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

                                  7358

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 31, 2009
                               ___________

Introduced  by  M. of A. MILLER, TOWNSEND -- Multi-Sponsored by -- M. of
  A. BURLING -- read once  and  referred  to  the  Committee  on  Mental
  Health, Mental Retardation and Developmental Disabilities

AN  ACT  to  amend  the  mental  hygiene  law  and the executive law, in
  relation to requiring mental retardation and  developmental  disabili-
  ties  facilities  and  providers to submit fingerprints of current and
  prospective employees for the purpose of a search of criminal  history
  records  of the division of criminal justice services and establishing
  a mental retardation and developmental disabilities worker registry

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

  Section  1.  Title  C of the mental hygiene law is amended by adding a
new article 14 to read as follows:
                               ARTICLE 14
        REVIEW OF CRIMINAL HISTORY INFORMATION CONCERNING CURRENT
    AND PROSPECTIVE EMPLOYEES OF MENTAL RETARDATION AND DEVELOPMENTAL
                  DISABILITIES FACILITIES AND PROVIDERS
SECTION 14.01 DEFINITIONS.
        14.03 REQUESTS  FOR  CRIMINAL  HISTORY  INFORMATION   CONCERNING
                  CURRENT AND PROSPECTIVE EMPLOYEES.
        14.05 MENTAL  RETARDATION  AND DEVELOPMENTAL DISABILITIES WORKER
                  REGISTRY.
S 14.01 DEFINITIONS.
  FOR THE PURPOSES OF THIS ARTICLE:
  1.  "CRIMINAL  HISTORY  INFORMATION"  SHALL  MEAN  A  RECORD  OF   ALL
CONVICTIONS  OF  CRIMES  MAINTAINED  ON AN INDIVIDUAL BY THE DIVISION OF
CRIMINAL JUSTICE SERVICES PURSUANT TO PARAGRAPH (C) OF SUBDIVISION  FOUR
OF SECTION EIGHT HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW.
  2.  "EMPLOYER"  SHALL MEAN ANY FACILITY OR OTHER ENTITY PROVIDING CARE
OF OR SERVICES TO ANY PERSON, WHICH FACILITY OR OTHER  ENTITY  IS  UNDER
THE  JURISDICTION  OF  THE OFFICE DUE TO ITS HAVING OR BEING REQUIRED TO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09673-01-9
              

