Senate Bill S384

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

                                   384

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  Sen. MORAHAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

AN ACT to amend the mental hygiene law, in relation  to  establishing  a
  mental  retardation  and  developmental disabilities and mental health
  worker registry

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

  Section  1.  The mental hygiene law is amended by adding a new section
16.34 to read as follows:
S 16.34 MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES REGISTRY.
  1. EVERY PROVIDER OF SERVICES REQUIRED  TO  REQUEST  CRIMINAL  HISTORY
INFORMATION  CONCERNING  CERTAIN  PROSPECTIVE  EMPLOYEES  AND VOLUNTEERS
PURSUANT TO THE PROVISIONS OF SECTION 16.33 OF THIS ARTICLE  SHALL  ALSO
BE  REQUIRED TO SUBMIT TO THE OFFICE A SUMMARY REPORT IN A FORM APPROVED
BY THE OFFICE OF THE TERMINATION FOR CAUSE OF ANY EMPLOYEE OR  VOLUNTEER
WHO  WAS  SUBJECT  TO  A CRIMINAL HISTORY BACKGROUND CHECK UNDER SECTION
16.33 OF THIS ARTICLE AND WHO IS TERMINATED AS A  RESULT  OF  A  FINDING
THAT  SUCH  EMPLOYEE  OR  VOLUNTEER ENGAGED IN BEHAVIOR THAT CONSTITUTED
ABUSE OR NEGLECT OF A CLIENT.
  2. IF SUCH  EMPLOYEE  OR  VOLUNTEER  VOLUNTARILY  RESIGNS  DURING  THE
PENDENCY  OF  AN INVESTIGATION OF AN INCIDENT INVOLVING NEGLECT OR ABUSE
OF A CLIENT AND IF SUCH INVESTIGATION DETERMINES THAT SUCH  EMPLOYEE  OR
VOLUNTEER  ENGAGED  IN  BEHAVIOR  THAT CONSTITUTED ABUSE OR NEGLECT OF A
CLIENT WHICH WOULD HAVE RESULTED IN  TERMINATION,  SUCH  PROVIDER  SHALL
FILE THE SUMMARY REPORT REQUIRED IN SUBDIVISION ONE OF THIS SECTION.
  3.  THE  SUMMARY  REPORT REQUIRED TO BE FILED UNDER SUBDIVISION ONE OF
THIS SECTION SHALL BE SUBMITTED TO THE OFFICE WITHIN THIRTY DAYS OF  THE
TERMINATION  OR, IF THE EMPLOYEE OR VOLUNTEER RESIGNS, THIRTY DAYS AFTER
THE COMPLETION OF THE INVESTIGATION. THE SUMMARY  REPORT  SHALL  INCLUDE

