING AN APPEAL FILED PURSUANT TO SUBDIVISION (C) OF THIS
SECTION, AND FINDING A VIOLATION OF THIS TITLE, THE APPROPRIATE AGENCY
MAY ORDER THE FOLLOWING RELIEF:
1. RESCIND THE DISCIPLINARY ACTION, EXPUNGE RELATED RECORDS FROM THE
PERSONNEL FILE OF THE EMPLOYEE OR JOB APPLICANT AND REINSTATE THE
EMPLOYEE.
2. ORDER COMPLIANCE WITH SUBDIVISION (G) OF SECTION EIGHTY-FOUR-I OF
THIS TITLE.
3. AWARD BACK PAY AND BENEFITS.
4. AWARD THE PREVAILING EMPLOYEE OR JOB APPLICANT THE NECESSARY COSTS
OF THE APPEAL, REASONABLE ATTORNEY'S FEES, AND EXPERT WITNESS FEES.
S 84-N. NONDISCIPLINE REMEDIES. (A) ANY PERSON ALLEGING A VIOLATION OF
THE PROVISIONS OF THIS TITLE, THAT IS NOT REMEDIABLE BY THE APPROPRIATE
AGENCY OR AN ARBITRATOR PURSUANT TO SECTION EIGHTY-FOUR-M OF THIS TITLE,
MUST INSTITUTE A CIVIL ACTION FOR INJUNCTIVE RELIEF OR DAMAGES, OR BOTH,
IN A COURT OF COMPETENT JURISDICTION WITHIN ONE HUNDRED EIGHTY DAYS OF
THE ALLEGED VIOLATION, OR BE BARRED FROM OBTAINING THE FOLLOWING RELIEF.
RELIEF IS LIMITED TO:
1. AN ORDER RESTRAINING THE CONTINUED VIOLATION OF THIS TITLE.
2. AN AWARD OF THE COSTS OF LITIGATION, EXPERT WITNESS FEES, REASON-
ABLE ATTORNEY'S FEES, AND NONECONOMIC DAMAGES PROVIDED THAT DAMAGES
SHALL BE LIMITED TO THE RECOVERY OF DAMAGES DIRECTLY RESULTING FROM
INJURY OR LOSS CAUSED BY EACH VIOLATION OF THIS TITLE.
(B) ANY EMPLOYER WHO COMPLIES WITH THE PROVISIONS OF THIS TITLE SHALL
BE WITHOUT LIABILITY FOR ALL CIVIL ACTIONS ARISING FROM ANY DRUG TESTING
PROGRAM OR PROCEDURE PERFORMED IN COMPLIANCE WITH THIS TITLE.
(C) PURSUANT TO ANY CLAIM ALLEGING A VIOLATION OF THIS TITLE, INCLUD-
ING A CLAIM UNDER THIS TITLE WHERE IT IS ALLEGED THAT AN EMPLOYER'S
ACTION WITH RESPECT TO A PERSON WAS BASED ON AN INCORRECT TEST RESULT,
THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE TEST WAS VALID IF THE
EMPLOYER COMPLIED WITH THE PROVISIONS OF THIS TITLE.
(D) NO CAUSE OF ACTION SHALL ARISE IN FAVOR OF ANY PERSON BASED UPON
THE FAILURE OF AN EMPLOYER TO ESTABLISH A PROGRAM OR POLICY FOR DRUG
TESTING.
S 84-O. FEDERAL COMPLIANCE. THE DRUG TESTING PROCEDURES PROVIDED IN
THIS TITLE DO NOT APPLY WHERE THE SPECIFIC WORK PERFORMED REQUIRES
EMPLOYEES OR JOB APPLICANTS TO BE SUBJECT TO DRUG TESTING PURSUANT TO:
(A) FEDERAL REGULATIONS THAT SPECIFICALLY PREEMPT STATE AND LOCAL
REGULATION OF DRUG TESTING WITH RESPECT TO SUCH EMPLOYEES AND JOB APPLI-
CANTS;
(B) FEDERAL REGULATIONS OR REQUIREMENTS ENACTED OR IMPLEMENTED IN
CONNECTION WITH THE OPERATION OF FEDERALLY REGULATED FACILITIES;
(C) FEDERAL CONTRACTS WHERE THE DRUG TESTING IS CONDUCTED FOR SAFETY,
OR PROTECTION OF SENSITIVE OR PROPRIETARY DATA OR NATIONAL SECURITY; OR
(D) STATE AGENCY RULES THAT ADOPT FEDERAL REGULATIONS APPLICABLE TO
THE INTERSTATE COMPONENT OF A FEDERALLY REGULATED ACTIVITY.
S 84-P. LICENSE FEE. FEES FROM LICENSURE OF DRUG TESTING LABORATORIES
SHALL BE SUFFICIENT TO CARRY OUT THE RESPONSIBILITIES OF THE DEPARTMENT
FOR THE REGULATION OF DRUG TESTING LABORATORIES. THE DEPARTMENT SHALL
COLLECT FEES FOR ALL LICENSES ISSUED UNDER THIS TITLE. THE FEE SCHEDULE
FOR FISCAL YEAR TWO THOUSAND NINE--TWO THOUSAND TEN SHALL NOT EXCEED THE
MAXIMUM FEES PROVIDED HEREIN AND SUCH SCHEDULE ADOPTED BY THE RULE BY
A. 2808 12
THE DEPARTMENT PURSUANT TO THIS TITLE. EACH NONREFUNDABLE FEE SHALL BE
DUE AT THE TIME OF APPLICATION AND SHALL BE PAYABLE TO THE DEPARTMENT TO
BE DEPOSITED IN A TRUST FUND ADMINISTERED BY THE DEPARTMENT AND USED
ONLY FOR THE PURPOSES OF THIS TITLE. THE FEE SCHEDULE IS AS FOLLOWS: FOR
LICENSURE AS A DRUG TESTING LABORATORY, AN ANNUAL FEE OF NOT LESS THAN
EIGHT THOUSAND DOLLARS OR MORE THAN TEN THOUSAND DOLLARS PER FISCAL
YEAR; FOR LATE FILING OF AN APPLICATION FOR RENEWAL, AN ADDITIONAL FEE
OF FIVE HUNDRED DOLLARS PER DAY SHALL BE CHARGED.
S 2. The labor law is amended by adding a new article 15-A to read as
follows:
ARTICLE 15-A
DRUG-FREE WORKPLACE PROGRAM
SECTION 440. LEGISLATIVE INTENT; DRUG-FREE WORKPLACES.
441. DRUG-FREE WORKPLACE PROGRAM REQUIREMENTS.
442. PREFERENCE TO BUSINESSES WITH DRUG-FREE WORKPLACE PROGRAMS.
S 440. LEGISLATIVE INTENT; DRUG-FREE WORKPLACES. IT IS THE INTENT OF
THE LEGISLATURE TO PROMOTE DRUG-FREE WORKPLACES IN ORDER THAT EMPLOYERS
IN THE STATE BE AFFORDED THE OPPORTUNITY TO MAXIMIZE THEIR LEVELS OF
PRODUCTIVITY, ENHANCE THEIR COMPETITIVE POSITIONS IN THE MARKETPLACE,
AND REACH THEIR DESIRED LEVELS OF SUCCESS WITHOUT EXPERIENCING THE
COSTS, DELAYS, AND TRAGEDIES ASSOCIATED WITH WORK-RELATED ACCIDENTS
RESULTING FROM DRUG ABUSE BY EMPLOYEES. IT IS FURTHER THE INTENT OF THE
LEGISLATURE THAT DRUG ABUSE BE DISCOURAGED AND THAT EMPLOYEES WHO CHOOSE
TO ENGAGE IN DRUG ABUSE FACE THE RISK OF UNEMPLOYMENT AND THE FORFEITURE
OF WORKERS' COMPENSATION BENEFITS. IF AN EMPLOYER IMPLEMENTS A DRUG-FREE
WORKPLACE PROGRAM WHICH INCLUDES NOTICE, EDUCATION, AND TESTING FOR
DRUGS AND ALCOHOL PURSUANT TO RULES DEVELOPED BY THE DEPARTMENT, THE
EMPLOYER MAY REQUIRE THE EMPLOYEE TO SUBMIT TO A TEST FOR THE PRESENCE
OF DRUGS AND ALCOHOL AND, IF A DRUG OR ALCOHOL IS FOUND TO BE PRESENT IN
THE EMPLOYEE'S SYSTEM AT A LEVEL PRESCRIBED BY RULE ADOPTED PURSUANT TO
THIS ARTICLE, THE EMPLOYEE MAY BE TERMINATED AND SHALL FORFEIT HIS
ELIGIBILITY FOR MEDICAL AND INDEMNITY BENEFITS UPON EXHAUSTION OF THE
PROCEDURES PRESCRIBED IN THIS ARTICLE. HOWEVER, A DRUG-FREE WORKPLACE
PROGRAM SHALL REQUIRE THE EMPLOYER TO NOTIFY ALL EMPLOYEES THAT IT IS A
CONDITION OF EMPLOYMENT TO REFRAIN FROM TAKING DRUGS ON OR OFF THE JOB
AND IF THE INJURED WORKER REFUSES TO SUBMIT TO A TEST FOR DRUGS OR ALCO-
HOL, HE FORFEITS HIS ELIGIBILITY FOR MEDICAL AND INDEMNITY BENEFITS.
S 441. DRUG-FREE WORKPLACE PROGRAM REQUIREMENTS. THE FOLLOWING SHALL
APPLY TO A DRUG-FREE WORKPLACE PROGRAM IMPLEMENTED PURSUANT TO RULES
ADOPTED BY THE DEPARTMENT:
1. DEFINITIONS. EXCEPT WHERE THE CONTEXT OTHERWISE REQUIRES, AS USED
IN THIS ARTICLE:
A. "DRUG" MEANS ALCOHOL, INCLUDING DISTILLED SPIRITS, WINE, MALT
BEVERAGES, AND INTOXICATING LIQUORS; AMPHETAMINES; CANNABINOIDS;
COCAINE; PHENCYCLIDINE (PCP); HALLUCINOGENS; METHAQUALONE; OPIATES;
BARBITURATES; BENZODIAZEPHINES; SYNTHETIC NARCOTICS; DESIGNER DRUGS; OR
A METABOLITE OF ANY OF THE SUBSTANCES LISTED HEREIN.
B. "DRUG TEST" OR "TEST" MEANS ANY CHEMICAL, BIOLOGICAL, OR PHYSICAL
INSTRUMENTAL ANALYSIS ADMINISTERED FOR THE PURPOSE OF DETERMINING THE
PRESENCE OR ABSENCE OF A DRUG OR ITS METABOLITES.
C. "INITIAL DRUG TEST" MEANS A SENSITIVE, RAPID, AND RELIABLE PROCE-
DURE TO IDENTIFY NEGATIVE AND PRESUMPTIVE POSITIVE SPECIMENS. ALL
INITIAL TESTS SHALL USE AN IMMUNOASSAY PROCEDURE OR AN EQUIVALENT, OR
SHALL USE A MORE ACCURATE SCIENTIFICALLY ACCEPTED METHOD APPROVED BY THE
OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES AS SUCH MORE ACCURATE
TECHNOLOGY BECOMES AVAILABLE IN A COST-EFFECTIVE FORM.
A. 2808 13
D. "CONFIRMATION TESTS", "CONFIRMED TEST", OR "CONFIRMED DRUG TEST"
MEANS A SECOND ANALYTICAL PROCEDURE USED TO IDENTIFY THE PRESENCE OF A
SPECIFIC DRUG OR METABOLITE IN A SPECIMEN. THE CONFIRMATION TEST MUST BE
DIFFERENT IN SCIENTIFIC PRINCIPLE FROM THAT OF THE INITIAL TEST PROCE-
DURE. THIS CONFIRMATION METHOD MUST BE CAPABLE OF PROVIDING REQUISITE
SPECIFICITY, SENSITIVITY, AND QUANTITATIVE ACCURACY.
E. "CHAIN OF CUSTODY" REFERS TO THE METHODOLOGY OF TRACKING SPECIFIED
MATERIALS OR SUBSTANCES FOR THE PURPOSE OF MAINTAINING CONTROL AND
ACCOUNTABILITY FROM INITIAL COLLECTION TO FINAL DISPOSITION FOR ALL SUCH
MATERIALS OR SUBSTANCES AND PROVIDING FOR ACCOUNTABILITY AT EACH STAGE
IN HANDLING, TESTING, AND STORING SPECIMENS AND REPORTING TEST RESULTS.
F. "JOB APPLICANT" MEANS A PERSON WHO HAS APPLIED FOR A POSITION WITH
AN EMPLOYER AND HAS BEEN OFFERED EMPLOYMENT CONDITIONED UPON SUCCESSFUL-
LY PASSING A DRUG TEST.
G. "EMPLOYEE" MEANS ANY PERSON WHO WORKS FOR SALARY, WAGES, OR OTHER
REMUNERATION FOR AN EMPLOYER.
H. "EMPLOYER" MEANS A PERSON OR ENTITY THAT EMPLOYS A PERSON AND THAT
IS COVERED BY THE WORKERS' COMPENSATION LAW.
I. "PRESCRIPTION OR NONPRESCRIPTION MEDICATION" MEANS A DRUG OR MEDI-
CATION OBTAINED PURSUANT TO A PRESCRIPTION OR A MEDICATION THAT IS
AUTHORIZED PURSUANT TO FEDERAL OR STATE LAW FOR GENERAL DISTRIBUTION AND
USE WITHOUT A PRESCRIPTION IN THE TREATMENT OF HUMAN DISEASES, AILMENTS,
OR INJURIES.
J. "REASONABLE SUSPICION DRUG TESTING" MEANS DRUG TESTING BASED ON A
BELIEF THAT AN EMPLOYEE IS USING OR HAS USED DRUGS IN VIOLATION OF THE
EMPLOYER'S POLICY DRAWN FROM SPECIFIC OBJECTIVE AND ARTICULABLE FACTS
AND REASONABLE INFERENCES DRAWN FROM THOSE FACTS IN LIGHT OF EXPERIENCE.
AMONG OTHER THINGS, SUCH FACTS AND INFERENCES MAY BE BASED UPON:
(1) OBSERVABLE PHENOMENA WHILE AT WORK, SUCH AS DIRECT OBSERVATION OF
DRUG USE OR OF THE PHYSICAL SYMPTOMS OR MANIFESTATIONS OF BEING UNDER
THE INFLUENCE OF A DRUG.
(2) ABNORMAL CONDUCT OR ERRATIC BEHAVIOR WHILE AT WORK OR A SIGNIF-
ICANT DETERIORATION IN WORK PERFORMANCE.
(3) A REPORT OF DRUG USE, PROVIDED BY A RELIABLE AND CREDIBLE SOURCE,
WHICH HAS BEEN INDEPENDENTLY CORROBORATED.
(4) EVIDENCE THAT AN INDIVIDUAL HAS TAMPERED WITH A DRUG TEST DURING
HIS EMPLOYMENT WITH THE CURRENT EMPLOYER.
(5) INFORMATION THAT AN EMPLOYEE HAS CAUSED, OR CONTRIBUTED TO, AN
ACCIDENT WHILE AT WORK.
(6) EVIDENCE THAT AN EMPLOYEE HAS USED, POSSESSED, SOLD, SOLICITED, OR
TRANSFERRED DRUGS WHILE WORKING OR WHILE ON THE EMPLOYER'S PREMISES OR
WHILE OPERATING THE EMPLOYER'S VEHICLE, MACHINERY, OR EQUIPMENT.
K. "SPECIMEN" MEANS TISSUE, HAIR, OR PRODUCT OF THE HUMAN BODY CAPABLE
OF REVEALING THE PRESENCE OF DRUGS OR THEIR METABOLITES.
L. "EMPLOYEE ASSISTANCE PROGRAM" MEANS AN ESTABLISHED PROGRAM FOR
EMPLOYEE ASSESSMENT, COUNSELING, AND POSSIBLE REFERRAL TO AN ALCOHOL AND
DRUG REHABILITATION PROGRAM.
2. DRUG TESTING. ALL DRUG TESTING CONDUCTED BY EMPLOYERS SHALL BE IN
CONFORMITY WITH THE STANDARDS ESTABLISHED IN THIS SECTION AND ALL APPLI-
CABLE RULES ADOPTED PURSUANT TO THIS SECTION. HOWEVER, EMPLOYERS SHALL
NOT HAVE A LEGAL DUTY UNDER THIS SECTION TO REQUEST AN EMPLOYEE OR JOB
APPLICANT TO UNDERGO DRUG TESTING.
3. NOTICE TO EMPLOYEES AND JOB APPLICANTS. PRIOR TO TESTING, ALL
EMPLOYEES AND JOB APPLICANTS FOR EMPLOYMENT MUST BE GIVEN A WRITTEN
POLICY STATEMENT FROM THE EMPLOYER WHICH CONTAINS:
A. 2808 14
A. A GENERAL STATEMENT OF THE EMPLOYER'S POLICY ON EMPLOYEE DRUG USE,
WHICH SHALL IDENTIFY:
(1) THE TYPES OF TESTING AN EMPLOYEE OR JOB APPLICANT MAY BE REQUIRED
TO SUBMIT TO, INCLUDING REASONABLE SUSPICION OR OTHER BASIS; AND
(2) THE ACTIONS THE EMPLOYER MAY TAKE AGAINST AN EMPLOYEE OR JOB
APPLICANT ON THE BASIS OF A POSITIVE CONFIRMED DRUG TEST RESULT.
B. A STATEMENT ADVISING THE EMPLOYEE OR JOB APPLICANT OF THE EXISTENCE
OF THIS SECTION.
C. A GENERAL STATEMENT CONCERNING CONFIDENTIALITY.
D. PROCEDURES FOR EMPLOYEES AND JOB APPLICANTS TO CONFIDENTIALLY
REPORT THE USE OF PRESCRIPTION OR NONPRESCRIPTION MEDICATIONS BOTH
BEFORE AND AFTER BEING TESTED. ADDITIONALLY, EMPLOYEES AND JOB APPLI-
CANTS SHALL RECEIVE NOTICE OF THE MOST COMMON MEDICATIONS BY BRAND NAME
OR COMMON NAME, AS APPLICABLE, AS WELL AS BY CHEMICAL NAME, WHICH MAY
ALTER OR AFFECT A DRUG TEST. A LIST OF SUCH MEDICATIONS AS DEVELOPED BY
THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES SHALL BE AVAILABLE
TO EMPLOYERS THROUGH THE DEPARTMENT.
E. THE CONSEQUENCES OF REFUSING TO SUBMIT TO A DRUG TEST.
F. NAMES, ADDRESSES, AND TELEPHONE NUMBERS OF EMPLOYEE ASSISTANCE
DEPARTMENTS AND LOCAL ALCOHOL AND DRUG REHABILITATION PROGRAMS.
G. A STATEMENT THAT AN EMPLOYEE OR JOB APPLICANT WHO RECEIVES A POSI-
TIVE CONFIRMED DRUG TEST RESULT MAY CONTEST OR EXPLAIN THE RESULT TO THE
EMPLOYER WITHIN FIVE WORKING DAYS AFTER WRITTEN NOTIFICATION OF THE
POSITIVE TEST RESULT. IF AN EMPLOYEE'S OR JOB APPLICANT'S EXPLANATION OR
CHALLENGE IS UNSATISFACTORY TO THE EMPLOYER, THE PERSON MAY CONTEST THE
DRUG TEST RESULT PURSUANT TO RULES ADOPTED BY THE DEPARTMENT.