A. 7358                             2

HAVE ANY LICENSE, CERTIFICATE, PERMIT, OR OTHER AUTHORIZATION ISSUED  BY
THE OFFICE.  THE TERM "EMPLOYER" INCLUDES THE OFFICE.
  3.  "EMPLOYEE"  SHALL  MEAN  ANY  PERSON  EMPLOYED  BY  AN EMPLOYER OR
EMPLOYED BY THE OFFICE IN A CAPACITY IN WHICH SUCH PERSON IS ENGAGED  IN
THE PROVISION OF CARE OR SERVICES TO A PERSON IN NEED THEREOF.
  4. "CURRENT EMPLOYEE" SHALL MEAN AND INCLUDE ANY INDIVIDUAL WHO BECAME
AN EMPLOYEE OF AN EMPLOYER PRIOR TO THE EFFECTIVE DATE OF THIS ARTICLE.
  5.  "PROSPECTIVE  EMPLOYEE"  SHALL  MEAN AND INCLUDE AN INDIVIDUAL NOT
CURRENTLY AN EMPLOYEE OF  AN  EMPLOYER  WHO  FILES  AN  APPLICATION  FOR
EMPLOYMENT  AND  THE  EMPLOYER HAS A REASONABLE EXPECTATION TO HIRE SUCH
INDIVIDUAL.
S 14.03 REQUESTS FOR CRIMINAL HISTORY INFORMATION CONCERNING CURRENT AND
          PROSPECTIVE EMPLOYEES.
  1. AN EMPLOYER SHALL REQUEST AND IS AUTHORIZED  TO  RECEIVE  FROM  THE
DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  CRIMINAL  HISTORY INFORMATION
CONCERNING EACH CURRENT AND PROSPECTIVE EMPLOYEE, AND TO  CONSIDER  SUCH
INFORMATION  IN ACCORDANCE WITH ARTICLE TWENTY-THREE-A OF THE CORRECTION
LAW, SUBJECT TO THE FOLLOWING RESTRICTIONS:
  (A) AN EMPLOYER SHALL DESIGNATE ONE PERSON IN ITS EMPLOY WHO SHALL  BE
AUTHORIZED  TO REQUEST, RECEIVE AND REVIEW CRIMINAL HISTORY INFORMATION,
AND ONLY SUCH PERSON AND THE NEW OR PROSPECTIVE EMPLOYEE  TO  WHICH  THE
CRIMINAL  HISTORY INFORMATION RELATES SHALL HAVE ACCESS TO SUCH INFORMA-
TION; PROVIDED,  HOWEVER,  THAT  CRIMINAL  HISTORY  INFORMATION  MAY  BE
DISCLOSED  TO  OTHER  PERSONNEL  AUTHORIZED  BY  THE  EMPLOYER  WHO  ARE
EMPOWERED BY SUCH EMPLOYER TO MAKE HIRING DECISIONS  CONCERNING  CURRENT
OR  PROSPECTIVE EMPLOYEES AND PROVIDED FURTHER THAT SUCH OTHER PERSONNEL
SHALL ALSO BE SUBJECT TO THE CONFIDENTIALITY REQUIREMENTS AND ALL  OTHER
PROVISIONS  OF  THIS  ARTICLE.  AN EMPLOYER SHALL NOTIFY THE DIVISION OF