H. A STATEMENT INFORMING THE EMPLOYEE OR JOB APPLICANT OF HIS RESPON-
SIBILITY TO NOTIFY THE LABORATORY OF ANY ADMINISTRATIVE OR CIVIL ACTION
BROUGHT PURSUANT TO THIS SECTION.
I. A LIST OF ALL DRUGS FOR WHICH THE EMPLOYER WILL TEST, DESCRIBED BY
BRAND NAMES OR COMMON NAMES, AS APPLICABLE, AS WELL AS BY CHEMICAL
NAMES.
J. A STATEMENT REGARDING ANY APPLICABLE COLLECTIVE BARGAINING AGREE-
MENT OR CONTRACT AND THE RIGHT TO APPEAL TO THE DEPARTMENT OR APPLICABLE
COURT.
K. A STATEMENT NOTIFYING EMPLOYEES AND JOB APPLICANTS OF THEIR RIGHT
TO CONSULT THE TESTING LABORATORY FOR TECHNICAL INFORMATION REGARDING
PRESCRIPTION AND NONPRESCRIPTION MEDICATION.
L. AN EMPLOYER NOT HAVING A DRUG TESTING PROGRAM SHALL ENSURE THAT AT
LEAST SIXTY DAYS ELAPSE BETWEEN A GENERAL ONE-TIME NOTICE TO ALL EMPLOY-
EES THAT A DRUG TESTING PROGRAM IS BEING IMPLEMENTED AND THE BEGINNING
OF ACTUAL DRUG TESTING. AN EMPLOYER HAVING A DRUG TESTING PROGRAM IN
PLACE PRIOR TO THE EFFECTIVE DATE OF THIS SECTION IS NOT REQUIRED TO
PROVIDE A SIXTY-DAY NOTICE PERIOD.
M. AN EMPLOYER SHALL INCLUDE NOTICE OF DRUG TESTING ON VACANCY
ANNOUNCEMENTS FOR THOSE POSITIONS FOR WHICH DRUG TESTING IS REQUIRED. A
NOTICE OF THE EMPLOYER'S DRUG TESTING POLICY MUST ALSO BE POSTED IN AN
APPROPRIATE AND CONSPICUOUS LOCATION ON THE EMPLOYER'S PREMISES, AND
COPIES OF THE POLICY MUST BE MADE AVAILABLE FOR INSPECTION BY THE GENER-
AL PUBLIC DURING REGULAR BUSINESS HOURS IN THE EMPLOYER'S PERSONNEL
OFFICE OR OTHER SUITABLE LOCATIONS.
4. TYPES OF TESTING. AN EMPLOYER IS REQUIRED TO CONDUCT THE FOLLOWING
TYPES OF DRUG TESTS IN ORDER TO QUALIFY FOR PREFERENTIAL TREATMENT
PROVIDED BY SECTION FOUR HUNDRED FORTY-TWO OF THIS ARTICLE.
A. JOB APPLICANT TESTING. AN EMPLOYER MUST REQUIRE JOB APPLICANTS TO
SUBMIT TO A DRUG TEST AND MAY USE A REFUSAL TO SUBMIT TO A DRUG TEST OR
A. 2808 15
A POSITIVE CONFIRMED DRUG TEST AS A BASIS FOR REFUSAL TO HIRE THE JOB
APPLICANT.
B. REASONABLE SUSPICION. AN EMPLOYER MUST REQUIRE AN EMPLOYEE TO
SUBMIT TO REASONABLE SUSPICION DRUG TESTING.
C. ROUTINE FITNESS-FOR-DUTY. AN EMPLOYER MUST REQUIRE AN EMPLOYEE TO
SUBMIT TO A DRUG TEST IF THE TEST IS CONDUCTED AS PART OF A ROUTINELY
SCHEDULED EMPLOYEE FITNESS-FOR-DUTY MEDICAL EXAMINATION THAT IS PART OF
THE EMPLOYER'S ESTABLISHED POLICY OR THAT IS SCHEDULED ROUTINELY FOR ALL
MEMBERS OF AN EMPLOYMENT CLASSIFICATION OR GROUP.
D. FOLLOW-UP TESTING. IF THE EMPLOYEE IN THE COURSE OF EMPLOYMENT
ENTERS AN EMPLOYEE ASSISTANCE PROGRAM FOR DRUG-RELATED PROBLEMS, OR AN
ALCOHOL AND DRUG REHABILITATION PROGRAM, THE EMPLOYER MUST REQUIRE THE
EMPLOYEE TO SUBMIT TO A DRUG TEST AS A FOLLOW-UP TO SUCH PROGRAM, AND ON
A QUARTERLY, SEMIANNUAL, OR ANNUAL BASIS FOR UP TO TWO YEARS THEREAFTER.
5. PROCEDURES AND EMPLOYEE PROTECTION. ALL SPECIMEN COLLECTION AND
TESTING FOR DRUGS UNDER THIS SECTION SHALL BE PERFORMED IN ACCORDANCE
WITH THE FOLLOWING PROCEDURES:
A. A SAMPLE SHALL BE COLLECTED WITH DUE REGARD TO THE PRIVACY OF THE
INDIVIDUAL PROVIDING THE SAMPLE, AND IN A MANNER REASONABLY CALCULATED
TO PREVENT SUBSTITUTION OR CONTAMINATION OF THE SAMPLE.
B. SPECIMEN COLLECTION SHALL BE DOCUMENTED, AND THE DOCUMENTATION
PROCEDURES SHALL INCLUDE:
(1) LABELING OF SPECIMEN CONTAINERS SO AS TO REASONABLY PRECLUDE THE
LIKELIHOOD OF ERRONEOUS IDENTIFICATION OF TEST RESULTS.
(2) A FORM FOR THE EMPLOYEE OR JOB APPLICANT TO PROVIDE ANY INFORMA-
TION HE CONSIDERS RELEVANT TO THE TEST, INCLUDING IDENTIFICATION OF
CURRENTLY OR RECENTLY USED PRESCRIPTION OR NONPRESCRIPTION MEDICATION OR
OTHER RELEVANT MEDICAL INFORMATION. SUCH FORM SHALL PROVIDE NOTICE OF
THE MOST COMMON MEDICATIONS BY BRAND NAME OR COMMON NAME, AS APPLICABLE,
AS WELL AS BY CHEMICAL NAME, WHICH MAY ALTER OR AFFECT A DRUG TEST. THE
PROVIDING OF INFORMATION SHALL NOT PRECLUDE THE ADMINISTRATION OF THE
DRUG TEST, BUT SHALL BE TAKEN INTO ACCOUNT IN INTERPRETING ANY POSITIVE
CONFIRMED RESULTS.
C. SPECIMEN COLLECTION, STORAGE, AND TRANSPORTATION TO THE TESTING
SITE SHALL BE PERFORMED IN A MANNER WHICH WILL REASONABLY PRECLUDE SPEC-
IMEN CONTAMINATION OR ADULTERATION.
D. EACH INITIAL AND CONFIRMATION TEST CONDUCTED UNDER THIS SECTION,
NOT INCLUDING THE TAKING OR COLLECTING OF A SPECIMEN TO BE TESTED, SHALL
BE CONDUCTED BY A LICENSED LABORATORY AS DESCRIBED IN SUBDIVISION NINE
OF THIS SECTION.
E. A SPECIMEN FOR A DRUG TEST MAY BE TAKEN OR COLLECTED BY ANY OF THE
FOLLOWING PERSONS:
(1) A PHYSICIAN, A PHYSICIAN ASSISTANT, A REGISTERED PROFESSIONAL
NURSE, A LICENSED PRACTICAL NURSE, OR A NURSE PRACTITIONER OR A CERTI-
FIED PARAMEDIC WHO IS PRESENT AT THE SCENE OF AN ACCIDENT FOR THE
PURPOSE OF RENDERING EMERGENCY MEDICAL SERVICE OR TREATMENT.
(2) A QUALIFIED PERSON EMPLOYED BY A LICENSED LABORATORY.
F. A PERSON WHO COLLECTS OR TAKES A SPECIMEN FOR A DRUG TEST CONDUCTED
PURSUANT TO THIS SECTION SHALL COLLECT AN AMOUNT SUFFICIENT FOR TWO DRUG
TESTS AS DETERMINED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES.
G. EVERY SPECIMEN THAT PRODUCES A POSITIVE CONFIRMED RESULT SHALL BE
PRESERVED BY THE LICENSED LABORATORY THAT CONDUCTS THE CONFIRMATION TEST
FOR A PERIOD OF AT LEAST TWO HUNDRED TEN DAYS AFTER THE RESULTS OF THE
POSITIVE CONFIRMATION TEST ARE MAILED OR OTHERWISE DELIVERED TO THE
EMPLOYER. HOWEVER, IF AN EMPLOYEE OR JOB APPLICANT UNDERTAKES AN ADMIN-
A. 2808 16
ISTRATIVE OR LEGAL CHALLENGE TO THE TEST RESULT, THE EMPLOYEE OR JOB
APPLICANT SHALL NOTIFY THE LABORATORY AND THE SAMPLE SHALL BE RETAINED
BY THE LABORATORY UNTIL THE CASE OR ADMINISTRATIVE APPEAL IS SETTLED.
DURING THE ONE HUNDRED EIGHTY DAY PERIOD AFTER WRITTEN NOTIFICATION OF A
POSITIVE TEST RESULT, THE EMPLOYEE OR JOB APPLICANT WHO HAS PROVIDED THE
SPECIMEN SHALL BE PERMITTED BY THE EMPLOYER TO HAVE A PORTION OF THE
SPECIMEN RETESTED, AT THE EMPLOYEE'S OR JOB APPLICANT'S EXPENSE, AT
ANOTHER LABORATORY, LICENSED AND APPROVED BY THE OFFICE OF ALCOHOLISM
AND SUBSTANCE ABUSE SERVICES, CHOSEN BY THE EMPLOYEE OR JOB APPLICANT.
THE SECOND LABORATORY MUST TEST AT EQUAL OR GREATER SENSITIVITY FOR THE
DRUG IN QUESTION AS THE FIRST LABORATORY. THE FIRST LABORATORY WHICH
PERFORMED THE TEST FOR THE EMPLOYER SHALL BE RESPONSIBLE FOR THE TRANS-
FER OF THE PORTION OF THE SPECIMEN TO BE RETESTED, AND FOR THE INTEGRITY
OF THE CHAIN OF CUSTODY DURING SUCH TRANSFER.
H. WITHIN FIVE WORKING DAYS AFTER RECEIPT OF A POSITIVE CONFIRMED TEST
RESULT FROM THE TESTING LABORATORY, AN EMPLOYER SHALL INFORM AN EMPLOYEE
OR JOB APPLICANT IN WRITING OF SUCH POSITIVE TEST RESULT, THE CONSE-
QUENCES OF SUCH RESULTS, AND THE OPTIONS AVAILABLE TO THE EMPLOYEE OR
JOB APPLICANT.
I. THE EMPLOYER SHALL PROVIDE TO THE EMPLOYEE OR JOB APPLICANT, UPON
REQUEST, A COPY OF THE TEST RESULTS.
J. WITHIN FIVE WORKING DAYS AFTER RECEIVING NOTICE OF A POSITIVE
CONFIRMED TEST RESULT, THE EMPLOYEE OR JOB APPLICANT MAY SUBMIT INFORMA-
TION TO AN EMPLOYER EXPLAINING OR CONTESTING THE TEST RESULTS, AND WHY
THE RESULTS DO NOT CONSTITUTE A VIOLATION OF THE EMPLOYER'S POLICY.
K. IF THE EMPLOYEE'S OR JOB APPLICANT'S EXPLANATION OR CHALLENGE OF
THE POSITIVE TEST RESULTS IS UNSATISFACTORY TO THE EMPLOYER, A WRITTEN
EXPLANATION AS TO WHY THE EMPLOYEE'S OR JOB APPLICANT'S EXPLANATION IS
UNSATISFACTORY, ALONG WITH THE REPORT OF POSITIVE RESULTS SHALL BE
PROVIDED BY THE EMPLOYER TO THE EMPLOYEE OR JOB APPLICANT AND ALL SUCH
DOCUMENTATION SHALL BE KEPT CONFIDENTIAL BY THE EMPLOYER PURSUANT TO
SUBDIVISION EIGHT OF THIS SECTION AND SHALL BE RETAINED BY THE EMPLOYER
FOR AT LEAST ONE YEAR.
L. NO EMPLOYER MAY DISCHARGE, DISCIPLINE, REFUSE TO HIRE, DISCRIMINATE
AGAINST, OR REQUEST OR REQUIRE REHABILITATION OF AN EMPLOYEE OR JOB
APPLICANT ON THE SOLE BASIS OF A POSITIVE TEST RESULT THAT HAS NOT BEEN
VERIFIED BY A CONFIRMATION TEST.
M. AN EMPLOYER WHO PERFORMS DRUG TESTING OR SPECIMEN COLLECTION SHALL
USE CHAIN OF CUSTODY PROCEDURES AS ESTABLISHED BY THE OFFICE OF ALCOHOL-
ISM AND SUBSTANCE ABUSE SERVICES TO ENSURE PROPER RECORDKEEPING, HANDL-
ING, LABELING, AND IDENTIFICATION OF ALL SPECIMENS TO BE TESTED.
N. AN EMPLOYER SHALL PAY THE COST OF ALL DRUG TESTS, INITIAL AND
CONFIRMATION, WHICH HE REQUIRES OF EMPLOYEES.
O. AN EMPLOYEE OR JOB APPLICANT SHALL PAY THE COSTS OF ANY ADDITIONAL
DRUG TESTS NOT REQUIRED BY THE EMPLOYER.
P. NO EMPLOYER SHALL DISCHARGE, DISCIPLINE, OR DISCRIMINATE AGAINST AN
EMPLOYEE SOLELY UPON THE EMPLOYEE'S VOLUNTARILY SEEKING TREATMENT, WHILE
UNDER THE EMPLOY OF THE EMPLOYER, FOR A DRUG-RELATED PROBLEM IF THE
EMPLOYEE HAS NOT PREVIOUSLY TESTED POSITIVE FOR DRUG USE, ENTERED AN
EMPLOYEE ASSISTANCE PROGRAM FOR DRUG-RELATED PROBLEMS, OR ENTERED AN
ALCOHOL AND DRUG REHABILITATION PROGRAM.
Q. IF TESTING IS CONDUCTED BASED ON REASONABLE SUSPICION, THE EMPLOYER
SHALL PROMPTLY DETAIL IN WRITING THE CIRCUMSTANCES WHICH FORMED THE
BASIS OF THE DETERMINATION THAT REASONABLE SUSPICION EXISTED TO WARRANT
THE TESTING. A COPY OF THIS DOCUMENTATION SHALL BE GIVEN TO THE EMPLOYEE
UPON REQUEST AND THE ORIGINAL DOCUMENTATION SHALL BE KEPT CONFIDENTIAL
A. 2808 17
BY THE EMPLOYER PURSUANT TO SUBDIVISION EIGHT OF THIS SECTION AND SHALL
BE RETAINED BY THE EMPLOYER FOR AT LEAST ONE YEAR.
6. CONFIRMATION TESTING. A. IF AN INITIAL DRUG TEST IS NEGATIVE, THE
EMPLOYER MAY IN ITS SOLE DISCRETION SEEK A CONFIRMATION TEST.
B. ONLY LICENSED LABORATORIES AS DESCRIBED IN SUBDIVISION NINE OF THIS
SECTION SHALL CONDUCT CONFIRMATION DRUG TESTS.
C. ALL POSITIVE INITIAL TESTS SHALL BE CONFIRMED USING GAS
CHROMATOGRAPHY/MASS SPECTROMETRY (GC/MS) OR AN EQUIVALENT OR MORE ACCU-
RATE SCIENTIFICALLY ACCEPTED METHOD APPROVED BY THE OFFICE OF ALCOHOLISM
AND SUBSTANCE ABUSE AS SUCH TECHNOLOGY BECOMES AVAILABLE IN A COST-EF-
FECTIVE FORM.
7. EMPLOYER PROTECTION.
A. NO EMPLOYEE OR JOB APPLICANT WHOSE DRUG TEST RESULT IS CONFIRMED AS
POSITIVE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION SHALL, BY
VIRTUE OF THE RESULT ALONE, BE DEFINED AS A PERSON HAVING A DISABILITY.
B. AN EMPLOYER WHO DISCHARGES OR DISCIPLINES AN EMPLOYEE OR REFUSES TO
HIRE A JOB APPLICANT IN COMPLIANCE WITH THIS SECTION SHALL BE CONSIDERED
TO HAVE DISCHARGED, DISCIPLINED, OR REFUSED TO HIRE FOR CAUSE.
C. NO PHYSICIAN-PATIENT RELATIONSHIP IS CREATED BETWEEN AN EMPLOYEE OR
JOB APPLICANT AND AN EMPLOYER OR ANY PERSON PERFORMING OR EVALUATING A
DRUG TEST, SOLELY BY THE ESTABLISHMENT, IMPLEMENTATION, OR ADMINIS-
TRATION OF A DRUG TESTING PROGRAM.
D. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT AN EMPLOYER
FROM ESTABLISHING REASONABLE WORK RULES RELATED TO EMPLOYEE POSSESSION,
USE, SALE, OR SOLICITATION OF DRUGS, INCLUDING CONVICTIONS FOR DRUG-RE-
LATED OFFENSES, AND TAKING ACTION BASED UPON A VIOLATION OF ANY OF THOSE
RULES.
E. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO OPERATE RETROACTIVE-
LY, AND NOTHING IN THIS SECTION SHALL ABROGATE THE RIGHT OF AN EMPLOYER
UNDER STATE LAW TO CONDUCT DRUG TESTS, OR IMPLEMENT EMPLOYEE DRUG TEST-
ING PROGRAMS, PRIOR TO JANUARY FIRST, TWO THOUSAND TEN.
F. IF AN EMPLOYEE OR JOB APPLICANT REFUSES TO SUBMIT TO A DRUG TEST,
THE EMPLOYER SHALL NOT BE BARRED FROM DISCHARGING OR DISCIPLINING THE
EMPLOYEE OR FROM REFUSING TO HIRE THE JOB APPLICANT. HOWEVER, NOTHING IN
THIS PARAGRAPH SHALL ABROGATE THE RIGHTS AND REMEDIES OF THE EMPLOYEE OR
JOB APPLICANT AS OTHERWISE PROVIDED IN THIS SECTION.
G. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT AN EMPLOYER
FROM CONDUCTING MEDICAL SCREENING OR OTHER TESTS REQUIRED BY ANY STAT-
UTE, RULE, OR REGULATION FOR THE PURPOSE OF MONITORING EXPOSURE OF
EMPLOYEES TO TOXIC OR OTHER UNHEALTHY SUBSTANCES IN THE WORKPLACE OR IN
THE PERFORMANCE OF JOB RESPONSIBILITIES. SUCH SCREENING OR TESTS SHALL
BE LIMITED TO THE SPECIFIC SUBSTANCES EXPRESSLY IDENTIFIED IN THE APPLI-
CABLE STATUTE, RULE, OR REGULATION, UNLESS PRIOR WRITTEN CONSENT OF THE
EMPLOYEE IS OBTAINED FOR OTHER TESTS.
8. CONFIDENTIALITY. A. ALL INFORMATION, INTERVIEWS, REPORTS, STATE-
MENTS, MEMORANDA, AND DRUG TEST RESULTS, WRITTEN OR OTHERWISE RECEIVED
BY THE EMPLOYER THROUGH A DRUG TESTING PROGRAM ARE CONFIDENTIAL COMMUNI-
CATIONS AND MAY NOT BE USED OR RECEIVED IN EVIDENCE, OBTAINED IN DISCOV-
ERY, OR DISCLOSED IN ANY PUBLIC OR PRIVATE PROCEEDINGS, EXCEPT IN
ACCORDANCE WITH THIS SECTION.