CRIMINAL JUSTICE SERVICES OF EACH PERSON AUTHORIZED TO  HAVE  ACCESS  TO
CRIMINAL HISTORY INFORMATION PURSUANT TO THIS SECTION;
  (B)  AN  EMPLOYER  REQUESTING CRIMINAL HISTORY INFORMATION PURSUANT TO
THIS SECTION SHALL DO SO BY COMPLETING A FORM DEVELOPED FOR SUCH PURPOSE
BY THE DIVISION OF CRIMINAL JUSTICE SERVICES. SUCH FORM SHALL INCLUDE  A
SWORN  STATEMENT  OF  THE  PERSON DESIGNATED BY THE EMPLOYER TO REQUEST,
RECEIVE AND REVIEW CRIMINAL HISTORY INFORMATION  PURSUANT  TO  PARAGRAPH
(A)  OF  THIS  SUBDIVISION CERTIFYING THAT (I) THE PERSON WHOSE CRIMINAL
HISTORY INFORMATION IS REQUESTED IS NOT PRESENTLY BUT HAS APPLIED TO  BE
AN EMPLOYEE, OR IS A CURRENT EMPLOYEE; (II) SUCH CRIMINAL HISTORY INFOR-
MATION  WILL  BE  USED BY THE EMPLOYER SOLELY FOR PURPOSES AUTHORIZED BY
THIS ARTICLE; AND (III) THE EMPLOYER AND ITS STAFF ARE AWARE OF AND WILL
ABIDE BY THE CONFIDENTIALITY REQUIREMENTS AND ALL  OTHER  PROVISIONS  OF
THIS ARTICLE; AND
  (C)  THE  PERSON  DESIGNATED  BY  AN  EMPLOYER FOR RECEIPT OF CRIMINAL
HISTORY INFORMATION PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION  SHALL
UPON  RECEIPT IMMEDIATELY MARK SUCH CRIMINAL HISTORY INFORMATION "CONFI-
DENTIAL", AND SHALL AT ALL TIMES MAINTAIN SUCH CRIMINAL HISTORY INFORMA-
TION IN A SECURE PLACE.  ANY PERSON WHO WILLFULLY PERMITS THE RELEASE OF
ANY CONFIDENTIAL CRIMINAL HISTORY INFORMATION CONTAINED IN THE REPORT TO
PERSONS NOT PERMITTED BY THIS ARTICLE TO RECEIVE SUCH INFORMATION  SHALL
BE GUILTY OF A MISDEMEANOR.  ANY UNAUTHORIZED DISCLOSURE OF FINGERPRINTS
OR CRIMINAL HISTORY INFORMATION OBTAINED BY AN EMPLOYER PURSUANT TO THIS
ARTICLE  SHALL ALSO ENTITLE THE SUBJECT OF SUCH FINGERPRINTS OR CRIMINAL
HISTORY INFORMATION TO RECOVER  FROM  THE  EMPLOYER  A  CIVIL  AWARD  OF
DAMAGES RESULTING FROM SUCH UNAUTHORIZED DISCLOSURE, TOGETHER WITH COSTS
AND REASONABLE ATTORNEY'S FEES.

A. 7358                             3

  2.  TO  THE  EXTENT  PERMITTED  BY LAW, AN EMPLOYER MAY REQUEST FROM A
CURRENT OR PROSPECTIVE EMPLOYEE A STATEMENT OF HIS OR HER PRIOR CRIMINAL
CONVICTIONS IN THIS STATE OR ANY OTHER JURISDICTION. PRIOR TO REQUESTING
CRIMINAL HISTORY  INFORMATION  CONCERNING  ANY  CURRENT  OR  PROSPECTIVE
EMPLOYEE, EACH EMPLOYER SHALL:
  (A)  INFORM  THE  CURRENT  OR PROSPECTIVE EMPLOYEE IN WRITING THAT THE
EMPLOYER IS REQUIRED TO REQUEST HIS OR HER CRIMINAL HISTORY  INFORMATION
FROM  THE DIVISION OF CRIMINAL JUSTICE SERVICES AND REVIEW SUCH INFORMA-
TION PURSUANT TO THIS SECTION;
  (B) INFORM THE CURRENT OR PROSPECTIVE EMPLOYEE THAT BEFORE THE EMPLOY-
ER REQUESTS SUCH CRIMINAL HISTORY INFORMATION, THE CURRENT  OR  PROSPEC-
TIVE EMPLOYEE HAS THE RIGHT TO OBTAIN, REVIEW AND SEEK CORRECTION OF HIS
OR  HER  CRIMINAL HISTORY INFORMATION PURSUANT TO REGULATIONS AND PROCE-
DURES ESTABLISHED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES;
  (C) OBTAIN THE SIGNED INFORMED CONSENT OF THE CURRENT  OR  PROSPECTIVE
EMPLOYEE ON A FORM SUPPLIED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES
WHICH INDICATES THAT SUCH PERSON HAS:
  (I)  BEEN  INFORMED  OF  THE RIGHT AND PROCEDURES NECESSARY TO OBTAIN,
REVIEW AND SEEK CORRECTION OF HIS OR HER CRIMINAL HISTORY INFORMATION;
  (II) BEEN INFORMED OF THE REASON FOR THE REQUEST FOR HIS OR HER CRIMI-
NAL HISTORY INFORMATION;
  (III) CONSENTED TO SUCH REQUEST; AND
  (D) UPON RECEIVING SUCH WRITTEN CONSENT,  GIVEN  THE  FINGERPRINTS  OF
SUCH CURRENT OR PROSPECTIVE EMPLOYEE PURSUANT TO REGULATIONS ESTABLISHED
BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  3. A CURRENT OR PROSPECTIVE EMPLOYEE MAY WITHDRAW FROM THE APPLICATION
PROCESS,  WITHOUT PREJUDICE, AT ANY TIME REGARDLESS OF WHETHER OR NOT HE
OR SHE HAS REVIEWED HIS OR  HER  CRIMINAL  HISTORY  INFORMATION  OR  THE
EMPLOYER  HAS  RECEIVED CRIMINAL HISTORY INFORMATION. WHERE A CURRENT OR
PROSPECTIVE EMPLOYEE WITHDRAWS FROM THE APPLICATION PROCESS, ANY FINGER-
PRINTS AND CRIMINAL  HISTORY  INFORMATION  CONCERNING  SUCH  CURRENT  OR
PROSPECTIVE  EMPLOYEE  RECEIVED  BY  THE  EMPLOYER  SHALL BE IMMEDIATELY
RETURNED TO SUCH CURRENT OR PROSPECTIVE EMPLOYEE BY  THE  PERSON  DESIG-
NATED  FOR RECEIPT OF CRIMINAL HISTORY INFORMATION PURSUANT TO PARAGRAPH
(A) OF SUBDIVISION ONE OF THIS SECTION.
  4. IN ALL CASES THE  FINGERPRINTS  AND  CRIMINAL  HISTORY  INFORMATION
CONCERNING  A  CURRENT  OR  PROSPECTIVE  EMPLOYEE  SHALL  BE IMMEDIATELY
RETURNED TO SUCH PERSON BY THE PERSON DESIGNATED FOR RECEIPT OF CRIMINAL
HISTORY INFORMATION UPON THE DENIAL  OF  EMPLOYMENT  OR  TERMINATION  OF
EMPLOYMENT OF SUCH EMPLOYEE.
  5.  THE  DIVISION OF CRIMINAL JUSTICE SERVICES SHALL PROVIDE REQUESTED
CRIMINAL HISTORY INFORMATION AND  RETURN  FINGERPRINTS  TO  AN  EMPLOYER
WITHIN FIFTEEN BUSINESS DAYS AFTER THE RECEIPT OF A REQUEST FOR CRIMINAL
HISTORY INFORMATION IF SUCH REQUEST IS:
  (A) MADE BY THE PERSON DESIGNATED BY THE EMPLOYER FOR RECEIPT OF CRIM-
INAL HISTORY INFORMATION PURSUANT TO PARAGRAPH (A) OF SUBDIVISION ONE OF
THIS  SECTION AND ACCOMPANIED BY THE CERTIFICATION REQUIRED BY PARAGRAPH
(B) OF SUBDIVISION ONE OF THIS SECTION;
  (B) ACCOMPANIED BY THE COMPLETED FORM DESCRIBED IN  PARAGRAPH  (C)  OF
SUBDIVISION TWO OF THIS SECTION; AND
  (C) ACCOMPANIED BY FINGERPRINTS OF THE CURRENT OR PROSPECTIVE EMPLOYEE
OBTAINED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF THIS SECTION.
  6. THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL
PROMULGATE   ALL  RULES  AND  REGULATIONS  NECESSARY  TO  IMPLEMENT  THE
PROVISIONS OF THIS ARTICLE, WHICH SHALL  INCLUDE  CONVENIENT  PROCEDURES
FOR CURRENT AND PROSPECTIVE EMPLOYEES TO PROMPTLY VERIFY THE ACCURACY OF