B. EMPLOYERS, LABORATORIES, EMPLOYEE ASSISTANCE PROGRAMS, DRUG AND
ALCOHOL REHABILITATION PROGRAMS, AND THEIR AGENTS WHO RECEIVE OR HAVE
ACCESS TO INFORMATION CONCERNING DRUG TEST RESULTS SHALL KEEP ALL INFOR-
MATION CONFIDENTIAL. RELEASE OF SUCH INFORMATION UNDER ANY OTHER CIRCUM-
STANCE SHALL BE SOLELY PURSUANT TO A WRITTEN CONSENT FORM SIGNED VOLUN-
TARILY BY THE PERSON TESTED, UNLESS SUCH RELEASE IS COMPELLED BY A
A. 2808 18
HEARING OFFICER OR A COURT OF COMPETENT JURISDICTION PURSUANT TO AN
APPEAL TAKEN UNDER THIS SECTION, OR UNLESS DEEMED APPROPRIATE BY A
PROFESSIONAL OR OCCUPATIONAL LICENSING BOARD IN A RELATED DISCIPLINARY
PROCEEDING. THE CONSENT FORM MUST CONTAIN, AT A MINIMUM:
(1) THE NAME OF THE PERSON WHO IS AUTHORIZED TO OBTAIN THE INFORMA-
TION.
(2) THE PURPOSE OF THE DISCLOSURE.
(3) THE PRECISE INFORMATION TO BE DISCLOSED.
(4) THE DURATION OF THE CONSENT.
(5) THE SIGNATURE OF THE PERSON AUTHORIZING RELEASE OF THE INFORMA-
TION.
C. INFORMATION ON DRUG TEST RESULTS SHALL NOT BE RELEASED OR USED IN
ANY CRIMINAL PROCEEDING AGAINST THE EMPLOYEE OR JOB APPLICANT. INFORMA-
TION RELEASED CONTRARY TO THIS SECTION SHALL BE INADMISSIBLE AS EVIDENCE
IN ANY SUCH CRIMINAL PROCEEDING.
D. NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT THE EMPLOYER, AGENT
OF THE EMPLOYER, OR LABORATORY CONDUCTING A DRUG TEST FROM HAVING ACCESS
TO EMPLOYEE DRUG TEST INFORMATION WHEN CONSULTING WITH LEGAL COUNSEL IN
CONNECTION WITH ACTIONS BROUGHT UNDER OR RELATED TO THIS SECTION OR WHEN
THE INFORMATION IS RELEVANT TO ITS DEFENSE IN A CIVIL OR ADMINISTRATIVE
MATTER.
9. DRUG TESTING STANDARDS; LABORATORIES. A. NO LABORATORY MAY ANALYZE
INITIAL OR CONFIRMATION DRUG SPECIMENS UNLESS:
(1) THE LABORATORY IS LICENSED AND APPROVED BY THE OFFICE OF ALCOHOL-
ISM AND SUBSTANCE ABUSE SERVICES USING CRITERIA ESTABLISHED BY THE
NATIONAL INSTITUTE ON DRUG ABUSE AS GUIDELINES FOR MODELING THE STATE
DRUG TESTING PROGRAM PURSUANT TO THIS SECTION.
(2) THE LABORATORY HAS WRITTEN PROCEDURES TO ENSURE THE CHAIN OF
CUSTODY.
(3) THE LABORATORY FOLLOWS PROPER QUALITY CONTROL PROCEDURES, INCLUD-
ING, BUT NOT LIMITED TO:
(A) THE USE OF INTERNAL QUALITY CONTROLS INCLUDING THE USE OF SAMPLES
OF KNOWN CONCENTRATIONS WHICH ARE USED TO CHECK THE PERFORMANCE AND
CALIBRATION OF TESTING EQUIPMENT, AND PERIODIC USE OF BLIND SAMPLES FOR
OVERALL ACCURACY.
(B) AN INTERNAL REVIEW AND CERTIFICATION PROCESS FOR DRUG TEST
RESULTS, CONDUCTED BY A PERSON QUALIFIED TO PERFORM THAT FUNCTION IN THE
TESTING LABORATORY.
(C) SECURITY MEASURES IMPLEMENTED BY THE TESTING LABORATORY TO
PRECLUDE ADULTERATION OF SPECIMENS AND DRUG TEST RESULTS.
(D) OTHER NECESSARY AND PROPER ACTIONS TAKEN TO ENSURE RELIABLE AND
ACCURATE DRUG TEST RESULTS.
B. A LABORATORY SHALL DISCLOSE TO THE EMPLOYER A WRITTEN TEST RESULT
REPORT WITHIN SEVEN WORKING DAYS AFTER RECEIPT OF THE SAMPLE. ALL LABO-
RATORY REPORTS OF A DRUG TEST RESULT SHALL, AT A MINIMUM, STATE:
(1) THE NAME AND ADDRESS OF THE LABORATORY WHICH PERFORMED THE TEST
AND THE POSITIVE IDENTIFICATION OF THE PERSON TESTED.
(2) POSITIVE RESULTS ON CONFIRMATION TESTS ONLY, OR NEGATIVE RESULTS,
AS APPLICABLE.
(3) A LIST OF THE DRUGS FOR WHICH THE DRUG ANALYSES WERE CONDUCTED.
(4) THE TYPE OF TESTS CONDUCTED FOR BOTH INITIAL AND CONFIRMATION
TESTS AND THE MINIMUM CUT OFF LEVELS OF THE TESTS.
(5) ANY CORRELATION BETWEEN MEDICATION REPORTED BY THE EMPLOYEE OR JOB
APPLICANT PURSUANT TO SUBPARAGRAPH TWO OF PARAGRAPH B OF SUBDIVISION
FIVE OF THIS SECTION, AND A POSITIVE CONFIRMED DRUG TEST RESULT. NO
A. 2808 19
REPORT SHALL DISCLOSE THE PRESENCE OR ABSENCE OF ANY DRUG OTHER THAN A
SPECIFIC DRUG AND ITS METABOLITES LISTED PURSUANT TO THIS SECTION.
C. THE LABORATORY SHALL SUBMIT TO THE OFFICE OF ALCOHOLISM AND
SUBSTANCE ABUSE SERVICES A MONTHLY REPORT WITH STATISTICAL INFORMATION
REGARDING THE TESTING OF EMPLOYEES AND JOB APPLICANTS. THE REPORT SHALL
INCLUDE INFORMATION ON THE METHODS OF ANALYSES CONDUCTED, THE DRUGS
TESTED FOR, THE NUMBER OF POSITIVE AND NEGATIVE RESULTS FOR BOTH INITIAL
AND CONFIRMATION TESTS, AND ANY OTHER INFORMATION DEEMED APPROPRIATE BY
THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES. NO MONTHLY REPORT
SHALL IDENTIFY SPECIFIC EMPLOYEES OR JOB APPLICANTS.
D. LABORATORIES SHALL PROVIDE TECHNICAL ASSISTANCE TO THE EMPLOYER,
EMPLOYEE, OR JOB APPLICANT FOR THE PURPOSE OF INTERPRETING ANY POSITIVE
CONFIRMED TEST RESULTS WHICH COULD HAVE BEEN CAUSED BY PRESCRIPTION OR
NONPRESCRIPTION MEDICATION TAKEN BY THE EMPLOYEE OR JOB APPLICANT.
10. RULES. A. THE DEPARTMENT SHALL ADOPT RULES USING RULES ADOPTED BY
THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES PURSUANT TO TITLE
F OF ARTICLE FIVE OF THE CIVIL SERVICE LAW AND CRITERIA ESTABLISHED BY
THE NATIONAL INSTITUTE ON DRUG ABUSE AS GUIDELINES FOR MODELING THE
STATE DRUG TESTING PROGRAM, CONCERNING, BUT NOT LIMITED TO:
(1) STANDARDS FOR DRUG TESTING LABORATORY LICENSING AND SUSPENSION AND
REVOCATION OF A LICENSE.
(2) BODY SPECIMENS AND MINIMUM SPECIMEN AMOUNTS WHICH ARE APPROPRIATE
FOR DRUG TESTING.
(3) METHODS OF ANALYSIS AND PROCEDURES TO ENSURE RELIABLE DRUG TESTING
RESULTS, INCLUDING STANDARDS FOR INITIAL TESTS AND CONFIRMATION TESTS.
(4) MINIMUM CUTOFF DETECTION LEVELS FOR DRUGS OR THEIR METABOLITES FOR
THE PURPOSES OF DETERMINING A POSITIVE TEST RESULT.
(5) CHAIN OF CUSTODY PROCEDURES TO ENSURE PROPER IDENTIFICATION,
LABELING, AND HANDLING OF SPECIMENS BEING TESTED.
(6) RETENTION, STORAGE, AND TRANSPORTATION PROCEDURES TO ENSURE RELI-
ABLE RESULTS ON CONFIRMATION TESTS AND RETESTS.
B. THIS SECTION SHALL NOT BE CONSTRUED TO ELIMINATE THE BARGAINABLE
RIGHTS AS PROVIDED IN THE COLLECTIVE BARGAINING PROCESS IF APPLICABLE.
S 442. PREFERENCE TO BUSINESSES WITH DRUG-FREE WORKPLACE PROGRAMS.
WHENEVER TWO OR MORE BIDS WHICH ARE EQUAL WITH RESPECT TO PRICE, QUALI-
TY, AND SERVICE ARE RECEIVED BY THE STATE OR BY ANY POLITICAL SUBDIVI-
SION FOR THE PROCUREMENT OF COMMODITIES OR CONTRACTUAL SERVICES, A BID
RECEIVED FROM A BUSINESS THAT CERTIFIES THAT IT HAS IMPLEMENTED A DRUG-
FREE WORKPLACE PROGRAM SHALL BE GIVEN PREFERENCE IN THE AWARD PROCESS.
IN ORDER TO HAVE A DRUG-FREE WORKPLACE PROGRAM A BUSINESS SHALL:
1. PUBLISH A STATEMENT NOTIFYING EMPLOYEES THAT THE UNLAWFUL MANUFAC-
TURE, DISTRIBUTION, DISPENSING, POSSESSION, OR USE OF A CONTROLLED
SUBSTANCE IS PROHIBITED IN THE WORKPLACE AND SPECIFYING THE ACTIONS THAT
WILL BE TAKEN AGAINST EMPLOYEES FOR VIOLATIONS OF SUCH PROHIBITION.
2. INFORM EMPLOYEES ABOUT THE DANGERS OF DRUG ABUSE IN THE WORKPLACE,
THE BUSINESS'S POLICY OF MAINTAINING A DRUG-FREE WORKPLACE, ANY AVAIL-
ABLE DRUG COUNSELING REHABILITATION, AND EMPLOYEE ASSISTANCE PROGRAMS
AND THE PENALTIES THAT MAY BE IMPOSED UPON EMPLOYEES FOR DRUG ABUSE
VIOLATIONS.
3. GIVE EACH EMPLOYEE ENGAGED IN PROVIDING THE COMMODITIES OR CONTRAC-
TUAL SERVICES THAT ARE UNDER BID A COPY OF THE STATEMENT SPECIFIED IN
SUBDIVISION ONE OF THIS SECTION.
4. IN THE STATEMENT SPECIFIED IN SUBDIVISION ONE OF THIS SECTION,
NOTIFY THE EMPLOYEES THAT, AS A CONDITION OF WORKING ON THE COMMODITIES
OR CONTRACTUAL SERVICES THAT ARE UNDER BID, THE EMPLOYEE WILL ABIDE BY
THE TERMS OF THE STATEMENT AND WILL NOTIFY THE EMPLOYER OF ANY
A. 2808 20
CONVICTION OF, OR PLEA OF GUILTY OR NOLO CONTENDERE TO, ANY VIOLATION OF
ANY PROVISION OF ARTICLE TWO HUNDRED TWENTY OR TWO HUNDRED TWENTY-ONE OF
THE PENAL LAW, OR OF ANY CONTROLLED SUBSTANCE LAW OF THE UNITED STATES
OR ANY STATE, FOR A VIOLATION OCCURRING IN THE WORKPLACE NO LATER THAN
FIVE DAYS AFTER SUCH CONVICTION.
5. IMPOSE A SANCTION ON, OR REQUIRE THE SATISFACTORY PARTICIPATION IN
A DRUG ABUSE ASSISTANCE OR REHABILITATION PROGRAM IF SUCH IS AVAILABLE
IN THE EMPLOYEE'S COMMUNITY BY ANY EMPLOYEE WHO IS SO CONVICTED.
6. MAKE A GOOD FAITH EFFORT TO CONTINUE TO MAINTAIN A DRUG-FREE WORK-
PLACE THROUGH IMPLEMENTATION OF THIS SECTION.
S 3. Title L of the criminal procedure law is amended by adding a new
article 435 to read as follows:
ARTICLE 435
DRUG OFFENDER PUNISHMENT PROGRAM
SECTION 435.10 SHORT TITLE.
435.15 LEGISLATIVE FINDINGS, PURPOSE, AND INTENT.
435.20 DEFINITIONS.
435.25 DRUG PUNISHMENT PROGRAM CONTRACTS; PROGRAM MANAGER AND
ASSESSMENT AND TREATMENT PROVIDERS.
435.30 DRUG PUNISHMENT PROGRAM.
435.35 DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT OVERVIEW
AND GOALS.
435.40 DUTIES OF DEPARTMENT.
435.45 DRUG PUNISHMENT PROGRAM FUNDS; ACCOUNTING; AUDITS.
435.48 DRUG PUNISHMENT PROGRAM; ASSESSMENT AND PLACEMENT PROCE-
DURES.
435.50 RECORDS OF DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREAT-
MENT PROVIDERS; CONFIDENTIALITY.
435.53 INFORMATION SYSTEMS.
435.55 DRUG PUNISHMENT PROGRAM.
435.60 DESIGNATED TREATMENT COMMUNITIES.
435.65 CORE TREATMENT PROGRAM.
435.70 DRUG OFFENDER ADVISORY BOARD.
435.75 DRUG PUNISHMENT PROGRAM QUALITY ASSURANCE COMPONENT;
DUTIES OF STATEWIDE PROGRAM MANAGER.
435.80 DRUG PUNISHMENT PROGRAM EVALUATION.
435.85 FINANCIAL CONSIDERATIONS FOR ASSESSMENT, TREATMENT, AND
TRANSPORTATION OF DRUG OFFENDERS.
S 435.10 SHORT TITLE.
THIS ARTICLE MAY BE CITED AS THE "NEW YORK DRUG PUNISHMENT ACT OF
2009".
S 435.15 LEGISLATIVE FINDINGS, PURPOSE, AND INTENT.
1. THE LEGISLATURE FINDS THAT FIGHTING CRIME EFFECTIVELY REQUIRES A
MULTIPRONGED EFFORT FOCUSING ON PARTICULAR CLASSES OF OFFENDERS AND THE
DEVELOPMENT OF PARTICULAR PROGRAMS. BECAUSE THIS STATE'S CRIMINAL
JUSTICE SYSTEM SENTENCES MORE OFFENDERS THAN THE AVAILABLE NUMBER OF
PRISON BEDS AND OTHER NONPRISON PLACEMENTS, THE POTENTIAL FOR OVERCROWD-
ING THIS STATE'S PRISONS BEYOND ALLOWABLE LIMITS HAS FORCED THE EARLY
RELEASE OF MANY OFFENDERS, INCLUDING VIOLENT OFFENDERS. MOREOVER, SINCE
THIS STATE'S CORRECTIONAL SYSTEM HAS AN INADEQUATE NUMBER OF PROGRAMS
FOR A SIGNIFICANT NUMBER OF OFFENDERS WHOSE CRIMINALITY IS DUE TO OR
CONNECTED WITH DRUG ABUSE, THE RECIDIVISM RATES FOR THESE OFFENDERS
EXCEED THOSE TOLERATED BY THE LEGISLATURE AND BY THE CITIZENS OF THIS
STATE.
2. THE LEGISLATURE, THEREFORE, ESTABLISHES THE FOLLOWING PUBLIC POLI-
CY:
A. 2808 21
(A) IN ORDER TO ENSURE THAT ADEQUATE PRISON BEDS ARE AVAILABLE TO
PERMIT THE LENGTHENING OF TIME SERVED BY VIOLENT OFFENDERS, NONVIOLENT
OFFENDERS SHALL BE PLACED, WHERE APPROPRIATE AND TO THE MAXIMUM EXTENT
POSSIBLE, IN COMMUNITY-BASED ALTERNATIVES TO PRISON.
(B) COMMUNITY-BASED ALTERNATIVES SHALL BE EXPANDED TO ENSURE COST-EF-
FECTIVE AND TIMELY RESPONSES TO CRIMINAL ACTIVITY PERPETRATED BY NONVIO-
LENT OFFENDERS AND TO REDUCE PROBATION CASELOADS TO LEVELS WHICH PERMIT
INTENSIVE SUPERVISION.
(C) FOR NONVIOLENT OFFENDERS WHOSE CRIMINALITY IS RELATED TO DRUG
ABUSE AND FOR WHOM REHABILITATION IS DETERMINED TO BE FEASIBLE, COMPRE-
HENSIVE, INTENSELY SUPERVISED DRUG PUNISHMENT TREATMENT PROGRAM BEDS
SHALL BE PROVIDED AS PART OF A CONCERTED EFFORT TO REDUCE THE RECIDIVISM
RATES OF THESE OFFENDERS.
3. THE LEGISLATURE RECOGNIZES THAT, IN ORDER TO ENSURE MAXIMUM INCAR-
CERATION OF VIOLENT OFFENDERS, THE REALITIES OF ECONOMICS AND PRISON
SPACE REQUIRE THAT NONVIOLENT OFFENDERS WHO ARE ASSESSED AS REHABILITAT-
ABLE TO BE REHABILITATED PRIOR TO REINTEGRATION INTO SOCIETY SO THAT
THEY WILL BE FACTORED OUT OF THIS STATE'S PRISON PROBLEM, AND FURTHER
RECOGNIZES THAT TO THIS END ENHANCED, COMPREHENSIVE TREATMENT PROGRAMS
WITH LONG-TERM PROSPECTS FOR REDUCING CRIME IN THIS STATE'S COMMUNITIES
MUST BE DEVELOPED AND COMMUNITY RESOURCES FOR THE TREATMENT AND REHABIL-
ITATION OF OFFENDERS FROM THE COMMUNITY MUST BE EXPANDED.
4. THE LEGISLATURE FINDS THAT VICTIM RESTITUTION IS AN IMPORTANT PART
OF A COMPREHENSIVE TREATMENT PROGRAM FOR REHABILITATABLE NONVIOLENT
OFFENDERS, AND IT IS THE INTENT OF THE LEGISLATURE THAT VICTIM RESTITU-
TION BE MADE, WHERE POSSIBLE AND WHERE AGREED TO BY THE VICTIM. THERE-
FORE, WHEN APPROPRIATE TO TREATMENT AND APPROVED BY THE COURT, IT IS THE
INTENT OF THE LEGISLATURE THAT VICTIM RESTITUTION BE REQUIRED.
5. THE LEGISLATURE RECOGNIZES THAT:
(A) THE STATE'S NONVIOLENT PRISON POPULATION EXISTS PRIMARILY BECAUSE
OF DRUG ABUSE, WHICH THE LEGISLATURE FINDS MUST BE COUNTERED IN ORDER TO
REDUCE THE ESCALATING CRIME RATE.