A. 7358                             4

THEIR CRIMINAL HISTORY INFORMATION AND, TO THE EXTENT AUTHORIZED BY LAW,
TO HAVE ACCESS TO RELEVANT DOCUMENTS RELATED THERETO.
  7. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED OR INTERPRETED TO IN ANY
WAY  DIMINISH  THE INTEGRITY OF COLLECTIVE BARGAINING AGREEMENTS NEGOTI-
ATED BETWEEN AN EMPLOYER AND  ANY  CERTIFIED  OR  AUTHORIZED  COLLECTIVE
BARGAINING  AGENT FOR AN EMPLOYEE, OR TO DIMINISH RIGHTS WHICH ACCRUE TO
SUCH EMPLOYEES PURSUANT TO SUCH AGREEMENTS.
S 14.05 MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES WORKER  REGIS-
          TRY.
  1.  DEFINITIONS.  AS  USED  IN  THIS  SECTION, "MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES WORKER REGISTRY" MEANS THE SYSTEM OF INFORMA-
TION PERTAINING TO HOME CARE WORKERS, AS ESTABLISHED BY THE OFFICE UNDER
THIS SECTION.
  2. THE OFFICE SHALL ESTABLISH, DIRECTLY OR THROUGH CONTRACT, A  STATE-
WIDE  MENTAL  RETARDATION AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY
OF ALL MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES  WORKERS.  SUCH
REGISTRY  SHALL  BE  AN  AUTOMATED  SYSTEM WITH IMMEDIATE ACCESS THROUGH
TELEPHONE AND ANY OTHER APPROPRIATE TECHNOLOGY. THE  MENTAL  RETARDATION
AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY SHALL INCLUDE THE FOLLOW-
ING  INFORMATION  PERTAINING TO THE MENTAL RETARDATION AND DEVELOPMENTAL
DISABILITIES WORKER:
  (A) NAME AND ALIAS OR PREVIOUSLY  USED  NAME,  WHERE  APPLICABLE,  AND
SOCIAL SECURITY NUMBER;
  (B)  MENTAL  RETARDATION  AND  DEVELOPMENTAL  DISABILITIES  EMPLOYMENT
HISTORY, INCLUDING THE NAME, ADDRESS, PHONE OF THE CURRENT AND PRECEDING
EMPLOYER AND EMPLOYERS OVER THE LAST THREE  YEARS  AND  THE  APPROXIMATE
EMPLOYMENT STARTING AND TERMINATION DATES; AND
  (C)  NEW  YORK  STATE  APPROVED  TRAINING AND CERTIFICATION, INCLUDING
APPROXIMATE DATES, AS REQUIRED BY REGULATIONS UNDER THIS ARTICLE.
  3. EACH EMPLOYER SHALL, ON A SCHEDULE AS DETERMINED BY THE DEPARTMENT,
FILE WITH THE MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES REGISTRY
INFORMATION REQUIRED UNDER SUBDIVISION TWO OF THIS SECTION. THE INFORMA-
TION SHALL BE IN A FORM DETERMINED BY THE OFFICE AND SHALL BE AS CURRENT
AND THOROUGH AS REASONABLY POSSIBLE.
  4. EACH EMPLOYER PROVIDING TRAINING FOR MENTAL RETARDATION AND  DEVEL-
OPMENTAL  DISABILITIES  WORKERS  OR  PROSPECTIVE  MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES WORKERS SHALL, ON A  SCHEDULE  DETERMINED  BY
THE DEPARTMENT, FILE WITH THE MENTAL RETARDATION AND DEVELOPMENTAL DISA-
BILITIES  WORKER  REGISTRY INFORMATION REQUIRED UNDER PARAGRAPHS (A) AND
(C) OF SUBDIVISION TWO OF THIS SECTION ON PERSONS SUCCESSFULLY  COMPLET-
ING A NEW YORK STATE APPROVED PROGRAM OF TRAINING.
  5.  AS  PART  OF THE MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES
WORKER EMPLOYMENT APPLICATION PROCESS, AN  EMPLOYER  SHALL  CONTACT  THE
MENTAL  RETARDATION  AND  DEVELOPMENTAL  DISABILITIES WORKER REGISTRY TO
ASSIST IN DETERMINING A WORKER'S SUITABILITY FOR EMPLOYMENT. INFORMATION
PERTAINING TO THE WORKER CONTAINED IN THE MENTAL RETARDATION AND  DEVEL-
OPMENTAL  DISABILITIES WORKER REGISTRY SHALL BE PROVIDED PROMPTLY TO THE
EMPLOYER TO ASSIST THE EMPLOYER IN MAKING THE EMPLOYMENT DECISION.
  6. EACH EMPLOYER SHALL MAKE A GOOD FAITH DOCUMENTED  EFFORT  TO  CHECK
ALL REGISTRY-LISTED EMPLOYERS OF A WORKER IN A TIMELY MANNER.
  7.  (A)  EACH  EMPLOYER  SHALL  DESIGNATE ONE PERSON IN ITS EMPLOY WHO
SHALL BE AUTHORIZED TO REQUEST, RECEIVE AND  REVIEW  MENTAL  RETARDATION
AND  DEVELOPMENTAL  DISABILITIES  WORKER  REGISTRY INFORMATION, AND ONLY
SUCH PERSON AND THE MENTAL RETARDATION  AND  DEVELOPMENTAL  DISABILITIES
WORKER TO WHICH THE INFORMATION RELATES SHALL HAVE ACCESS TO SUCH INFOR-
MATION; PROVIDED, HOWEVER, THAT THE MENTAL RETARDATION AND DEVELOPMENTAL

A. 7358                             5

DISABILITIES  WORKER  REGISTRY  INFORMATION  MAY  BE  DISCLOSED TO OTHER
PERSONNEL AUTHORIZED BY THE EMPLOYER TO MAKE HIRING DECISIONS CONCERNING
PROSPECTIVE EMPLOYEES AND PROVIDED FURTHER  THAT  SUCH  OTHER  PERSONNEL
SHALL  ALSO BE SUBJECT TO THE CONFIDENTIALITY REQUIREMENTS AND ALL OTHER
PROVISIONS OF THIS SECTION.  AN EMPLOYER SHALL NOTIFY THE OFFICE OF EACH
PERSON AUTHORIZED TO HAVE ACCESS TO CRIMINAL HISTORY INFORMATION  PURSU-
ANT TO THIS SECTION;
  (B)  AN EMPLOYER REQUESTING MENTAL RETARDATION AND DEVELOPMENTAL DISA-
BILITIES WORKER REGISTRY INFORMATION PURSUANT TO THIS SECTION  SHALL  DO
SO  BY  COMPLETING A FORM DEVELOPED FOR SUCH PURPOSE BY THE OFFICE. SUCH
FORM SHALL INCLUDE A SWORN STATEMENT OF THE  PERSON  DESIGNATED  BY  THE
EMPLOYER  TO REQUEST, RECEIVE AND REVIEW MENTAL RETARDATION AND DEVELOP-
MENTAL DISABILITIES WORKER REGISTRY INFORMATION  PURSUANT  TO  PARAGRAPH
(A)  OF THIS SUBDIVISION CERTIFYING THAT (I) SUCH MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES WORKER REGISTRY INFORMATION WILL BE  USED  BY
THE  EMPLOYER  SOLELY  FOR PURPOSES AUTHORIZED BY THIS SECTION; AND (II)
THE EMPLOYER AND ITS STAFF ARE AWARE OF AND WILL ABIDE BY THE  CONFIDEN-
TIALITY REQUIREMENTS AND ALL OTHER PROVISIONS OF THIS SECTION; AND
  (C)  THE PERSON DESIGNATED BY AN EMPLOYER FOR RECEIPT OF MENTAL RETAR-
DATION AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY INFORMATION PURSU-
ANT TO PARAGRAPH (A) OF THIS SUBDIVISION SHALL UPON RECEIPT  IMMEDIATELY
MARK  SUCH  MENTAL  RETARDATION  AND  DEVELOPMENTAL  DISABILITIES WORKER
REGISTRY INFORMATION "CONFIDENTIAL", AND SHALL  AT  ALL  TIMES  MAINTAIN
SUCH  MENTAL  RETARDATION AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY
INFORMATION IN A SECURE PLACE. ANY  PERSON  WHO  WILLFULLY  PERMITS  THE
RELEASE  OF  CONFIDENTIAL MENTAL RETARDATION AND DEVELOPMENTAL DISABILI-
TIES WORKER REGISTRY  INFORMATION  TO  PERSONS  NOT  PERMITTED  BY  THIS
SECTION  TO RECEIVE SUCH INFORMATION SHALL BE SUBJECT TO A CIVIL PENALTY
OF UP TO FIVE THOUSAND DOLLARS.  ANY UNAUTHORIZED DISCLOSURE  OF  MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES REGISTRY INFORMATION OBTAINED
BY  AN EMPLOYER PURSUANT TO THIS ARTICLE SHALL ALSO ENTITLE THE EMPLOYEE
WHO IS THE SUBJECT OF SUCH INFORMATION TO RECOVER FROM  THE  EMPLOYER  A
CIVIL  AWARD  OF  DAMAGES  RESULTING  FROM SUCH UNAUTHORIZED DISCLOSURE,
TOGETHER WITH COSTS AND REASONABLE ATTORNEY'S FEES.
  8. EACH EMPLOYER SHALL INFORM THE EMPLOYEE THAT SUCH EMPLOYEE HAS  THE
RIGHT  TO OBTAIN, REVIEW AND SEEK CORRECTION OF HIS OR HER MENTAL RETAR-
DATION AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY INFORMATION PURSU-
ANT TO REGULATIONS AND PROCEDURES ESTABLISHED BY THE OFFICE.
  9. (A) THE MENTAL RETARDATION AND  DEVELOPMENTAL  DISABILITIES  WORKER
REGISTRY  SHALL,  ON  WRITTEN  REQUEST BY AN EMPLOYEE, PROMPTLY GIVE THE
WORKER A COPY OF HIS OR HER MENTAL RETARDATION AND  DEVELOPMENTAL  DISA-
BILITIES WORKER REGISTRY FILE.
  (B)  IF AN EMPLOYEE DISPUTES ANY INFORMATION IN THE MENTAL RETARDATION
AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY, THE  MENTAL  RETARDATION
AND  DEVELOPMENTAL  DISABILITIES WORKER REGISTRY SHALL PROMPTLY INVESTI-
GATE AND, WHERE  APPROPRIATE,  CORRECT  THE  DISPUTED  INFORMATION.  THE
MENTAL  RETARDATION AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY SHALL
PROMPTLY NOTIFY THE EMPLOYEE OF THE RESULTS OF  THE  INVESTIGATION,  ITS
DECISION  AND  HIS  OR  HER RIGHTS UNDER THIS SUBDIVISION, INCLUDING THE
RIGHT TO SEEK UNION OR OTHER REPRESENTATION.
  (C) IF, AFTER CONDUCTING THE INVESTIGATION, THE MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES WORKER REGISTRY FINDS  THAT  AN  ITEM  IS  IN
ERROR OR CANNOT BE VERIFIED, IT SHALL:
  (I) PROMPTLY EXPUNGE THE ITEM AND OTHERWISE CORRECT THE FILE;
  (II)  REFRAIN FROM REPORTING THE ITEM IN SUBSEQUENT MENTAL RETARDATION
AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY REPORTS;