(B) THE STATE'S CORRECTIONAL SYSTEM IS LIMITED IN ITS DRUG ABUSE
TREATMENT EFFICACY BECAUSE:
(1) MOST OFFENDERS WHO NEED DRUG ABUSE TREATMENT AND WHO ARE AMENABLE
TO INTERVENTION EFFORTS ARE NOT IN THE DEPARTMENT'S CUSTODY FOR A SUFFI-
CIENT TIME TO ACCOMPLISH THE INITIAL OBJECTIVE OF BREAKING THE CYCLE OF
DRUG DEPENDENCE.
(2) TREATMENT EFFECTIVENESS IS REDUCED BY THE AVAILABILITY OF DRUGS IN
PRISONS.
(3) THE STATE'S CORRECTIONAL SYSTEM DOES NOT PROVIDE THE FOLLOW UP
SURVEILLANCE OR AFTERCARE NECESSARY TO MAINTAIN POSITIVE DRUG ABUSE
TREATMENT OUTCOMES.
6. IT IS THE INTENT OF THE LEGISLATURE THAT NONVIOLENT FELONY OFFEN-
DERS WITH DRUG ABUSE PROBLEMS WHO ARE PLACED ON PROBATION AND WHO ARE
FOUND BY THE COURT TO BE GOOD CANDIDATES FOR REHABILITATION RECEIVE DRUG
ABUSE ASSESSMENT, AND, WHERE INDICATED, TREATMENT, INTENSIVE SUPER-
VISION, AND LIFE SKILLS REHABILITATION WHILE CONFINED IN SECURE
SETTINGS.
7. IT IS THE INTENT OF THE LEGISLATURE THAT:
(A) A DRUG PUNISHMENT PROGRAM BE PROVIDED FOR ELIGIBLE DRUG OFFENDERS
WHO ARE NOT MANAGING THEIR DRUG ABUSE PROBLEM EFFECTIVELY WITHIN AVAIL-
ABLE COMMUNITY PROGRAMS UNDER TRADITIONAL PROBATION SUPERVISION AND WHO
WOULD NOT CURRENTLY REQUIRE RELOCATION TO PRISON IF A MORE SECURE
PROBATION ALTERNATIVE WERE AVAILABLE TO THE COURTS.
A. 2808 22
(B) A MECHANISM BE ESTABLISHED WHEREBY STATE FUNDS ARE PROVIDED TO
QUALIFIED, LICENSED ALCOHOL AND DRUG TREATMENT AGENCIES TO DEVELOP A
RANGE OF COMMUNITY-BASED DRUG PUNISHMENT TREATMENT PROGRAMS FOR ELIGIBLE
OFFENDERS UNDER THIS ARTICLE.
S 435.20 DEFINITIONS.
AS USED IN THIS ARTICLE:
1. "DRUG OFFENDER" OR "OFFENDER" MEANS A NONVIOLENT FELONY OFFENDER
WHO IS PLACED ON PROBATION AND WHO MEETS THE FOLLOWING CRITERIA:
(A) IS CONVICTED ON THE OFFENSE OF OR HAS ADJUDICATION WITHHELD FOR
FELONY POSSESSION OR PURCHASE OF A CONTROLLED SUBSTANCE PURSUANT TO
ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW AND HAS BEEN CONVICTED OF OR
HAD ADJUDICATION WITHHELD FOR AT LEAST ONE BUT NOT MORE THAN TWO FELONY
DRUG OFFENSES PURSUANT TO ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW,
NONE OF WHICH CONSTITUTES A VIOLENT FELONY OFFENSE AS DEFINED IN SECTION
70.02 OF THE PENAL LAW; AND
(B) (1) IS BELIEVED BY THE COURT, BASED UPON REASONABLE GROUNDS, TO
HAVE ENGAGED IN CRIMINAL ACTIVITY DUE TO DRUG ABUSE; OR
(2) HAS VOLUNTARILY ADMITTED TO DRUG ABUSE AND HAS REQUESTED TREAT-
MENT; AND
(C) IS CHARGED WITH, OR HAS BEEN FOUND GUILTY OF A VIOLATION OF
PROBATION ARISING DIRECTLY FROM SUSPECTED OR CONFIRMED DRUG ABUSE;
(D) (1) HAS EXPERIENCED DIFFICULTY IN, OR IS NOT AMENABLE TO, PARTIC-
IPATING IN A COMMUNITY DRUG ABUSE TREATMENT PROGRAM, AND REQUIRES A MORE
RESTRICTIVE TREATMENT SETTING; OR
(2) AN APPROPRIATE COMMUNITY DRUG ABUSE TREATMENT PROGRAM IS CURRENTLY
UNAVAILABLE.
2. "COMPREHENSIVE ASSESSMENT" OR "ASSESSMENT" MEANS THE GATHERING OF
INFORMATION NECESSARY TO EVALUATE AN OFFENDER'S PHYSICAL, PSYCHOLOGICAL,
EDUCATIONAL, VOCATIONAL, AND SOCIAL CONDITION AND FAMILY ENVIRONMENT AS
THEY RELATE TO HIS ELIGIBILITY AND NEED FOR, AND AMENABILITY TO, DRUG
PUNISHMENT TREATMENT SERVICES.
3. "DEPARTMENT" MEANS THE DEPARTMENT OF CORRECTIONAL SERVICES.
4. "REHABILITATIVE PUNISHMENT" MEANS DRUG TREATMENT SERVICES PROVIDED
IN COMBINATION WITH SUCH REHABILITATIVE SERVICES AS COUNSELING, EDUCA-
TION, AND VOCATIONAL, PARENTING, AND LIFE SKILLS TRAINING IN AN ENVIRON-
MENT OF PHASED DECREASING RESTRICTIVENESS, WITH PUNISHMENT COMPONENTS
SUCH AS VICTIM RESTITUTION AND DRUG ABUSE TESTING TO ASSIST IN THE REHA-
BILITATION OF THE DRUG OFFENDER.
5. "DESIGNATED FACILITY" OR "DESIGNATED DRUG TREATMENT FACILITY OR
COMMUNITY" MEANS ANY INSTITUTION, SECURE OR NONSECURE RESIDENTIAL OR
NONRESIDENTIAL FACILITY, OR TREATMENT COMMUNITY DESIGNATED TO PROVIDE
REHABILITATIVE PUNISHMENT AND DRUG TREATMENT SERVICES TO OFFENDERS
PURSUANT TO THIS ARTICLE.
6. "DRUG PUNISHMENT PROGRAM" OR "PROGRAM" MEANS A REHABILITATIVE
PUNISHMENT PROGRAM ADMINISTERED BY A STATEWIDE PROGRAM MANAGER IN TREAT-
MENT COMMUNITIES WITHIN THE JUDICIAL CIRCUITS THROUGH LICENSED ALCOHOL
AND DRUG ABUSE SERVICES AND PROGRAMS PROVIDED FOR ELIGIBLE DRUG OFFEN-
DERS WHO OTHERWISE COULD HAVE BEEN INCARCERATED IN THE STATE CORRECTION-
AL SYSTEM. "DRUG PUNISHMENT" INCLUDES CUSTODIAL AND NONCUSTODIAL DRUG
TREATMENT PHASES WITH EXTENDED CARE AS REQUIRED OR NEEDED, INDIVIDUAL-
IZED ASSESSMENT AND TREATMENT SERVICES, GUIDANCE, TRAINING, AND OTHER
REHABILITATIVE PUNISHMENT AND TREATMENT SERVICES IN AREAS SUCH AS
HEALTH, EDUCATION, VOCATIONAL TRAINING, SPECIAL EDUCATION, SOCIAL
SERVICES, AND PSYCHOLOGICAL COUNSELING. NO DRUG PUNISHMENT PROGRAM SHALL
BE APPROVED WHICH HAS A RESIDENTIAL CAPACITY OF ONE HUNDRED FIFTY OR
A. 2808 23
MORE OFFENDERS IN ANY ONE PHASE. NO PROGRAM PROVIDER SHALL BE ELIGIBLE
FOR MORE THAN THREE CONTRACTS STATEWIDE.
7. "STATEWIDE PROGRAM MANAGER" OR "PROGRAM MANAGER" MEANS A
NOT-FOR-PROFIT ORGANIZATION SELECTED BY THE DEPARTMENT AS THE STATEWIDE
MANAGER OF THE DRUG PUNISHMENT PROGRAM SERVICE PROVIDERS. THE STATEWIDE
PROGRAM MANAGER SHALL BE EXPERIENCED IN DRUG ABUSE PROGRAMMING AND
TREATMENT OF OFFENDERS INVOLVED WITH DRUGS AND SHALL OPERATE UNDER
CONTRACT WITH THE DEPARTMENT PURSUANT TO SECTION 435.25 OF THIS ARTICLE.
THE STATEWIDE PROGRAM MANAGER SHALL NOT BE A RECIPIENT OF CONTRACTUAL
SERVICES FOR THE ASSESSMENT, TREATMENT, OR EVALUATION OF OFFENDERS UNDER
THIS ARTICLE.
8. "DRUG ABUSE" MEANS ABUSE OF ANY DRUG, INCLUDING ALCOHOL.
9. "APPLICATION PROCESS AND PROCEDURES" MEANS THE CRITERIA AND GUIDE-
LINES DEVELOPED BY THE DEPARTMENT FOR THE ESTABLISHMENT OF DRUG PUNISH-
MENT PROGRAMS, THE GRANTING OF FUNDS FOR PROGRAMS AUTHORIZED BY THIS
ARTICLE, AND THE MONITORING, EVALUATION, AND REVIEW OF PROGRAMS FUNDED
UNDER THIS ARTICLE.
10. "DRUG PUNISHMENT PLAN" OR "PLAN" MEANS A DOCUMENT PREPARED BY THE
DRUG OFFENDER ADVISORY BOARD, AND SUBMITTED TO AND APPROVED BY THE
DEPARTMENT, WHICH IDENTIFIES PROPOSED DRUG PUNISHMENT PROGRAMS TO BE
IMPLEMENTED IN ACCORDANCE WITH THIS ARTICLE AND WHICH JUSTIFIES THE
FUNDING OF SUCH PROGRAMS WITH REGARD TO LOCAL NEED AND COMMUNITY
SUPPORT. INDIVIDUALIZED DRUG PUNISHMENT PLANS FOR EACH DRUG OFFENDER,
AND A DRUG PUNISHMENT PLAN FOR EACH PROGRAM PROVIDER, SHALL BE DEVELOPED
IN ACCORDANCE WITH THE STATEWIDE DRUG PUNISHMENT PLAN.
11. "RECIPIENT" INCLUDES ANY ENTITY RECEIVING, DIRECTLY OR INDIRECTLY,
AND ANY FINANCIAL AID UNDER THIS ARTICLE.
12. "COMMISSIONER" MEANS THE COMMISSIONER OF CORRECTIONAL SERVICES.
13. "PROGRAM EVALUATOR" MEANS A NONPROFIT PUBLIC AGENCY WHICH IS NOT A
PROVIDER OF DRUG PUNISHMENT PROGRAM SERVICES OR THE STATEWIDE DRUG
PUNISHMENT PROGRAM MANAGER AND WHICH HAS SUBSTANTIAL EXPERTISE IN THE
STATISTICAL ANALYSIS OF ISSUES OF LAW, MENTAL HEALTH, DRUG ABUSE TREAT-
MENT PROCEDURES, VICTIMS' AND INMATES' RIGHTS, AND PROGRAM OUTCOME AND
COST-EFFECTIVENESS MEASUREMENT. SUCH AGENCY OR ORGANIZATION SHALL ALSO
BE EXPERIENCED IN WORKING WITH THE DEPARTMENT.
S 435.25 DRUG PUNISHMENT PROGRAM CONTRACTS; PROGRAM MANAGER AND ASSESS-
MENT AND TREATMENT PROVIDERS.
1. PURSUANT TO THE PROVISIONS OF THIS ARTICLE, CONTRACTS WHICH INCLUDE
SAFEGUARDS OF ALL CONSTITUTIONAL RIGHTS AFFORDED INMATES SHALL BE
ENTERED INTO FOR DRUG PUNISHMENT PROGRAMS.
2. THE DEPARTMENT SHALL SELECT A STATEWIDE PROGRAM MANAGER AND SHALL
CONTRACT WITH SUCH PROGRAM MANAGER FOR:
(A) THE OVERSIGHT OF IMPLEMENTATION OF DRUG PUNISHMENT PROGRAM ASSESS-
MENT AND TREATMENT APPROACHES.
(B) THE IDENTIFICATION AND PREQUALIFICATION, BY SUBMISSION FOR RECOM-
MENDATION BY THE DRUG OFFENDER ADVISORY BOARD, OF LICENSED ORGANIZA-
TIONS, INCLUDING MINORITY ORGANIZATIONS WHEN POSSIBLE, TO PROVIDE DRUG
PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT SERVICES.
(C) THE QUALITY ASSURANCE MONITORING OF ALL DRUG PUNISHMENT ASSESSMENT
AND TREATMENT PROGRAMS AND SERVICES, THE TRAINING OF DRUG PUNISHMENT
PROGRAM PROVIDERS AND PERSONNEL, AND THE DEVELOPMENT OF TREATMENT MANU-
ALS FOR EACH MAJOR COMPONENT OF THE CORE TREATMENT PROGRAM PURSUANT TO
SECTION 435.65, IN COOPERATION WITH THE DRUG OFFENDER ADVISORY BOARD AND
IN COMPLIANCE WITH THE PROVISIONS OF THIS ARTICLE AND ALL APPLICABLE
RULES AND GUIDELINES PURSUANT THERETO.
A. 2808 24
(D) THE PROVISION OF ASSISTANCE TO DRUG PUNISHMENT PROGRAM ASSESSMENT
AND TREATMENT PROVIDERS IN DEVELOPING TREATMENT COMMUNITY DESIGN PURSU-
ANT TO SECTION 435.60 OF THIS ARTICLE.
(E) THE DEVELOPMENT OF AN ANNUAL REPORT ON THE PERFORMANCE OF THE DRUG
PUNISHMENT PROGRAM, TO BE PRESENTED TO THE DRUG OFFENDER ADVISORY BOARD,
THE DEPARTMENT, THE PROGRAM EVALUATOR, THE GOVERNOR, THE PRESIDENT OF
THE SENATE, AND THE SPEAKER OF THE ASSEMBLY NO LATER THAN JANUARY FIRST
OF EACH YEAR.
3. ASSESSMENT AND TREATMENT OF OFFENDERS PURSUANT TO DRUG PUNISHMENT
PROGRAM CONTRACTS UNDER THIS ARTICLE SHALL BE CONDUCTED BY QUALIFIED
LICENSED AGENCIES, WHICH SHALL EXERCISE ALL PROFESSIONAL JUDGMENT INDE-
PENDENTLY OF THE DEPARTMENT.
4. (A) THE DEPARTMENT SHALL CONTRACT WITH ORGANIZATIONS FOR DRUG
PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT SERVICES.
(B) DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT PROVIDERS SHALL
BE SELECTED WHO HAVE THE CAPACITY TO ASSESS AND TREAT THE UNIQUE PROB-
LEMS PRESENTED BY OFFENDERS WITH DIFFERENT RACIAL AND ETHNIC BACK-
GROUNDS.
5. THE DEPARTMENT SHALL CONTRACT WITH A PROGRAM EVALUATOR FOR THE
EVALUATION PROGRAM.
6. THE DEPARTMENT SHALL RETAIN CONTRACTUAL AUTHORITY TO REJECT ANY
ASSESSMENT OR TREATMENT PROVIDER FOR LACK OF QUALIFICATION FOR THE DRUG
PUNISHMENT PROGRAM OR FOR PROGRAM CONTRACT NONCOMPLIANCE, OR AS A RESULT
OF AN UNSATISFACTORY EVALUATION BY THE DRUG OFFENDER ADVISORY BOARD
PURSUANT TO SECTION 435.70 OF THIS ARTICLE, THE STATEWIDE PROGRAM MANAG-
ER, OR THE PROGRAM EVALUATOR.
7. THE DEPARTMENT SHALL RETAIN CONTRACTUAL AUTHORITY TO REJECT THE
STATEWIDE PROGRAM MANAGER BASED ON UNSATISFACTORY EVALUATION OF THE
PROGRAM MANAGER OR THE DRUG PUNISHMENT PROGRAM BY THE DRUG OFFENDER
ADVISORY BOARD BASED ON UNSATISFACTORY EVALUATION OF THE DRUG PUNISHMENT
PROGRAM BY THE PROGRAM EVALUATOR, OR FOR CONTRACT NONCOMPLIANCE.
8. THE DEPARTMENT MAY PROMULGATE RULES AS NECESSARY FOR THE IMPLEMEN-
TATION OF THIS SECTION.
S 435.30 DRUG PUNISHMENT PROGRAM.
1. THERE IS CREATED THE DRUG PUNISHMENT PROGRAM FOR OFFENDERS WHO ARE
SELECTED BASED ON CRIMINAL ACTIVITY LINKED TO DRUG ABUSE AND AMENABILITY
TO DRUG PUNISHMENT IN A PHASED TREATMENT PROGRAM OF SLOWLY DECREASING
INTENSITY.
2. THE FOLLOWING PRINCIPLES SHALL GUIDE THE EFFECTIVE TREATMENT OF
OFFENDERS UNDER THE DRUG PUNISHMENT PROGRAM:
(A) CLEAR CONSEQUENCES FOR BEHAVIOR.
(B) INITIAL ISOLATION FROM THE GENERAL OFFENDER POPULATION.
(C) ENCOURAGEMENT OF ANTI-CRIMINAL MODELING AND REINFORCEMENT OF PRO-
SOCIAL BEHAVIOR.
(D) PROMOTION OF PROBLEM-SOLVING SKILLS.
(E) REINFORCEMENT OF COGNITIVE-BEHAVIORAL STRATEGIES.
(F) UTILIZATION OF MULTIMODAL TREATMENT APPROACHES.
(G) GROUP REHABILITATIVE PUNISHMENT AND TREATMENT FORMAT.
(H) HIGHLY STRUCTURED REHABILITATIVE PUNISHMENT AND TREATMENT MILIEU.
(I) ALLOWANCE FOR INTENSIVE AND LENGTHY INVOLVEMENT IN THE DRUG
PUNISHMENT PROGRAM.
(J) GRADUATED REENTRY TO THE COMMUNITY.
3. THE FOLLOWING INTERVENTIONS, AS ESSENTIAL COMPONENTS OF EFFECTIVE
DRUG PUNISHMENT, SHALL BE ADDRESSED IN DEVELOPING A COMPREHENSIVE DRUG
PUNISHMENT PROGRAM:
(A) ASSESSMENT.
A. 2808 25
(B) DRUG ABUSE EDUCATION.
(C) SKILLS-BASED INTERVENTIONS.
(D) RELAPSE PREVENTION.
(E) FREQUENT DRUG TESTING.
(F) AIDS EDUCATION.
4. IF THE DRUG PUNISHMENT PROGRAM IS DISCONTINUED, OR SO MODIFIED AS
TO BE UNSUITABLE TO THE DRUG OFFENDER'S TREATMENT NEEDS, THE COURT MAY
IMPOSE ANY APPROPRIATE SENTENCE WHICH IT MIGHT HAVE ORIGINALLY IMPOSED
BEFORE PLACING THE DRUG OFFENDER INTO THE DRUG PUNISHMENT PROGRAM.
5. THE DISTRICT ATTORNEY, VICTIM, DEFENSE ATTORNEY, PAROLE OR
PROBATION OFFICER, AND LOCAL DRUG PUNISHMENT PROGRAM PROVIDER SHALL BE
CONSULTED REGARDING POTENTIAL REFERRALS TO A DRUG PUNISHMENT PROGRAM;
HOWEVER, THE COURT SHALL MAKE THE FINAL DECISION AS TO REFERRALS.