A. 7358                             6

  (III) ADVISE THE EMPLOYEE OF HIS OR HER RIGHT TO REQUEST  NOTIFICATION
AND,  AT THE EMPLOYEE'S REQUEST, PROMPTLY NOTIFY ANY EMPLOYER DESIGNATED
BY THE EMPLOYEE WHICH HAS RECEIVED INFORMATION  IN  THE  PREVIOUS  THREE
YEARS  THAT  AN  ERROR EXISTED, AND SHALL FURNISH SUCH EMPLOYER WITH THE
CORRECT INFORMATION; AND
  (IV)  AT  THE  EMPLOYEE'S  REQUEST,  FORWARD  HIM OR HER A COPY OF THE
CORRECTED  MENTAL  RETARDATION  AND  DEVELOPMENTAL  DISABILITIES  WORKER
REGISTRY FILE.
  (D) IF, AFTER CONDUCTING THE INVESTIGATION, THE MENTAL RETARDATION AND
DEVELOPMENTAL  DISABILITIES  WORKER  REGISTRY  IS  UNABLE TO RESOLVE THE
DISPUTED INFORMATION, IT SHALL:
  (I) PROMPTLY INDICATE IN THE FILE THAT THE ITEM IS DISPUTED;
  (II) PERMIT THE EMPLOYEE TO FILE  A  BRIEF  STATEMENT  CONCERNING  THE
DISPUTE;
  (III)  INCLUDE  THE  EMPLOYEE'S STATEMENT OF THE DISPUTE IN ALL SUBSE-
QUENT DISCLOSURES CONTAINING THE INFORMATION IN QUESTION;
  (IV) CLEARLY NOTE IN ALL  SUBSEQUENT  DISCLOSURES  THAT  THE  ITEM  IS
DISPUTED BY THE EMPLOYEE;
  (V)  ADVISE  THE  EMPLOYEE  OF HIS OR HER RIGHT TO PROMPTLY NOTIFY ANY
EMPLOYER DESIGNATED BY THE EMPLOYEE WHICH HAS  RECEIVED  INFORMATION  IN
THE  PREVIOUS  THREE  YEARS  THAT A STATEMENT CONCERNING THE DISPUTE HAS
BEEN FILED, AND SHALL FURNISH SUCH EMPLOYER WITH THE  EMPLOYEE'S  STATE-
MENT; AND
  (VI)  FORWARD  TO  THE  EMPLOYEE  A  COPY  OF HIS OR HER REGISTRY FILE
INCLUDING THE STATEMENT CONCERNING THE DISPUTED INFORMATION.
  (E) IF ANY ITEM DISPUTED AND REINVESTIGATED IS FOUND TO BE IN ERROR OR
CAN NO LONGER BE VERIFIED, UPON COMPLETION OF THE REINVESTIGATION OF ALL
ITEMS DISPUTED, THE MENTAL RETARDATION  AND  DEVELOPMENTAL  DISABILITIES
WORKER  REGISTRY  SHALL  TAKE THE ACTION SPECIFIED IN SUBPARAGRAPHS (I),
(II) AND (III) OF PARAGRAPH (C) OF THIS SUBDIVISION.
  10. INFORMATION REGARDING AN EMPLOYEE WHO IS EMPLOYED BY  AN  EMPLOYER
ON  THE  EFFECTIVE  DATE OF THIS SECTION NEED NOT BE FILED IN THE MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES WORKER REGISTRY  UNTIL  THREE
YEARS  AFTER  THE  EFFECTIVE DATE OF THE INITIAL REGULATION IMPLEMENTING
THIS SECTION. WITH REGARD TO SUCH AN  EMPLOYEE,  AN  EMPLOYER  SHALL  BE
REQUIRED  TO  FILE ONLY SUCH INFORMATION REQUIRED BY PARAGRAPHS (A), (B)
AND (C) OF SUBDIVISION TWO OF THIS SECTION  AS  IS  MAINTAINED  BY  SUCH
EMPLOYER AS A REGULAR PART OF THE EMPLOYEE'S PERSONNEL FILE.
  11.  THE  OFFICE SHALL DEVELOP AND PROMULGATE REGULATIONS IN CONSULTA-
TION WITH THE OFFICE OF CHILDREN AND FAMILY SERVICES NECESSARY  FOR  THE
IMPLEMENTATION OF THIS SECTION.
  12.  THE  COMMISSIONER  SHALL TRANSMIT TO THE SPEAKER OF THE ASSEMBLY,
THE MINORITY LEADER OF THE ASSEMBLY,  THE  TEMPORARY  PRESIDENT  OF  THE
SENATE AND THE MINORITY LEADER OF THE SENATE NO LATER THAN THE FIRST DAY
OF  APRIL  OF  EACH YEAR A REPORT ON THE IMPLEMENTATION AND OPERATION OF
THE MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES  WORKER  REGISTRY.
SUCH  REPORT  SHALL  INCLUDE,  BUT NOT BE LIMITED TO, AN ANALYSIS OF THE
REGISTRANTS ENTERED INTO THE SYSTEM DURING THE PRECEDING YEAR, AN ANALY-
SIS OF THE COSTS OF IMPLEMENTING AND OPERATING SUCH REGISTRY, THE SOURC-
ES OF THE FUNDS USED TO IMPLEMENT AND OPERATE THE REGISTRY, AND A COMPU-
TATION OF  ANY  EXCESS  FUNDS  COLLECTED  FOR  SUCH  IMPLEMENTATION  AND
OPERATION.
  S  2.  Subdivision 8-a of section 837 of the executive law, as amended
by chapter 561 of the laws of 2006, is amended to read as follows:
  8-a. Charge a fee when, pursuant to statute or the regulations of  the
division,  it  conducts  a  search  of  its criminal history records and