6. THE COURT SHALL ORDER RESTITUTION WHEN APPROPRIATE AS A CONDITION
OF A DRUG PUNISHMENT PROGRAM PLACEMENT AND SHALL REQUIRE A FINANCIALLY
ABLE DRUG OFFENDER TO PAY FOR ALL OR A PORTION OF THE COST OF HIS
PARTICIPATION IN THE DRUG PUNISHMENT PROGRAM AND DRUG TESTING.
7. THE COURT MAY, UPON RECOMMENDATION OF THE DRUG PUNISHMENT PROGRAM
PROVIDER, REQUIRE THE DRUG OFFENDER TO PARTICIPATE IN COMMUNITY-BASED
AFTERCARE SERVICES AFTER SATISFACTORY COMPLETION OF THE DRUG PUNISHMENT
PROGRAM.
8. NOTHING IN THIS ARTICLE SHALL PREVENT A COURT FROM SENTENCING A
PERSON CONVICTED OF A FELONY DRUG OFFENSE AS OTHERWISE PROVIDED BY LAW.
S 435.35 DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT OVERVIEW AND
GOALS.
ASSESSMENT OF OFFENDERS FOR THE DRUG PUNISHMENT PROGRAM SHALL INCLUDE
MULTITIERED SCREENING DESIGNED TO SELECT OFFENDERS WHOSE CRIMINAL ACTIV-
ITY IS LINKED TO DRUG ABUSE AND WHO ARE AMENABLE TO DRUG PUNISHMENT
PROGRAM TREATMENT. ENTRY INTO THE DRUG PUNISHMENT PROGRAM COMMENCES WITH
THE SCREENING OF OFFENDERS FOR ELIGIBILITY USING THE CRITERIA OF SUBDI-
VISION ONE OF SECTION 435.20 OF THIS ARTICLE. OFFENDERS WHO HAVE BEEN
REFERRED BY A JUDGE OR PROBATION OFFICER AS ELIGIBLE FOR ASSESSMENT FOR
THE PROGRAM ARE ASSESSED BY A DRUG PUNISHMENT PROGRAM COMMUNITY ASSESS-
MENT PROVIDER. THE FINAL ASSESSMENT REPORT ISSUED BY THE PROVIDER SHALL
BE PROVIDED TO THE PROBATION OFFICER AND THE COURT, AND SHALL GUIDE THE
COURT IN ESTABLISHING OR MODIFYING THE CONDITIONS OF PROBATION OF AN
OFFENDER WHO IS ASSESSED AS ELIGIBLE FOR PLACEMENT IN THE DRUG PUNISH-
MENT PROGRAM.
1. ASSESSMENT GOALS. SPECIFIC ASSESSMENT GOALS OF THE DRUG PUNISHMENT
PROGRAM INCLUDE, BUT ARE NOT LIMITED TO:
(A) IDENTIFYING OFFENDERS WHO ARE LIKELY TO BENEFIT FROM DRUG PUNISH-
MENT PROGRAM TREATMENT DUE TO AN EARLY ONSET OF DRUG ABUSE AND A PATTERN
OF CRIMINALITY COMBINED WITH DRUG ABUSE AND WHO, THEREFORE, PRESENT THE
GREATEST RISK OF RECIDIVISM WITHIN THE CRIMINAL JUSTICE SYSTEM.
(B) DISCOURAGING ADMISSION OF OFFENDERS WHO PRESENT AN UNREASONABLE
THREAT TO THE COMMUNITY IF DIVERTED FROM A PRISON BED TO THE DRUG
PUNISHMENT PROGRAM.
(C) PREVENTING ADMISSION OF DRUG OFFENDERS WHO CAN BE TREATED EFFEC-
TIVELY IN LESS RESTRICTIVE PROGRAMS.
(D) PROVIDING DIAGNOSTIC INFORMATION AND PSYCHOSOCIAL HISTORY SUFFI-
CIENT TO ENABLE DRUG PUNISHMENT PROGRAM TREATMENT STAFF TO IDENTIFY
POTENTIAL BEHAVIOR PROBLEMS AND OTHER PROBLEM AREAS FOR THE DRUG OFFEN-
DER WHICH SHOULD BE ASSESSED IN MORE DETAIL DURING DRUG PUNISHMENT
PROGRAM INTAKE AND TREATMENT PLANNING.
(E) PROVIDING A TIMELY AND INFORMATIVE REPORT TO THE PROBATION OFFICER
AND THE COURT DESCRIBING A REFERRED DRUG OFFENDER'S DRUG PUNISHMENT
A. 2808 26
PROGRAM ELIGIBILITY STATUS AND ANY RECOMMENDATIONS FOR TREATMENT FOR THE
DRUG OFFENDER.
2. TREATMENT GOALS. SPECIFIC TREATMENT GOALS OF THE DRUG PUNISHMENT
PROGRAM INCLUDE, BUT ARE NOT LIMITED TO:
(A) REDUCTION OF CRIMINAL RECIDIVISM.
(B) REDUCTION OF DRUG ABUSE, WITH ABSTINENCE AS THE GOAL FOR EACH DRUG
OFFENDER.
(C) DEVELOPMENT OF EMPLOYMENT SKILLS AND ATTAINMENT OF MEANINGFUL
EMPLOYMENT.
(D) DEVELOPMENT OF A POSITIVE PEER SUPPORT NETWORK, AND ONGOING
PARTICIPATION IN SERVICES TO MAINTAIN TREATMENT PROGRESS.
(E) ENHANCEMENT OF EDUCATIONAL SKILLS, SELF-CARE AND SELF-SUFFICIENCY
CAPABILITIES, AND PARENTING SKILLS.
S 435.40 DUTIES OF DEPARTMENT.
THE DEPARTMENT SHALL:
1. ADMINISTER THIS ARTICLE TO EFFECTUATE THE INTENT AND PURPOSE
MANDATED BY THE LEGISLATURE.
2. CONDUCT STATEWIDE PUBLIC EDUCATION CONCERNING THE INTENT AND
PURPOSE OF THIS ARTICLE AND DELIVER A REPORT TO THE PRESIDENT OF THE
SENATE AND THE SPEAKER OF THE ASSEMBLY REGARDING THE EFFECTIVENESS OF
DIVERTING OFFENDERS WHO OTHERWISE COULD HAVE BEEN INCARCERATED IN STATE
CORRECTIONAL INSTITUTIONS.
3. PROVIDE TECHNICAL ASSISTANCE NECESSARY TO THE IMPLEMENTATION OF
THIS ARTICLE TO LICENSED NONPROFIT AGENCIES.
4. ASSIST THE DRUG OFFENDER ADVISORY BOARD IN PREPARATION OF THE
STATEWIDE DRUG PUNISHMENT PLAN.
5. DEVELOP MINIMUM STANDARDS, POLICIES AND ADMINISTRATIVE RULES FOR
THE IMPLEMENTATION OF APPROVED RECOMMENDATIONS OF THE DRUG OFFENDER
ADVISORY BOARD.
6. DEVELOP AN APPLICATION PROCESS AND THE PROCEDURES NEEDED FOR IMPLE-
MENTATION.
7. APPROVE THOSE PROVIDERS WHO MEET OR EXCEED THE MINIMUM STANDARDS
ESTABLISHED BY THE DRUG OFFENDER ADVISORY BOARD IN THE APPROVED DRUG
PUNISHMENT PLAN.
8. CONDUCT AN ANNUAL OVERALL PROGRAM REVIEW, INCLUDING REVIEW OF THE
EVALUATION PROGRAM AND MONITORING OF EACH TREATMENT PROGRAM AS OFTEN AS
NEEDED TO ENSURE PROGRAM ACCOUNTABILITY.
9. PROVIDE, BY RULE, UNIFORM STANDARDS AND PROCEDURES FOR THE INITI-
ATION OF INITIAL SCREENING FOR DRUG OFFENDERS BY PROBATION OFFICERS OF
THE DEPARTMENT. PROCEDURES SHALL INCLUDE SUBMISSION OF THE SCREENING
REFERRAL TO THE COURT PRIOR TO THE COMMENCEMENT OF ANY ASSESSMENT PROCE-
DURES.
S 435.45 DRUG PUNISHMENT PROGRAM FUNDS; ACCOUNTING; AUDITS.
1. ELIGIBILITY OF DRUG TREATMENT PLANS FOR FINANCIAL AID.
(A) A LICENSED TREATMENT AGENCY MAY BE ELIGIBLE FOR DIRECT DRUG
PUNISHMENT PROGRAM FINANCIAL AID UNDER THIS ARTICLE AFTER APPROVAL BY
THE DRUG OFFENDER ADVISORY BOARD. UPON APPROVAL BY THE BOARD, THE APPLI-
CATION SHALL BE TRANSMITTED TO THE DEPARTMENT, WHICH SHALL HAVE THIRTY
DAYS TO ENDORSE OR REJECT THE BOARD'S APPROVAL. REJECTION OF THE BOARD'S
APPROVAL SHALL BE FOR CAUSE, AND THE DEPARTMENT SHALL CLEARLY STATE THE
REASONS IN WRITING. FAILURE OF THE DEPARTMENT TO RESPOND WITHIN THE
THIRTY-DAY PERIOD SHALL BE DEEMED AN ENDORSEMENT.
(B) IN ORDER TO RECEIVE FUNDING, AN ELIGIBLE ENTITY SHALL SUBMIT AN
APPLICATION TO THE DEPARTMENT, WHICH INCLUDES A DRUG PUNISHMENT PLAN, AN
ACCEPTABLE SITE, FACILITY DESIGN WITH CONSTRUCTION DOCUMENTS AND SPEC-
IFICATIONS, A CONSTRUCTION BUDGET, AND A FINANCING PLAN WITH SOURCES OF
A. 2808 27
EQUITY AND DEBT AND SCHEDULES FOR DELIVERY. SUCH FUNDING APPLICATION
SHALL BE PROVIDED TO THE STATEWIDE PROGRAM MANAGER AT THE TIME OF
PREQUALIFICATION, AND THE PROGRAM MANAGER SHALL PREQUALIFY THE ENTITY
ONLY AFTER ASCERTAINING THAT THE APPLICATION CONTAINS ALL REQUIRED MATE-
RIALS.
(C) APPLICATIONS FOR FINANCIAL AID MUST CONTAIN AN ESTIMATE OF THE
COST OF THE PROGRAM OR, IN LIEU THEREOF, A SPECIFIC FORMULA OR METHOD
FOR CALCULATING THE NEEDED AMOUNT OF FUNDING.
2. COMMUNITY-BASED TREATMENT OPTIONS AND SERVICES.
(A) DRUG PUNISHMENT PROGRAM FUNDS MAY BE USED TO DEVELOP OR EXPAND THE
RANGE OF COMMUNITY DRUG TREATMENT SERVICES FOR THE DRUG PUNISHMENT
PROGRAM AT THE LOCAL LEVEL. COMMUNITY-BASED DRUG PUNISHMENT PROGRAM
OPTIONS MAY INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING:
(1) SHORT-TERM AND LONG-TERM RESIDENTIAL TREATMENT OPTIONS IN ACCORD-
ANCE WITH SECTION 435.55 OF THIS ARTICLE WITH EXTENDED ONGOING CARE AS
NEEDED, WHICH INVOLVE CLOSE SUPERVISION IN A RESIDENTIAL SETTING.
(2) ENROLLMENT OF DRUG OFFENDERS IN RESIDENTIAL INPATIENT OR OUTPA-
TIENT ALCOHOL OR DRUG ABUSE TREATMENT CENTERS FOR DETOXIFICATION AND
THERAPY. ENROLLMENT SHALL BE BASED UPON AN ASSESSMENT PURSUANT TO THIS
ARTICLE THAT A PARTICIPANT IS A DRUG OFFENDER AND REQUIRES DETOXIFICA-
TION. HOWEVER, FINANCIAL AID FOR DETOXIFICATION SERVICES SHALL ONLY BE
MADE FOR INPATIENT SERVICES, AND DETOXIFICATION SHALL BE COMPLETED PRIOR
TO PHASE I OF TREATMENT.
(3) INDIVIDUALIZED SERVICES WHICH ASSESS AND TREAT THE SPECIAL NEEDS
OF OFFENDERS ELIGIBLE UNDER THIS ARTICLE. SERVICES TO THE COURT TO
ASSIST IN THE ASSESSMENT OF ELIGIBLE OFFENDERS MAY INCLUDE URINE SCREEN-
ING AND THE PURCHASE OF PSYCHOLOGICAL, MEDICAL, EDUCATIONAL, VOCATIONAL,
DRUG, ALCOHOL, AND CLIENT-SPECIFIC PLAN DIAGNOSTIC EVALUATIONS. OTHER
SERVICES WHICH MAY BE PURCHASED ON AN INDIVIDUALIZED BASIS INCLUDE JOB
TRAINING, DRUG AND ALCOHOL COUNSELING, INDIVIDUAL COUNSELING, FAMILY
COUNSELING, HIGH SCHOOL GRADUATE EQUIVALENCY DIPLOMA CLASSES, AND NECES-
SARY TRANSPORTATION EXPENSES, TO BE PROVIDED IN PHASES I, II, AND III OF
THE DRUG PUNISHMENT PROGRAM.
THESE COMMUNITY-BASED OPTIONS SHALL BE USED IN CONJUNCTION WITH OTHER
COMMUNITY PROBATION SUPERVISION PROGRAMS.
(B) THE SERVICES AVAILABLE UNDER THIS ARTICLE MAY BE CONTRACTED TO
QUALIFIED, LICENSED AGENCIES OR ENTITIES.
(C) ANY OPTIONS OR SERVICES ESTABLISHED UNDER THIS ARTICLE SHALL SERVE
DRUG OFFENDERS FROM THE ENTIRE JUDICIAL CIRCUIT.
(D) USER FEES PAID BY A DRUG OFFENDER PARTICIPATING IN ANY OPTION OR
SERVICE ESTABLISHED UNDER THIS ARTICLE SHALL NOT SUPPLANT OR OTHERWISE
INTERFERE WITH THE PAYMENT OF RESTITUTION BY THE DRUG OFFENDER TO THE
VICTIM OF THE CRIME.
3. LIMITATIONS ON THE USE OF FUNDS; ACCOUNTING; AUDIT.
(A) DRUG PUNISHMENT PROGRAM FUNDS, WITH THE EXCEPTION OF SURPLUS FUNDS
UNDER PARAGRAPH (C) OF SUBDIVISION FOUR OF THIS SECTION, SHALL NOT BE
USED TO:
(1) SUPPLANT EXISTING STATE CORRECTIONAL SYSTEM PROGRAMS;
(2) CONSTRUCT, RENOVATE, OR OPERATE LOCAL CORRECTIONAL FACILITIES; OR
(3) CONSTRUCT, RENOVATE, OR OPERATE STATE PRISONS.
(B) ADMINISTRATIVE COSTS CONNECTED WITH THE EXPENDITURE OF DRUG
PUNISHMENT PROGRAM FUNDS UNDER THIS ARTICLE SHALL NOT EXCEED A PERCENT-
AGE AMOUNT ESTABLISHED BY THE COMMISSIONER IN CONSULTATION WITH THE DRUG
OFFENDER ADVISORY BOARD.
(C) THE CHIEF INTERNAL AUDITOR OF THE DEPARTMENT IS DIRECTED TO DEVEL-
OP, SUBJECT TO APPROVAL OF THE COMMISSIONER, A UNIFORM ACCOUNTING SYSTEM
A. 2808 28
CONFORMING TO GENERALLY ACCEPTED ACCOUNTING PRINCIPLES FOR THE LOCAL
DRUG PUNISHMENT TREATMENT PROGRAMS OPERATING UNDER THE PROVISIONS OF
THIS ARTICLE, AND EACH DRUG PUNISHMENT TREATMENT PROGRAM SHALL ESTABLISH
AND MAINTAIN THE UNIFORM ACCOUNTING SYSTEM.
(D) (1) THE ANNUAL REPORTS AND ALL BOOKS OF ACCOUNTS AND FINANCIAL
RECORDS OF ALL FUNDS RECEIVED BY GRANT, CONTRACT, OR OTHERWISE FROM
STATE, LOCAL, OR FEDERAL SOURCES SHALL BE SUBJECT TO AUDIT ANNUALLY BY
THE COMPTROLLER OR THE CHIEF INTERNAL AUDITOR OF THE DEPARTMENT. THE
AUDIT MAY BE PERFORMED BY A LICENSED INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANT SELECTED BY THE DRUG PUNISHMENT PROGRAM. THE COST OF AN AUDIT
PERFORMED BY A LICENSED INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT SHALL BE
PAID BY THE LOCAL RECIPIENT.
(2) ANY AUDIT OF A RECIPIENT SHALL BE PERFORMED BY LICENSED INDEPEND-
ENT CERTIFIED PUBLIC ACCOUNTANTS.
(3) ALL AUDITS SHALL BE COMPLETED AS SOON AS PRACTICABLE AFTER THE END
OF THE FISCAL YEAR OF THE DRUG PUNISHMENT PROGRAM. ONE COPY OF EACH
AUDIT SHALL BE FURNISHED TO THE BOARD, TO THE CHIEF INTERNAL AUDITOR OF
THE DEPARTMENT, TO THE PROGRAM MANAGER, AND TO THE COMPTROLLER. THE
AUDIT IS A PUBLIC RECORD.
4. DRUG PUNISHMENT PLAN; FUNDING CRITERIA; VOLUNTARY PARTICIPATION.
(A) A DRUG PUNISHMENT PLAN SHALL BE DEVELOPED BY THE DRUG OFFENDER
ADVISORY BOARD AND SHALL SUFFICIENTLY DOCUMENT THE LOCAL NEED AND
SUPPORT FOR THE PROPOSED PROGRAMS. THE DRUG OFFENDER ADVISORY BOARD
SHALL SUBMIT ITS PLAN TO THE DEPARTMENT.
(B) THE FORMAT FOR ANY DRUG PUNISHMENT PLAN SHALL BE SPECIFIED BY THE
DEPARTMENT IN THE APPLICATION PROCESS AND PROCEDURES DEVELOPED BY THE
DEPARTMENT.
(C) FUNDING UNDER THIS ARTICLE SHALL BE GRANTED ANNUALLY, WITH THE
DISBURSEMENT OF FUNDS MONTHLY FOLLOWING THE SUBMISSION AND APPROVAL OF
AN EXPENDITURE-MONITORING REPORT AND A PROGRAM-MONITORING REPORT. LOCAL
DRUG PUNISHMENT TREATMENT PROGRAMS ARE ELIGIBLE TO APPLY FOR ANY UNSPENT
FUNDS WHICH EXIST AT THE BEGINNING OF THE FOURTH QUARTER. AT THE END OF
THE FISCAL YEAR, ANY MONEYS UNSPENT BY THE PROGRAM SHALL REVERT IN THE
MANNER PROVIDED BY LAW.
(D) FUNDING UNDER THIS ARTICLE SHALL BE GRANTED ON THE BASIS OF
DOCUMENTATION OF LOCAL DRUG PUNISHMENT PROGRAM NEED, TOGETHER WITH
CONSIDERATION OF WHETHER THE DRUG OFFENDER ADVISORY BOARD'S DRUG PUNISH-
MENT PLAN IS CONSISTENT WITH THE PURPOSE OF THIS ARTICLE, THE GEOGRAPH-
ICAL AND PROGRAM CONSIDERATIONS OF THE STATE, AND FUNDING AVAILABILITY.
IN ADDITION, THE DEPARTMENT SHALL CONSIDER THE FOLLOWING CRITERIA
PERTAINING TO THE COMMUNITY WHEN GRANTING FUNDS UNDER THIS ARTICLE:
(1) THE NUMBER OF ELIGIBLE DRUG OFFENDERS WHO ARE COMMITTED TO THE
DEPARTMENT.
(2) THE POPULATION OF THE COMMUNITY AND THE PERCENTAGE OF POPULATION
BETWEEN THE AGES OF EIGHTEEN AND TWENTY-NINE.
(3) THE AVAILABILITY OF LOCAL DRUG TREATMENT SERVICES.
(4) LOCAL SERVICE CAPABILITY TO SUPPORT THE DRUG PUNISHMENT PROGRAM.
(E) FUNDING AND EVALUATION CRITERIA SHALL BE OUTLINED IN THE APPLICA-
TION PROCESS AND PROCEDURES TO BE DEVELOPED BY THE DEPARTMENT IN ORDER
THAT EACH APPLICANT MAY KNOW THE BASIS UPON WHICH FUNDS WILL BE GRANTED.
(F) PARTICIPATION IN THE PROGRAMS SET FORTH IN THIS ARTICLE IS
CONTRACTUAL AND VOLUNTARY. ANY PARTICIPATING TREATMENT AGENCY MAY, BY
WRITTEN AUTHORIZATION, NOTIFY THE DRUG OFFENDER ADVISORY BOARD, THE
DEPARTMENT, AND THE COMPTROLLER OF ITS INTENTION TO WITHDRAW FROM
PARTICIPATION IN THE DRUG PUNISHMENT PROGRAM. WITHDRAWAL SHALL BECOME
EFFECTIVE ON THE LAST DAY OF THE FISCAL YEAR.
A. 2808 29
5. CONTINUED FUNDING; ADDITIONAL INCENTIVE FUND; NONCOMPLIANCE WITH
PLAN.
(A) IN ORDER TO REMAIN ELIGIBLE FOR CONTINUED FUNDING, A RECIPIENT
MUST SUBSTANTIALLY COMPLY WITH THE STANDARDS AND RULES OF THE DEPARTMENT
CONCERNING PROGRAM EFFECTIVENESS, AND EACH RECIPIENT SHALL PARTICIPATE
IN AN EVALUATION TO DETERMINE LOCAL AND STATE PROGRAM EFFECTIVENESS.
(B) CONTINUED FUNDING SHALL BE BASED ON DEMONSTRATED EFFECTIVENESS IN
REDUCING THE NUMBER OF COMMITMENTS TO STATE CORRECTIONAL INSTITUTIONS
WHICH WOULD LIKELY HAVE OCCURRED WITHOUT THE PROGRAMS FUNDED UNDER THIS
ARTICLE AND ON EVIDENCE THAT THE PROGRAMS ARE NOT DEALING WITH PERSONS
WHO OTHERWISE WOULD HAVE BEEN SUITABLE FOR REGULAR PROBATION.
(C) SUBJECT TO FUNDING AVAILABILITY, EACH PARTICIPATING AGENCY IS
ELIGIBLE TO RECEIVE ADDITIONAL INCENTIVE FUNDING TO EXTEND PROGRAMS TO
OTHER ELIGIBLE DRUG OFFENDERS OR TO ADD NEW DRUG PUNISHMENT PROGRAMS IF
IT EXCEEDS THE OBJECTIVES OF ITS INDIVIDUAL DRUG PUNISHMENT PLAN.
(D) EITHER THE DRUG OFFENDER ADVISORY BOARD OR THE DEPARTMENT MAY AT
ANY TIME DETERMINE THAT THERE ARE REASONABLE GROUNDS TO BELIEVE THAT A
PARTICIPATING AGENCY IS NOT COMPLYING WITH ITS PLAN, OR WITH ANY MINIMUM
STANDARD ESTABLISHED PURSUANT TO THIS ARTICLE, IN WHICH CASE THE BOARD
OR DEPARTMENT SHALL NOTIFY, IN WRITING, THE COMMISSIONER. UPON RECEIPT
OF SUCH NOTICE, THE COMMISSIONER SHALL NOTIFY THE BOARD, THE DEPARTMENT,
THE STATEWIDE PROGRAM MANAGER, AND THE ADMINISTRATOR OF THE PROGRAM, IN
WRITING, THAT A DETERMINATION AS TO COMPLIANCE WILL BE MADE AND THAT THE
PARTICIPATING AGENCY HAS SIXTY DAYS IN WHICH TO DEMONSTRATE COMPLIANCE
TO THE COMMISSIONER. UPON EXPIRATION OF THE SIXTY-DAY PERIOD, IF THE
COMMISSIONER FINDS THAT THE PARTICIPATING JUDICIAL DISTRICT OR AGENCY IS
NOT COMPLYING WITH ITS PLAN OR WITH THE MINIMUM STANDARDS ESTABLISHED
PURSUANT TO THIS ARTICLE, THE COMMISSIONER SHALL REQUIRE THE AGENCY TO
PROVIDE A WRITTEN COMPLIANCE AGREEMENT FOR THE CORRECTION OF SPECIFIC
DEFICIENCIES IDENTIFIED BY THE COMMISSIONER. IF NO SUCH AGREEMENT IS
SUBMITTED TO THE COMMISSIONER WITHIN THE TIME LIMIT SPECIFIED OR IF SUCH
DEFICIENCIES ARE NOT CORRECTED WITHIN FORTY-FIVE DAYS AFTER SUCH AN
AGREEMENT HAS BEEN APPROVED BY THE COMMISSIONER, THE COMMISSIONER MAY
SUSPEND ANY PART OR ALL OF THE FUNDING UNTIL COMPLIANCE IS ACHIEVED.
S 435.48 DRUG PUNISHMENT PROGRAM; ASSESSMENT AND PLACEMENT PROCEDURES.
OFFENDERS WHO ARE BELIEVED BY A JUDGE OR PROBATION OFFICER TO MEET THE
CRITERIA OF A DRUG OFFENDER SHALL BE SCREENED, REFERRED, AND ASSESSED AS
PROVIDED FOR IN THIS SECTION.
1. OFFENDERS WHO ARE BELIEVED TO MEET THE CRITERIA OF A DRUG OFFENDER
SHALL BE INITIALLY SCREENED FOR THE DRUG PUNISHMENT PROGRAM BY THE JUDGE
OR PROBATION OFFICER FOR ELIGIBILITY AS A DRUG OFFENDER, INCLUDING PRIOR
FELONY CONVICTIONS, PRIOR PRISON TIME SERVED, AND EVIDENCE OF CRIMINAL
ACTIVITY LINKED TO DRUG ABUSE OR VOLUNTARY ADMISSION OF DRUG ABUSE.
2. WITH RESPECT TO ALL OFFENDERS WHO ARE DETERMINED TO BE ELIGIBLE FOR
THE DRUG PUNISHMENT PROGRAM BASED ON THE INITIAL SCREENING PURSUANT TO
SUBDIVISION ONE OF THIS SECTION, THE JUDGE SHALL REQUEST, OBTAIN, AND
CONSIDER, AS PART OF A SUMMARY REPORT DESIGNED TO GIVE THE COURT INFOR-
MATION CRITICAL TO ITS IMPOSITION OF SENTENCE OR PLACEMENT, A COMPREHEN-
SIVE ASSESSMENT TO BE CONDUCTED BY A DRUG PUNISHMENT PROGRAM COMMUNITY
ASSESSMENT PROVIDER LOCATED WITHIN THE JUDICIAL DISTRICT OF THE REFER-
RING PROBATION OFFICER OR COURT. WHEN POSSIBLE AND APPROPRIATE, SEVERAL
DRUG PUNISHMENT PROGRAM COMMUNITY ASSESSMENT PROVIDERS SHALL BE
CONTRACTED TO PROVIDE ASSESSMENTS WITHIN A JUDICIAL DISTRICT.
3. A REFERRAL FOR A DRUG PUNISHMENT PROGRAM COMPREHENSIVE ASSESSMENT
SHALL BE ACCOMPANIED BY A COPY OF THE INITIAL SCREENING INSTRUMENT
PERFORMED BY THE JUDGE OR PROBATION OFFICER AND ALL AVAILABLE RECORDS
A. 2808 30
DESCRIBING THE OFFENDER'S DRUG ABUSE, PSYCHOSOCIAL, AND CRIMINAL HISTO-
RIES, INCLUDING DRUG TESTING RESULTS, PRIOR PARTICIPATION IN DRUG ABUSE
TREATMENT, ARRESTS, PROBATION VIOLATIONS, AND ANY OTHER PERTINENT INFOR-
MATION. LEGAL COUNSEL OF THE DEPARTMENT SHALL PROVIDE FOR EXPEDITED
REVIEW AND RELEASE OF SUCH RECORDS TO THE COMPREHENSIVE ASSESSMENT
PROVIDER.
4. THE DRUG PUNISHMENT PROGRAM COMPREHENSIVE ASSESSMENT SHALL ADDRESS,
AT A MINIMUM, THE FOLLOWING AREAS:
(A) HISTORY OF DRUG ABUSE AND DEPENDENCY.
(B) HISTORY OF CRIME AND HOW SUCH HISTORY RELATES TO THE OFFENDER'S
DRUG ABUSE.
(C) HISTORY OF DRUG ABUSE TREATMENT.
(D) MENTAL HEALTH SYMPTOMS.
(E) RECENT VIOLENT OR AGGRESSIVE BEHAVIOR.
5. THE DRUG PUNISHMENT PROGRAM COMPREHENSIVE ASSESSMENT PROVIDER MAY
ELECT TO TERMINATE THE EVALUATION IF THE OFFENDER FAILS TO COOPERATE IN
PROVIDING NEEDED INFORMATION. THE REFERRING JUDGE OR PROBATION OFFICER
SHALL BE PROVIDED WITH THE RATIONALE FOR TERMINATION OF ANY DRUG PUNISH-
MENT COMPREHENSIVE ASSESSMENT.
6. EACH DRUG PUNISHMENT COMPREHENSIVE ASSESSMENT REPORT SHALL BE
COMPLETED AND DELIVERED TO THE PROBATION OFFICER AND TO THE COURT WITHIN
SEVENTY-TWO HOURS AFTER RECEIVING THE DRUG PUNISHMENT ASSESSMENT
REQUEST, UNLESS ADDITIONAL TIME IS AUTHORIZED BY THE REFERRING JUDGE
BASED ON NEED THEREFOR.
7. IF THE DRUG PUNISHMENT PROGRAM ASSESSMENT PROVIDER RECOMMENDS
AGAINST ADMISSION TO THE DRUG PUNISHMENT PROGRAM, THE ASSESSMENT REPORT
SHALL RECOMMEND DRUG ABUSE TREATMENT MODALITIES AND COMMUNITY SETTINGS
FOR SUCH ADDITIONAL SERVICES AS ARE NEEDED TO PROMOTE THE OFFENDER'S
REHABILITATION AND HIS RECOVERY FROM DRUG ABUSE AND DEPENDENCY.
8. A DRUG OFFENDER SHALL BE ADMITTED TO THE DRUG PUNISHMENT PROGRAM
ONLY WHEN PLACED IN THE PROGRAM BY THE COURT BASED UPON THE RECOMMENDA-
TION OF A DRUG PUNISHMENT PROGRAM ASSESSMENT PROVIDER.
9. (A) ASSIGNMENT TO THE DRUG PUNISHMENT PROGRAM SHALL OCCUR FOLLOWING
A PROBATION HEARING OR A PROBATION OR COMMUNITY CONTROL MODIFICATION OR
REVOCATION HEARING.
(B) FOR ANY OFFENDER WHO MEETS THE CRITERIA OF A DRUG OFFENDER AND WHO
IS DETERMINED BY THE DRUG PUNISHMENT PROGRAM ASSESSMENT PROVIDER TO BE
ELIGIBLE FOR THE DRUG PUNISHMENT PROGRAM, THE COURT MAY IMPOSE THE
CONDITIONS OF PROBATION OR MODIFY THE CONDITIONS OF PROBATION OR COMMU-
NITY CONTROL TO REQUIRE THE DRUG OFFENDER TO ENTER THE DRUG PUNISHMENT
PROGRAM AND TO REMAIN IN SUCH PROGRAM FOR A TERM OF UP TO EIGHTEEN
MONTHS, DURING WHICH TERM THE DRUG OFFENDER MUST PARTICIPATE FULLY IN
AND SUCCESSFULLY COMPLETE THE DRUG PUNISHMENT PROGRAM OR FACE THE LIKE-
LIHOOD OF INCARCERATION IN PRISON.
(C) THE COURT SHALL IMPOSE, AS A CONDITION OF A DRUG OFFENDER'S DRUG
TREATMENT PROBATION, THAT HE SIGN A FORM WHICH SHALL BE PROVIDED BY THE
DEPARTMENT AND WHICH GIVES THE DRUG OFFENDER'S INFORMED CONSENT TO
TREATMENT AND CONSENT TO THE RELEASE OF THE RECORDS AND INFORMATION.
10. IF THERE IS NOT AN AVAILABLE BED IN AN EXISTING DRUG PUNISHMENT
PROGRAM FACILITY WITHIN THE JUDICIAL DISTRICT, THE DRUG OFFENDER MAY BE
PLACED ON A WAITING LIST AND SHALL BE ADMITTED TO A DRUG PUNISHMENT
PROGRAM FACILITY AT THE EARLIEST POSSIBLE DATE.
S 435.50 RECORDS OF DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT
PROVIDERS; CONFIDENTIALITY.
DRUG TEST RESULTS MAY BE DIVULGED TO THE DRUG PUNISHMENT PROGRAM
TREATMENT COMMUNITY AND DEPARTMENT PERSONNEL WHO ARE INVOLVED WITH THE
A. 2808 31
DRUG OFFENDER. ALL RECORDS OF DRUG PUNISHMENT PROGRAM ASSESSMENT AND
TREATMENT PROVIDERS SHALL BE MAINTAINED BY THE INDIVIDUAL PROVIDER AND
SHALL INCLUDE THE DRUG OFFENDER'S ASSESSMENT AND TREATMENT INFORMATION
AND SUCH OTHER INFORMATION AS MAY BE REQUIRED UNDER RULES OF THE DEPART-
MENT. UNLESS WAIVED BY EXPRESS AND INFORMED CONSENT BY THE DRUG OFFEN-
DER OR HIS GUARDIAN OR, IF THE DRUG OFFENDER IS DECEASED, BY HIS
PERSONAL REPRESENTATIVE OR BY THE PERSON WHO STANDS NEXT IN LINE OF
INTESTATE SUCCESSION, THE PRIVILEGED AND CONFIDENTIAL STATUS OF THE
CLINICAL ASSESSMENT AND TREATMENT RECORD SHALL NOT BE LOST BY EITHER
AUTHORIZED OR UNAUTHORIZED DISCLOSURE.
1. DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT RECORDS SHALL NOT
BE PUBLIC RECORDS AND SHALL NOT BE RELEASED, EXCEPT:
(A) TO SUCH PERSONS AND AGENCIES AS ARE DESIGNATED BY THE DRUG OFFEN-
DER OR HIS GUARDIAN.
(B) TO PERSONS AUTHORIZED BY ORDER OF COURT, EXCLUDING MATTERS PRIVI-
LEGED BY OTHER PROVISIONS OF LAW.
(C) TO A QUALIFIED RESEARCHER, A STAFF MEMBER OF THE DESIGNATED TREAT-
MENT FACILITY, OR AN EMPLOYEE OF THE DEPARTMENT WHEN THE ADMINISTRATOR
OF THE FACILITY OR THE COMMISSIONER DEEMS IT NECESSARY FOR TREATMENT OF
THE DRUG OFFENDER, MAINTENANCE OF ADEQUATE RECORDS, COMPILATION OF
TREATMENT DATA, OR EVALUATION OF PROGRAMS.
(D) FOR STATISTICAL AND RESEARCH PURPOSES IF THE INFORMATION IS
ABSTRACTED IN SUCH A WAY AS TO PROTECT THE IDENTITY OF INDIVIDUAL DRUG
OFFENDERS.
2. ANY LAW ENFORCEMENT AGENCY, DESIGNATED TREATMENT FACILITY, GOVERN-
MENTAL OR COMMUNITY AGENCY, OR OTHER ENTITY RECEIVING INFORMATION PURSU-
ANT TO THIS SECTION SHALL MAINTAIN SUCH INFORMATION AS A CONFIDENTIAL
RECORD AS PROVIDED IN THIS SECTION.
3. (A) THE DEPARTMENT SHALL PROVIDE TO THE COURTS FORMS TO BE SIGNED
AS A CONDITION OF DRUG TREATMENT PROBATION, PROVIDING THE DRUG OFFEN-
DERS' INFORMED CONSENT TO TREATMENT AND CONSENT TO RELEASE OF RECORDS
AND INFORMATION.
(B) ALL DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT RECORDS ARE
CONFIDENTIAL TO THE EXTENT DESCRIBED IN THIS SECTION.
4. THE DEPARTMENT SHALL HAVE FULL ACCESS TO ALL DRUG PUNISHMENT
PROGRAM RECORDS TO ENSURE COORDINATION OF DRUG PUNISHMENT PROGRAM
SERVICES, AND SHALL PROVIDE TO THE PROGRAM EVALUATOR ALL INFORMATION
NEEDED TO PERFORM THE EVALUATION PROGRAM.
S 435.53 INFORMATION SYSTEMS.
1. FOR THE PURPOSE OF ASSISTING IN ADMINISTRATION, AND DRUG PUNISHMENT
TREATMENT DECISION-MAKING WHEN APPLICABLE, ALL DRUG PUNISHMENT PROGRAM
ASSESSMENT AND TREATMENT PROVIDERS SHALL MAINTAIN A CENTRAL IDENTIFICA-
TION FILE ON THE DRUG OFFENDERS THEY ASSESS OR TREAT.
2. ALL DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREATMENT PROVIDERS
SHALL COLLECT, MAINTAIN, AND REPORT TO THE DEPARTMENT ALL INFORMATION
NECESSARY TO COMPLY WITH MANDATORY REPORTING, PURSUANT TO DEPARTMENTAL
RULES. COMPLIANCE WITH THIS SUBDIVISION SHALL BE MADE PART OF THE
CONTRACTUAL DUTIES OF EACH DRUG PUNISHMENT PROGRAM PROVIDER.
3. A STATEWIDE AUTOMATED TRACKING SYSTEM FOR DRUG PUNISHMENT PROGRAM
OFFENDERS SHALL BE DEVELOPED AND IMPLEMENTED BY THE DIVISION OF STATE
POLICE.
S 435.55 DRUG PUNISHMENT PROGRAM.
THE DRUG PUNISHMENT PROGRAM SHALL BE AS FOLLOWS:
1. PHASE I: INTENSIVE RESIDENTIAL. UP TO SIX MONTHS OF INTENSIVE RESI-
DENTIAL TREATMENT IN A DESIGNATED MODIFIED TREATMENT COMMUNITY SECURE
RESIDENTIAL INSTITUTION. PHASE I INSTITUTIONS SHALL CONSIST OF SEPARATE
A. 2808 32
SECURE INTAKE RESIDENTIAL UNITS, AND MAY BE DESIGNED FOR COED PROGRAM-
MING, ACCORDING TO THE NEED FOR TREATMENT SLOTS WITHIN THE JUDICIAL
DISTRICT.