A. 7358                             7

returns a report thereon in connection with an application  for  employ-
ment  or for a license or permit. The division shall adopt and may, from
time to time, amend a schedule of such fees which shall  be  in  amounts
determined  by  the  division  to  be  reasonably related to the cost of
conducting such searches and returning reports thereon but, in no event,
shall  any  such  fee  exceed  twenty-five  dollars  and  an  additional
surcharge  of  fifty  dollars.  The  comptroller is hereby authorized to
deposit such fees into the general fund,  provided,  however,  that  the
monies received by the division of criminal justice services for payment
of  the  additional surcharge shall be deposited in equal amounts to the
general fund  and  to  the  fingerprint  identification  and  technology
account.  Notwithstanding  the foregoing, the division shall not request
or accept any fee for searching its records  and  supplying  a  criminal
history report pursuant to section two hundred fifty-one-b of the gener-
al  business  law relating to participating in flight instruction at any
aeronautical facility, flight school or institution of higher  learning,
NOR  FOR  SEARCHING  ITS RECORDS AND SUPPLYING A CRIMINAL HISTORY REPORT
PURSUANT TO ARTICLE FOURTEEN OF THE MENTAL HYGIENE LAW.
  S 3. This act shall take effect on the first of January next  succeed-
ing  the  date  on which it shall have become a law. The commissioner of
mental retardation and  developmental  disabilities  may  adopt,  amend,
suspend  or  repeal rules or regulations and take other actions prior to
and in preparation for the timely implementation  of  this  act  on  its
effective date; provided however, that such rules, regulations and other
actions shall not have any legal effect until the effective date of this
act.