(A) UPON ADMISSION TO A DRUG PUNISHMENT PROGRAM TREATMENT COMMUNITY,
DRUG OFFENDERS SHALL BE HOUSED IN A SEPARATE INTAKE UNIT IN ORDER TO
PARTICIPATE IN A SERIES OF SPECIALIZED INTENSIVE ORIENTATION ACTIVITIES,
INCLUDING, BUT NOT LIMITED TO, ACTIVITIES DESIGNED TO INITIATE AWARENESS
AND UNDERSTANDING BY EACH DRUG OFFENDER OF THE CONSEQUENCES OF HIS FAIL-
URE IN THE DRUG PUNISHMENT PROGRAM.
(B) AFTER ENTERING EACH DRUG PUNISHMENT PROGRAM TREATMENT PHASE, AN
INDIVIDUALIZED DRUG PUNISHMENT PLAN SHALL BE DEVELOPED FOR THE DRUG
OFFENDER BY A TREATMENT TEAM FROM THE DRUG PUNISHMENT PROGRAM, WITH
NOTICE TO AND RIGHT OF MODIFICATION BY THE DEPARTMENT. SUCH PLAN SHALL
INCLUDE, BUT IS NOT LIMITED TO:
(1) A DESCRIPTION OF MEASURABLE GOALS FOR THE DRUG OFFENDER, WITH
SPECIFIC TREATMENT INTERVENTIONS RECOMMENDED TO MEET EACH GOAL.
(2) MEASURABLE BEHAVIORAL CRITERIA FOR SUCCESSFUL COMPLETION OF THE
TREATMENT PHASE WHICH THE DRUG OFFENDER HAS JUST ENTERED.
(3) A DESCRIPTION OF THE TREATMENT PLANNED FOR THE TREATMENT PHASE,
THE STAFF RESPONSIBLE FOR MONITORING TREATMENT, AND THE DATES OF ANTIC-
IPATED DRUG PUNISHMENT PLAN REVIEW.
(C) FOLLOWING COMPLETION OF THE INTAKE PROCESS AND DEVELOPMENT OF A
DRUG PUNISHMENT PLAN, DRUG OFFENDERS MUST COMPLETE A PROGRAM OF UP TO
SIX MONTHS OF COMPREHENSIVE DRUG ABUSE TREATMENT PRIOR TO BEING ASSIGNED
TO A DRUG PUNISHMENT PROGRAM PHASE II TREATMENT UNIT.
(D) ROUTINE AND RANDOM DRUG TESTING SHALL BE CONDUCTED DURING PHASE I.
DURING PHASE I, ENTRY INTO AND EXIT FROM INSTITUTIONAL FACILITIES
SHALL BE MONITORED, BUT THE PURPOSE OF SUCH MONITORING SHALL NOT BE TO
PHYSICALLY PROHIBIT ABSCONDING. AN ABSCONDING SHALL BE CONSIDERED A
VIOLATION OF A CONDITION OF PROBATION.
2. PHASE II: GRADUATED REENTRY. UP TO THREE MONTHS OF EMPLOYMENT EXPE-
RIENCE AND TRANSITION WORK IN A COMMUNITY REENTRY RESIDENTIAL SETTING.
PHASE II DRUG PUNISHMENT PROGRAM FACILITIES SHALL CONSIST OF COMMUNITY
REENTRY RESIDENTIAL FACILITIES.
(A) FOLLOWING TRANSFER TO PHASE II, THE DRUG OFFENDER SHALL BE
ASSIGNED A PRIMARY DRUG PUNISHMENT PROGRAM COUNSELOR TO ASSIST THE CASE
MANAGEMENT COUNSELOR IN DEVELOPING A DRUG PUNISHMENT PLAN FOR THE PHASE
AND IN MONITORING THE DRUG OFFENDER'S PROGRESS THROUGH THE PHASE. THE
DRUG PUNISHMENT PROGRAM COUNSELOR SHALL PROVIDE, ON A FORM PROVIDED BY
THE DRUG OFFENDER ADVISORY BOARD, A COPY OF THE DRUG PUNISHMENT PLAN TO
THE SUPERVISING PROBATION OFFICER AND SHALL PROVIDE BRIEF MONTHLY
UPDATES ON THE DRUG OFFENDER'S PROGRAM PERFORMANCE TO THE SUPERVISING
PROBATION OFFICER AND THE COURT.
(B) ROUTINE AND RANDOM DRUG TESTING SHALL BE CONDUCTED DURING PHASE
II.
(C) A CASE MANAGEMENT COUNSELOR SHALL IDENTIFY VOCATIONAL TRAINING AND
EMPLOYMENT OPPORTUNITIES, HOUSING, AND OTHER SUPPORT SERVICES FOR THE
DRUG OFFENDER IN THE COMMUNITY.
(D) PRIOR TO A DRUG OFFENDER'S COMPLETION OF PHASE II, THE CASE
MANAGEMENT COUNSELOR SHALL IDENTIFY AN OUTPATIENT COUNSELOR FROM A
DESIGNATED DRUG PUNISHMENT PROGRAM PROVIDER AGENCY WHO SHALL BE RESPON-
SIBLE FOR DELIVERING AT LEAST NINE MONTHS OF OUTPATIENT FOLLOW-UP TREAT-
MENT SERVICES, IN CLOSE PROXIMITY TO THE DRUG OFFENDER'S PLACE OF RESI-
DENCE, DURING PHASE III. THE OUTPATIENT SERVICE PROVIDER SHALL RECEIVE A
COPY OF THE DRUG OFFENDER'S AFTERCARE PLAN AS DESCRIBED IN PARAGRAPH (E)
A. 2808 33
OF THIS SUBDIVISION FROM THE CASE MANAGER FOR THE SUPERVISED OUTPATIENT
PHASE OF THE DRUG PUNISHMENT PROGRAM.
(E) A DRUG OFFENDER'S AFTERCARE PLAN SHALL INCLUDE A DESCRIPTION OF
THE FOLLOWING:
(1) TREATMENT AND REHABILITATION GOALS AND KEY AREAS OF DIFFICULTIES.
(2) DRUG PUNISHMENT PLAN ACTIVITIES COMPLETED BY THE DRUG OFFENDER.
(3) THE DRUG OFFENDER'S AREAS OF PROGRESS AND DISCIPLINARY ACTIONS.
(4) THE PRESENT STATUS OF THE DRUG OFFENDER WITH RESPECT TO HIS DRUG
PUNISHMENT PLAN.
(5) THE DRUG PUNISHMENT PLAN GOALS THAT SHOULD BE ADDRESSED IN PHASE
III, DURING WHICH PHASE TREATMENT SHALL BE PROVIDED IN THE LEAST
RESTRICTIVE SETTING IN WHICH THE GOALS FOR THE DRUG OFFENDER CAN BE
ACCOMPLISHED.
3. PHASE III: SUPERVISED OUTPATIENT. AT LEAST NINE MONTHS OF SUPER-
VISED COMMUNITY OUTPATIENT TREATMENT, DECREASING IN INTENSITY AS THE
DRUG OFFENDER RESPONDS TO TREATMENT AND BECOMES APPROPRIATELY ESTAB-
LISHED IN THE COMMUNITY.
(A) THE DEPARTMENT SHALL DEVELOP AND IMPLEMENT STANDARDS FOR PROVIDING
SUPERVISION OF THE OFFENDER, WHICH SHALL BE COMPARABLE TO THOSE ASSOCI-
ATED WITH THE COMMUNITY CONTROL PROGRAM.
(B) DURING PHASE III, THE DRUG OFFENDER SHALL RESIDE IN HIS COMMUNITY.
THE PROBATION OFFICER SHALL MAINTAIN A PER WEEK MINIMUM OF TWO FACE-TO-
FACE CONTACTS, ONE OF WHICH IS IN THE DRUG OFFENDER'S RESIDENCE. NO LESS
THAN ONE CONTACT EVERY OTHER WEEK SHALL BE ANY EVENING CONTACT, AND THE
PROBATION OFFICER SHALL VISIT THE DRUG OFFENDER'S RESIDENCE NO LESS THAN
EVERY OTHER WEEKEND AND SHALL MAINTAIN DAILY TELEPHONE CONTACT WITH THE
DRUG OFFENDER, INCLUDING ON WEEKENDS.
(C) ROUTINE AND RANDOM DRUG TESTING SHALL BE CONDUCTED AT LEAST WEEKLY
DURING PHASE III.
(D) THE DRUG OFFENDER SHALL PARTICIPATE IN FULL-TIME EMPLOYMENT OR
VOCATIONAL TRAINING DURING PHASE III.
(E) MAJOR GOALS OF PHASE III INCLUDE, BUT ARE NOT LIMITED TO:
(1) REHEARSAL AND REFINEMENT OF THE DRUG OFFENDER'S RELAPSE PREVENTION
STRATEGIES.
(2) CONTINUED WORK TOWARD COMPLETION OF THE DRUG OFFENDER'S DRUG
PUNISHMENT PLAN.
(3) MAINTENANCE OF BEHAVIOR CHANGES ACHIEVED BY THE DRUG OFFENDER
DURING THE FIRST TWO PHASES OF TREATMENT.
(F) FOLLOW-UP TREATMENT SHALL PROVIDE AT LEAST THREE THREE-MONTH
LEVELS OF DECREASING INTENSITY TO ENSURE ADEQUATE MONITORING OF AND
SUPPORT FOR THE DRUG OFFENDER IN A GRADUATED TRANSITION TO INDEPENDENT
LIVING WHICH INCLUDES ATTENDANCE IN WEEKLY GROUP SESSIONS AND SELF-HELP
GROUPS, WHICH MAY INCLUDE ALCOHOLICS ANONYMOUS, NARCOTICS ANONYMOUS, AND
COCAINE ANONYMOUS.
(G) AFTER THE DRUG OFFENDER HAS SUCCESSFULLY COMPLETED ALL PHASES OF
THE DRUG PUNISHMENT PROGRAM, AND WITHIN ONE MONTH AFTER COMPLETION OF
THE FOLLOW-UP PROGRAM, THE DRUG OFFENDER'S TREATMENT COUNSELOR SHALL
PREPARE A DRUG PUNISHMENT PROGRAM COMPLETION SUMMARY THAT INCLUDES THE
DRUG OFFENDER'S PROGRESS IN OUTPATIENT TREATMENT AND REHABILITATION AND
ANY RECOMMENDATIONS FOR FURTHER TREATMENT, COUNSELING, OR OTHER SOCIAL
OR REHABILITATIVE SERVICES FOR THE DRUG OFFENDER.
4. TERMINATION FROM DRUG PUNISHMENT PROGRAM. AN OFFENDER PLACED IN THE
DRUG PUNISHMENT PROGRAM AS A RESULT OF A CONDITION OF PROBATION IS
SUBJECT TO REVOCATION OF PROBATION. THE DEPARTMENT SHALL ASSIGN A
PROBATION OFFICER TO THE FACILITY PROVIDING SERVICES AS PROVIDED IN THIS
SECTION. THE TREATMENT PROVIDER SHALL REPORT TO THE ASSIGNED PROBATION
A. 2808 34
OFFICER SUCH BEHAVIOR WHICH MAY CONSTITUTE A VIOLATION OF ANY OF THE
CONDITIONS OF PROBATION. THE PROVIDER SHALL RECOMMEND TO THE PROBATION
OFFICER WHAT ACTION SHOULD BE TAKEN WITH RESPECT TO THE ALLEGED
VIOLATIONS, AND THE OFFICER SHALL PROVIDE A REPORT TO THE COURT WITH
RECOMMENDATIONS.
5. DISCIPLINE IN DRUG PUNISHMENT PROGRAM TREATMENT COMMUNITIES. A
SERIES OF GRADUATED SANCTIONS SHALL BE DEVELOPED BY THE STATEWIDE
PROGRAM MANAGER, SUBJECT TO APPROVAL OF THE DEPARTMENT AND THE DRUG
OFFENDER ADVISORY BOARD, FOR USE IN THE TREATMENT COMMUNITIES OF THE
DRUG PUNISHMENT PROGRAM. THE SANCTIONS SHALL BE DESIGNED TO PROVIDE
CLEAR CONSEQUENCES FOR A DRUG OFFENDER'S MISCONDUCT AS WELL AS TO
PROVIDE DISCIPLINE WITHIN THE TREATMENT COMMUNITY. THE RANGE OF SANC-
TIONS PROVIDED FOR EACH PROGRAM PHASE SHALL BE APPROPRIATE SANCTIONS FOR
THAT PHASE OF TREATMENT.
NOTHING CONTAINED IN THIS SECTION SHALL CONFER A RIGHT TO OR AN EXPECTA-
TION OF A RIGHT TO TREATMENT.
S 435.60 DESIGNATED TREATMENT COMMUNITIES.
1. DESIGNATED TREATMENT COMMUNITIES FOR DRUG OFFENDERS MAY BE
CONTRACTED FOR OR SITED AND CONSTRUCTED BY THE DEPARTMENT PURSUANT TO
DEPARTMENTAL RULE, IN CONSULTATION WITH THE STATEWIDE PROGRAM MANAGER TO
ENSURE THAT TREATMENT COMMUNITY DESIGN IS COMPATIBLE WITH TREATMENT AND
OTHER PROGRAM NEEDS. THE DEPARTMENT IS AUTHORIZED TO CONTRACT FOR THE
CONSTRUCTION OF THE DRUG PUNISHMENT PROGRAM TREATMENT COMMUNITY INSTI-
TUTIONS. PHASE I INSTITUTIONAL DRUG PUNISHMENT PROGRAM FACILITIES SHALL
CONSIST OF SECURE INTAKE AND RESIDENTIAL UNITS. PHASE II INSTITUTIONAL
DRUG PUNISHMENT PROGRAM FACILITIES SHALL CONSIST OF COMMUNITY REENTRY
FACILITIES AND MAY BE LOCATED ON A SINGLE SITE WITH PHASE I UNITS,
PROVIDED THE PHASE I INSTITUTIONAL FACILITY IS SITED IN CLOSE PROXIMITY
TO THE PROGRAM'S TREATMENT COMMUNITY RESOURCES. AN ASSESSMENT OF NEED
FOR ADDITIONAL PHASE I INSTITUTIONAL FACILITIES SHALL BE CONDUCTED PRIOR
TO THE SITING OR CONSTRUCTION OF MORE THAN ONE PHASE I SECURE RESIDEN-
TIAL INSTITUTIONAL FACILITY FOR THE DRUG PUNISHMENT PROGRAM IN ANY
PARTICULAR JUDICIAL DISTRICT.
2. THE PHASE I PORTION OF TREATMENT COMMUNITIES FOR DRUG OFFENDERS
SHALL CONSIST OF SEPARATE AND SECURE INSTITUTIONAL FACILITIES ESTAB-
LISHED UNDER THE AUTHORITY OF THE DEPARTMENT.
3. DESIGNATED TREATMENT COMMUNITIES FOR DRUG OFFENDERS SHALL BE
ADEQUATELY STAFFED BY THE DESIGNATED ASSESSMENT AND TREATMENT PROVIDERS,
AND THE DEPARTMENT SHALL PROVIDE A PROBATION OFFICER FOR EACH RESIDEN-
TIAL FACILITY.
4. MINIMUM STANDARDS AND REQUIREMENTS FOR DESIGNATED DRUG PUNISHMENT
PROGRAM TREATMENT COMMUNITIES SHALL BE CONTRACTUALLY PRESCRIBED PURSUANT
TO SECTION 435.25 OF THIS ARTICLE.
5. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO REQUIRE OR ALLOW THE
DEPARTMENT TO PROVIDE ASSESSMENT OR TREATMENT SERVICES TO DRUG OFFENDERS
IN THE DRUG PUNISHMENT PROGRAM, OTHER THAN THE COMMENCEMENT OF INITIAL
SCREENING OF AN OFFENDER WHO MAY MEET THE CRITERIA OF A DRUG OFFENDER BY
THE DEPARTMENT'S PROBATION OFFICER.
6. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT DRUG OFFENDERS
TO BE HOUSED OR TREATED IN LOCAL JAILS PURSUANT TO THE DRUG PUNISHMENT
PROGRAM.
S 435.65 CORE TREATMENT PROGRAM.
1. ALL DRUG OFFENDERS IN THE DRUG PUNISHMENT PROGRAM SHALL COMPLETE A
CORE TREATMENT PROGRAM, INCLUDING, BUT NOT LIMITED TO:
(A) DRUG ABUSE TREATMENT, INCLUDING:
(1) RELAPSE PREVENTION.
A. 2808 35
(2) BOTH ROUTINE AND RANDOM DRUG TESTING.
(3) DRUG ABUSE EDUCATION.
(4) AIDS EDUCATION.
(B) MENTAL HEALTH SERVICES.
(C) PREVOCATIONAL AND VOCATIONAL SERVICES, INCLUDING EMPLOYABILITY
SKILLS TRAINING AND JOB TRAINING REALISTICALLY DESIGNED TO LEAD TO MEAN-
INGFUL JOB PLACEMENT.
(D) DIAGNOSTIC EVALUATION.
(E) INDIVIDUAL THERAPY, INCLUDING TREATMENT OF CRIMINAL THOUGHT PROC-
ESSES, AND INCLUDING GROUP AND FAMILY THERAPY WHERE APPROPRIATE.
(F) INDEPENDENT LIVING SKILLS, PARENTING SKILLS, AND SELF-SUFFICIENCY
SKILLS.
(G) EDUCATIONAL SERVICES, INCLUDING SPECIAL EDUCATION AND PRE-GED
LITERACY SERVICES WHERE NEEDED.
(H) RECREATIONAL ACTIVITIES.
(I) VICTIM RESTITUTION WHERE APPROPRIATE.
(J) CASE MANAGEMENT SERVICES, GENERAL GROUP COUNSELING, SELF-HELP
GROUPS, AND GRADUATED REENTRY INTO THE COMMUNITY.
2. A COMPREHENSIVE EDUCATIONAL AND VOCATIONAL COMPONENT WITHIN THE
DRUG PUNISHMENT PROGRAM SHALL INCLUDE A RANGE OF SKILLS DEVELOPMENT
OPPORTUNITIES TO ENABLE EACH DRUG OFFENDER TO OBTAIN SKILLS COMMENSURATE
WITH HIS INTERESTS AND ABILITIES.
(A) THE GOALS OF THE EDUCATIONAL AND VOCATIONAL COMPONENTS OF THE DRUG
PUNISHMENT PROGRAM ARE TO:
(1) ENHANCE BASIC LIFE SKILLS,
(2) DEVELOP MARKETABLE VOCATIONAL SKILLS, AND
(3) IMPROVE LITERACY SKILLS,
SO AS TO ALLOW THE DRUG OFFENDER TO MAINTAIN TREATMENT BENEFITS AND GAIN
MEANINGFUL EMPLOYMENT IN THE COMMUNITY.
(B) SPECIFIC OBJECTIVES OF THE EDUCATIONAL AND VOCATIONAL COMPONENTS
OF THE DRUG PUNISHMENT PROGRAM INCLUDE THE DEVELOPMENT OR IMPROVEMENT OF
READING SKILLS AND THE PLACEMENT OF EACH DRUG OFFENDER INTO VOCATIONAL
TRAINING OR MEANINGFUL EMPLOYMENT DURING PHASES II AND III.
(C) DURING THE DRUG PUNISHMENT PROGRAM INTAKE ORIENTATION, AN EDUCA-
TIONAL AND VOCATIONAL COMPONENT OF THE INDIVIDUALIZED DRUG PUNISHMENT
PLAN SHALL BE DEVELOPED FOR EACH DRUG OFFENDER, WHICH INCLUDES LITERACY,
EMPLOYABILITY, AND VOCATIONAL SKILLS, ASSESSMENT, INDIVIDUALIZED PLAN-
NING, PARTICIPATION IN EDUCATIONAL AND VOCATIONAL ACTIVITIES, AND POST-
PROGRAM PLACEMENT.
(D) ADULT EDUCATION TEACHERS FOR DRUG OFFENDERS MAY BE PROVIDED BY THE
LOCAL SCHOOL BOARD. ADULT BASIC EDUCATION MAY BE OFFERED DURING PHASE II
OF THE DRUG PUNISHMENT PROGRAM IN LOCAL COMMUNITY COLLEGES OR IN OTHER
SETTINGS.
3. THE CORE TREATMENT PROGRAM SHALL BE PROVIDED THROUGHOUT ALL PHASES
OF A DRUG OFFENDER'S INDIVIDUAL DRUG PUNISHMENT PLAN, INCLUDING PHASE
III AFTERCARE.
S 435.70 DRUG OFFENDER ADVISORY BOARD.
1. THE DRUG OFFENDER ADVISORY BOARD IS CREATED TO SERVE IN AN ADVISORY
CAPACITY TO THE DEPARTMENT AND THE STATEWIDE PROGRAM MANAGER AND SHALL
REPRESENT THE GEOGRAPHICAL AND ETHNIC DIVERSITY OF THE STATE. MEMBERSHIP
OF THE BOARD SHALL CONSIST OF THE FOLLOWING:
(A) A DESIGNEE OF THE DEPARTMENT.
(B) A DESIGNEE OF THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNA-
TIVES.
(C) A DESIGNEE OF THE PROGRAM EVALUATOR.
A. 2808 36
(D) A DESIGNEE OF THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES.
(E) A JUDGE APPOINTED BY THE OFFICE OF COURT ADMINISTRATION.
(F) A SHERIFF APPOINTED BY THE NEW YORK STATE SHERIFF'S ASSOCIATION.
(G) A DISTRICT ATTORNEY APPOINTED BY THE NEW YORK STATE DISTRICT
ATTORNEY'S ASSOCIATION.
(H) A PUBLIC DEFENDER APPOINTED BY THE NEW YORK STATE DEFENDERS ASSO-
CIATION.
(I) A TEACHER WHO HAS KNOWLEDGE IN THE AREAS OF ADULT BASIC LITERACY
EDUCATION AND VOCATIONAL EDUCATION, APPOINTED BY THE COMMISSIONER OF
EDUCATION.
(J) REPRESENTATIVES FROM THREE NONPROFIT DRUG TREATMENT AGENCIES WITH
EXPERIENCE IN TREATING DRUG ABUSING OFFENDERS, APPOINTED BY THE DEPART-
MENT.
THE SHERIFF, DISTRICT ATTORNEY, JUDGE, AND PUBLIC DEFENDER SHALL SERVE
ON THE ADVISORY BOARD DURING THEIR TERMS OF OFFICE. IN ORDER TO PROVIDE
STAGGERED TERMS, TWO OF THE REPRESENTATIVES FROM THE NONPROFIT DRUG
TREATMENT AGENCIES AND THE TEACHER SHALL BE INITIALLY APPOINTED TO TERMS
OF THREE YEARS, AND THEREAFTER TO TERMS OF TWO YEARS. THE REMAINING
MEMBERS SHALL BE FILLED IN THE SAME MANNER AS ORIGINAL APPOINTMENTS FOR
ANY UNEXPIRED TERM. MEMBERS OF THE ADVISORY BOARD MAY BE REAPPOINTED IN
ACCORDANCE WITH THE REQUIREMENTS OF THIS SUBDIVISION.
2. MAJOR RESPONSIBILITIES OF THE BOARD ARE:
(A) TO PREPARE AND SUBMIT FOR DEPARTMENT APPROVAL A DRUG PUNISHMENT
PLAN IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE, AND TO ENSURE
THAT THE ASSESSMENT, TREATMENT, AND EVALUATION COMPONENTS OF THE DRUG
PUNISHMENT PROGRAM ARE CONDUCTED IN AN EFFECTIVE AND TIMELY MANNER.
(B) TO REVIEW REQUESTS FOR APPLICATIONS OF PROVIDERS TO RENDER ASSESS-
MENT OR TREATMENT SERVICES IN THE DRUG PUNISHMENT PROGRAM.
(C) TO REVIEW PREQUALIFIED PROPOSALS FOR THE PURPOSE OF MAKING A
RECOMMENDATION TO THE DEPARTMENT.
(D) TO REVIEW SITE ACQUISITION FOR DRUG PUNISHMENT PROGRAM TREATMENT
INSTITUTIONAL COMMUNITIES.
(E) TO REVIEW ARCHITECTURAL PROTOTYPES OF PHASE I AND PHASE II TREAT-
MENT INSTITUTIONAL COMMUNITIES.
(F) TO REVIEW TRAINING AND TREATMENT CURRICULA FOR DRUG PUNISHMENT
PROGRAM PROVIDERS AND STAFF.
(G) TO PROVIDE OVERVIEW AND COORDINATION OF DRUG PUNISHMENT PROGRAM
PROVIDERS, THE DEPARTMENT, THE PROGRAM EVALUATOR, AND THE TREATMENT
COMMUNITIES OF THE DRUG PUNISHMENT PROGRAM.
3. THE BOARD SHALL ALSO:
(A) ASSESS STATEWIDE NEEDS AND ADVISE THE DEPARTMENT AND THE LEGISLA-
TURE REGARDING SPECIFIC DRUG TREATMENT PROGRAM OPTIONS NEEDED FOR DRUG
OFFENDERS.
(B) RECOMMEND THE ESTABLISHMENT OF LOCAL ELIGIBILITY STANDARDS FOR
LOCAL DRUG TREATMENT PROGRAMS WHICH MEET THE NEEDS OF THE PLAN.
(C) RECOMMEND DRUG TREATMENT GUIDELINES.
(D) RECOMMEND DRUG PUNISHMENT PROGRAM POLICIES.
(E) RECOMMEND TO THE DEPARTMENT THOSE PROVIDERS WHO MEET OR EXCEED THE
MINIMUM STANDARDS ESTABLISHED BY THE BOARD.
(F) PROVIDE OVERVIEW OF THE QUALITY ASSURANCE CONDUCTED BY THE STATE-
WIDE PROGRAMS MANAGER OF THE DRUG TREATMENT SERVICES IN THE PROGRAM AND
REPORT AND ADVISE THE DEPARTMENT OF NEEDED MODIFICATIONS.
(G) INFORM AND EDUCATE THE GENERAL PUBLIC REGARDING THE NEED FOR
DIVERSION OF ELIGIBLE DRUG OFFENDERS FROM CONFINEMENT IN CORRECTIONAL
INSTITUTIONS TO DRUG TREATMENT PROGRAMS.
A. 2808 37
4. NO MEMBER OF THE BOARD SHALL BE A RECIPIENT OF CONTRACTUAL SERVICES
FOR THE ASSESSMENT, TREATMENT, OR EVALUATION OF OFFENDERS UNDER THIS
ARTICLE.
5. THE BOARD SHALL MEET REGULARLY TO TRANSACT BUSINESS AND SHALL ELECT
ITS OWN CHAIRMAN, VICE CHAIRMAN, SECRETARY, AND NECESSARY COMMITTEES.
6. BOARD MEMBERS SHALL RECEIVE PER DIEM AND TRAVEL EXPENSES.
S 435.75 DRUG PUNISHMENT PROGRAM QUALITY ASSURANCE COMPONENT; DUTIES OF
STATEWIDE PROGRAM MANAGER.
IN ORDER TO ENSURE THE QUALITY AND APPROPRIATENESS OF THE DELIVERY OF
SERVICES WITHIN THE DRUG PUNISHMENT PROGRAM, THE STATEWIDE PROGRAM
MANAGER SHALL:
1. CONDUCT AN ANNUAL UTILIZATION REVIEW TO ENSURE THE APPROPRIATE USE
AND EFFICIENT SCHEDULING OF DRUG PUNISHMENT PROGRAM RESOURCES AND TO
ASSIST IN THE MAINTENANCE OF HIGH QUALITY CARE AT ALL TREATMENT INSTITU-
TIONAL COMMUNITIES. THE UTILIZATION REVIEW SHALL INCLUDE AN OBJECTIVE
REVIEW, THROUGHOUT THE DRUG PUNISHMENT PROGRAM, OF THE FOLLOWING:
(A) ADMISSIONS AND TERMINATIONS DECISIONS.
(B) TRANSITIONAL CARE PLANNING.
(C) DISCHARGE PLANNING.
(D) CONTINUED STAY DECISIONS.
(E) USE OF ADJUNCT REFERRAL SERVICES.
2. CONDUCT ONGOING CLIENT CARE MONITORING TO ENSURE THAT QUALITY
SERVICES ARE DELIVERED. CLIENT CARE MONITORING SHALL CONSIST OF REGULAR
REVIEWS OF THE INDIVIDUALIZED DRUG PUNISHMENT PLANS OF DRUG OFFENDERS,
APPROPRIATE REVIEWS OF DIFFICULT CASES, AND TIMELY AND APPROPRIATE
CRISIS MANAGEMENT. CRISIS MANAGEMENT IS APPROPRIATE WHERE:
(A) THE DRUG OFFENDER IS DETERMINED TO BE A DANGER TO HIMSELF OR
OTHERS;
(B) THE DRUG OFFENDER IS AT HIGH RISK FOR RELAPSE; OR
(C) THE DRUG OFFENDER HAS DIFFICULTY CARRYING OUT HIS DRUG PUNISHMENT
PLAN.
3. CONDUCT ONGOING QUALITY MONITORING AND EVALUATION OF THE APPROPRI-
ATENESS OF TREATMENT PROVIDED TO DRUG OFFENDERS, FOCUSING ON STAFF
PERFORMANCE RATHER THAN ON THE OFFENDERS.
4. PROVIDE STAFF DEVELOPMENT PROGRAMS FOR DRUG PUNISHMENT PROGRAM
ASSESSMENT AND TREATMENT PROVIDERS, INCLUDING INITIAL TRAINING AND
ORIENTATION.
5. PROVIDE TREATMENT COMMUNITY DESIGN ASSISTANCE PURSUANT TO CONTRAC-
TUAL AUTHORIZATION AS PROVIDED IN PARAGRAPH (D) OF SUBDIVISION TWO OF
SECTION 435.25 OF THIS ARTICLE.
S 435.80 DRUG PUNISHMENT PROGRAM EVALUATION.
IN ORDER TO DETERMINE THE EFFECTIVENESS OF THE DRUG PUNISHMENT
PROGRAM, THE DEPARTMENT SHALL CONTRACT WITH A PROGRAM EVALUATOR OF THE
STATEWIDE DRUG PUNISHMENT PROGRAM TO CONDUCT AN ONGOING COMPREHENSIVE
EVALUATION PROGRAM PURSUANT TO THIS PART.
1. THE GOALS OF THE EVALUATION PROGRAM ARE:
(A) TO DETERMINE THE EFFECTIVENESS OF THE DRUG PUNISHMENT PROGRAM IN
REDUCING CRIMINAL BEHAVIOR, ARRESTS, AND COMMITMENTS TO THE STATE
CORRECTIONAL SYSTEM.
(B) TO EVALUATE THE POST-TREATMENT COMMUNITY ADJUSTMENT OF DRUG OFFEN-
DERS IN THE AREAS OF DRUG ABUSE, EMPLOYMENT, INVOLVEMENT IN TREATMENT
SERVICES, AND USE OF OTHER COMMUNITY SERVICES.
(C) TO EXAMINE THE COST EFFECTIVENESS OF THE DRUG PUNISHMENT PROGRAM
RELATIVE TO THE COSTS OF TRADITIONAL INSTITUTIONAL COMMITMENT AND COMMU-
NITY SUPERVISION.
A. 2808 38
(D) TO ASSESS IMPROVEMENTS MADE BY DRUG OFFENDERS THROUGHOUT THE PHAS-
ES OF THE DRUG PUNISHMENT PROGRAM IN THE AREAS OF SKILLS DEVELOPMENT,
EMOTIONAL FUNCTIONING, AND MOTIVATION.
(E) TO DETERMINE WHETHER DRUG PUNISHMENT PROGRAM ASSESSMENT AND TREAT-
MENT ARE PROVIDED AS INTENDED AND IN ACCORDANCE WITH CURRICULA MANUALS
AND OTHER PROVIDER GUIDELINES. THE EVALUATION PROGRAM SHALL DETERMINE
DRUG PUNISHMENT PROGRAM EFFECTIVENESS THROUGH THE USE OF MEASURABLE
OUTCOMES THAT INCLUDE ANALYSIS, USING ACCEPTABLE TESTING STANDARDS, OF
THE PATTERNS OF DRUG OFFENDERS' AVOIDANCE OF OR RELAPSE INTO CRIMINAL
BEHAVIOR, THE PATTERNS OF DRUG OFFENDERS' EMPLOYMENT PROGRESS, THE
PAYMENT OF VICTIM RESTITUTION BY DRUG OFFENDERS, AND OTHER INDICES OF
THE PROGRESS OR FAILURE OF DRUG OFFENDERS DURING AND AFTER THEIR TERMS
IN THE DRUG PUNISHMENT PROGRAM. EVALUATION DATA SHALL BE COLLECTED AT
EACH PHASE OF THE DRUG PUNISHMENT PROGRAM, INCLUDING INITIAL SCREENING,
ASSESSMENT, INTAKE, PHASES I, II, AND III OF TREATMENT, AND FOLLOWING
THE RELEASE OR TERMINATION OF DRUG OFFENDERS FROM THE DRUG PUNISHMENT
PROGRAM.
2. EVALUATION PROGRAM STAFF SHALL CONDUCT THREE PRIMARY ACTIVITIES:
(A) EVALUATION OF POST-TREATMENT OUTCOMES TO EXAMINE THE EFFECTS OF
TREATMENT ON DRUG OFFENDER OUTCOMES FOLLOWING COMPLETION OF THE DRUG
PUNISHMENT PROGRAM. MAJOR AREAS TO BE ADDRESSED INCLUDE THE IMPACT OF
THE PROGRAM'S TREATMENT INTERVENTIONS ON POST TREATMENT CRIMINAL BEHAV-
IOR, DRUG ABUSE, EMPLOYMENT, AND SOCIAL FUNCTIONING. THIS EVALUATION
COMPONENT SHALL IDENTIFY PATTERNS OF RECIDIVISM AND SHALL ALSO ANALYZE
THE COST EFFECTIVENESS OF THE DRUG PUNISHMENT PROGRAM.
(B) ANALYSIS OF PRETREATMENT DRUG OFFENDER CHARACTERISTICS AND BEHAV-
IORS TO ESTABLISH A BASELINE OF CRIMINAL BEHAVIOR, DRUG ABUSE, MENTAL
HEALTH STATUS, EMPLOYMENT, AND IMPAIRMENT IN PSYCHOSOCIAL FUNCTIONING OF
SUCH PRETREATMENT DRUG OFFENDERS, TO ASSIST IN EVALUATING THE PROGRESS
MADE BY DRUG OFFENDERS DURING THE DRUG PUNISHMENT PROGRAM AND IN IDENTI-
FYING FACTORS THAT INFLUENCE DRUG PUNISHMENT PROGRAM OUTCOME.
(C) EVALUATION OF PROGRESS BY DRUG OFFENDERS, AND EVALUATION OF TREAT-
MENT INTEGRITY, TO EXAMINE EVIDENCE OF PROGRESS BY DRUG OFFENDERS AT
PREDETERMINED MARKERS DURING THE ENTIRE PERIOD OF THEIR INVOLVEMENT IN
THE DRUG PUNISHMENT PROGRAM. EVALUATION SHALL ASSESS WHETHER TREATMENT
INTERVENTIONS ARE PROVIDED AS INTENDED AND ARE OF SUFFICIENT QUALITY AND
INTENSITY TO MEET THE DRUG PUNISHMENT PROGRAM GOALS.
S 435.85 FINANCIAL CONSIDERATIONS FOR ASSESSMENT, TREATMENT, AND TRANS-
PORTATION OF DRUG OFFENDERS.
1. PROVIDERS OF ASSESSMENT, TREATMENT, AND TRANSPORTATION SERVICES TO
DRUG OFFENDERS PURSUANT TO THIS ARTICLE SHALL SEEK REIMBURSEMENT FOR THE
EXPENSES INCURRED IN PROVIDING ASSESSMENT, TREATMENT, OR TRANSPORTATION
FROM AN INSURANCE COMPANY, HEALTH CARE CORPORATION, OR OTHER SOURCE AS
TO ANY DRUG OFFENDER WHO IS COVERED BY AN INSURANCE POLICY OR SUBSCRIBES
TO A HEALTH CARE CORPORATION OR OTHER SOURCE FOR SUCH EXPENSES.
2. UPON A SHOWING THAT REIMBURSEMENT UNDER SUBDIVISION ONE OF THIS
SECTION IS NOT AVAILABLE, THE COSTS OF ASSESSMENT, TREATMENT, AND TRANS-
PORTATION SHALL BE COMPENSATED IN ACCORDANCE WITH THE CONTRACT
PROVISIONS MUTUALLY AGREED UPON BY THE DEPARTMENT AND THE PROVIDER,
WHICH MAY INCLUDE PROSPECTIVE PAYMENTS PURSUANT TO SUBDIVISION FOUR OF
THIS SECTION.
3. A DRUG OFFENDER WHO HAS HEALTH INSURANCE, SUBSCRIBES TO A HEALTH
CARE CORPORATION, OR RECEIVES HEALTH CARE BENEFITS FROM ANY OTHER SOURCE
SHALL ASSIGN SUCH BENEFITS TO THE SERVICE PROVIDER, AS APPROPRIATE.
4. IN ORDER TO CONTAIN COSTS WHILE ENHANCING ADEQUACY AND ACCESSIBIL-
ITY OF TREATMENT FOR DRUG OFFENDERS, THE DEPARTMENT SHALL NEGOTIATE WITH
A. 2808 39
DRUG PUNISHMENT PROGRAM ASSESSMENT, TREATMENT, AND TRANSPORTATION
PROVIDERS TO ESTABLISH PROSPECTIVE PAYMENT ARRANGEMENTS THAT PROVIDE
FINANCIAL INCENTIVES FOR THE CONTAINMENT OF THE COSTS OF THE PROGRAM.
5. THE PROSPECTIVE PAYMENT SYSTEM ESTABLISHED PURSUANT TO THIS SECTION
SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING ELEMENTS:
(A) A MAXIMUM ALLOWABLE PAYMENT AMOUNT ESTABLISHED FOR INDIVIDUAL
PROVIDER SERVICES, WHICH IS PRESET AT THE BEGINNING OF THE BUDGET YEAR
OF THE PROVIDER AND FIXED FOR THE ENTIRETY OF THAT BUDGET YEAR, EXCEPT
WHEN EXTENUATING AND UNUSUAL CIRCUMSTANCES WARRANT RENEGOTIATION.
(B) TIMELY PAYMENT TO THE PROVIDER OF THE NEGOTIATED PAYMENT AMOUNT.
(C) ACCEPTANCE BY THE PROVIDER OF THE NEGOTIATED PAYMENT AMOUNT AS
PAYMENT IN FULL, WHICH SHALL INCLUDE ANY DEDUCTIBLE OR COINSURANCE
PROVIDED FOR.
(D) UTILIZATION REVIEWS FOR APPROPRIATENESS OF THE PROVIDER'S
SERVICES.
6. NOTHING CONTAINED IN THIS SECTION PROHIBITS THE INCLUSION OF ANY
OTHER COST-EFFECTIVE FUNDING FORMULA.
S 4. This act shall take effect on January 1, 2010; provided, however,
that any rules and regulations necessary to implement the provisions of
this act on its effective date are authorized and directed to be promul-
gated, amended or repealed on or before such effective date.
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