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

                                                           LBD02527-02-9

S. 384                              2

THE NAME, HOME ADDRESS, SOCIAL SECURITY NUMBER OF THE EMPLOYEE OR VOLUN-
TEER  AND A BRIEF DESCRIPTION OF THE CONDUCT INVOLVED IN THE INCIDENT IN
A FORM APPROVED BY THE OFFICE.
  4.  WHEN THE OFFICE RECEIVES A SUMMARY REPORT REGARDING AN EMPLOYEE OR
VOLUNTEER, THE OFFICE SHALL MAINTAIN SUCH REPORT TOGETHER WITH THE CRIM-
INAL HISTORY INFORMATION PREVIOUSLY OBTAINED REGARDING SUCH EMPLOYEE  OR
VOLUNTEER.
  5.  IF  THE OFFICE RECEIVES A REQUEST FOR CRIMINAL HISTORY INFORMATION
FOR A PROSPECTIVE EMPLOYEE OR VOLUNTEER FOR WHOM THE OFFICE  HAS  PREVI-
OUSLY  RECEIVED A SUMMARY REPORT, THE OFFICE SHALL FURNISH A COPY OF ANY
SUMMARY REPORTS AND ANY WRITTEN RESPONSE FROM THE EMPLOYEE OR  VOLUNTEER
REFERRED  TO  IN  SUBDIVISION EIGHT OF THIS SECTION TO: (A) THE PROVIDER
THAT REQUESTED THE CRIMINAL HISTORY INFORMATION  WITH  RESPECT  TO  SUCH
PROSPECTIVE EMPLOYEE OR VOLUNTEER AND (B) ANY OTHER PROVIDER THAT PREVI-
OUSLY REQUESTED CRIMINAL HISTORY INFORMATION PERTAINING TO SUCH EMPLOYEE
OR  VOLUNTEER  EXCEPT IF SUCH PROVIDER HAS NOTIFIED THE OFFICE THAT SUCH
EMPLOYEE OR VOLUNTEER IS NO LONGER SUBJECT TO A CHECK  PURSUANT  TO  THE
PROVISIONS OF SUBDIVISION EIGHT OF SECTION EIGHT HUNDRED FORTY-FIVE-B OF
THE EXECUTIVE LAW.
  6.  THE  OFFICE  SHALL  PROVIDE  THE  SUMMARY REPORT TO THE AUTHORIZED
PERSON AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE OF  SECTION  EIGHT
HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW.
  7.  THE  SUMMARY  REPORT PROVIDED BY THE OFFICE TO A PROVIDER SHALL BE
SUBJECT TO  THE  CONFIDENTIALITY  PROVISIONS  OF  SUBDIVISION  SEVEN  OF
SECTION EIGHT HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW.
  8.  THE OFFICE SHALL PROVIDE EACH EMPLOYEE OR VOLUNTEER ABOUT WHOM THE
OFFICE RECEIVES A SUMMARY REPORT  HEREUNDER  WITH  WRITTEN  NOTIFICATION
THAT  SUCH  EMPLOYEE OR VOLUNTEER HAS THE RIGHT TO OBTAIN AND REVIEW THE
SUMMARY REPORT AND SUBMIT A BRIEF WRITTEN STATEMENT IN RESPONSE  TO  THE
SUMMARY REPORT PURSUANT TO REGULATIONS AND PROCEDURES ESTABLISHED BY THE
OFFICE.  IF THE OFFICE RECEIVES SUCH WRITTEN STATEMENT, THE OFFICE SHALL
TRANSMIT SUCH WRITTEN STATEMENT TO ANY PROVIDER TOGETHER WITH THE SUMMA-
RY REPORT PROVIDED PURSUANT TO THIS SECTION.
  9. THE PROVISIONS OF SUBDIVISION NINE OF SECTION EIGHT HUNDRED  FORTY-
FIVE-B  OF THE EXECUTIVE LAW REGARDING LIMITATIONS OF CIVIL AND CRIMINAL
LIABILITY AND LIMITATIONS UPON ACTIONS  FOR  DAMAGES  SHALL  APPLY  WITH
RESPECT  TO  THE SUMMARY REPORTS DISCLOSED BY THE OFFICE TO PROVIDERS TO
THE SAME EXTENT AND IN THE SAME MANNER THAT  SUCH  PROVISIONS  APPLY  TO
CRIMINAL  HISTORY  INFORMATION  PROVIDED  UNDER  SECTION  EIGHT  HUNDRED
FORTY-FIVE-B OF THE EXECUTIVE LAW.
  S 2. The mental hygiene law is amended by adding a new  section  31.36
to read as follows:
S 31.36 MENTAL HEALTH REGISTRY.
  1.  EVERY  PROVIDER  OF  SERVICES REQUIRED TO REQUEST CRIMINAL HISTORY
INFORMATION CONCERNING  CERTAIN  PROSPECTIVE  EMPLOYEES  AND  VOLUNTEERS
PURSUANT  TO  THE PROVISIONS OF SECTION 31.35 OF THIS ARTICLE SHALL ALSO
BE REQUIRED TO SUBMIT  TO  THE  OFFICE  OF  MENTAL  HEALTH,  HEREINAFTER
REFERRED  TO  AS  THE OFFICE, A SUMMARY REPORT IN A FORM APPROVED BY THE
OFFICE OF THE TERMINATION FOR CAUSE OF ANY EMPLOYEE OR VOLUNTEER WHO WAS
SUBJECT TO A CRIMINAL HISTORY BACKGROUND CHECK UNDER  SECTION  31.35  OF
THIS  ARTICLE  AND  WHO IS TERMINATED AS A RESULT OF A FINDING THAT SUCH
EMPLOYEE OR VOLUNTEER ENGAGED IN  BEHAVIOR  THAT  CONSTITUTED  ABUSE  OR
NEGLECT OF A CLIENT.
  2.  IF  SUCH  EMPLOYEE  OR  VOLUNTEER  VOLUNTARILY  RESIGNS DURING THE
PENDENCY OF AN INVESTIGATION OF AN INCIDENT INVOLVING NEGLECT  OR  ABUSE
OF  A  CLIENT AND IF SUCH INVESTIGATION DETERMINES THAT SUCH EMPLOYEE OR

S. 384                              3

VOLUNTEER ENGAGED IN BEHAVIOR THAT CONSTITUTED ABUSE  OR  NEGLECT  OF  A
CLIENT  WHICH  WOULD  HAVE  RESULTED IN TERMINATION, SUCH PROVIDER SHALL
FILE THE SUMMARY REPORT REQUIRED IN SUBDIVISION ONE OF THIS SECTION.
  3.  THE  SUMMARY  REPORT REQUIRED TO BE FILED UNDER SUBDIVISION ONE OF
THIS SECTION SHALL BE SUBMITTED TO THE OFFICE WITHIN THIRTY DAYS OF  THE
TERMINATION  OR, IF THE EMPLOYEE OR VOLUNTEER RESIGNS, THIRTY DAYS AFTER
THE COMPLETION OF THE INVESTIGATION. THE SUMMARY  REPORT  SHALL  INCLUDE
THE NAME, HOME ADDRESS, SOCIAL SECURITY NUMBER OF THE EMPLOYEE OR VOLUN-
TEER  AND A BRIEF DESCRIPTION OF THE CONDUCT INVOLVED IN THE INCIDENT IN
A FORM APPROVED BY THE OFFICE.
  4. WHEN THE OFFICE RECEIVES A SUMMARY REPORT REGARDING AN EMPLOYEE  OR
VOLUNTEER, THE OFFICE SHALL MAINTAIN SUCH REPORT TOGETHER WITH THE CRIM-
INAL  HISTORY INFORMATION PREVIOUSLY OBTAINED REGARDING SUCH EMPLOYEE OR
VOLUNTEER.
  5. IF THE OFFICE RECEIVES A REQUEST FOR CRIMINAL  HISTORY  INFORMATION
FOR  A  PROSPECTIVE EMPLOYEE OR VOLUNTEER FOR WHOM THE OFFICE HAS PREVI-
OUSLY RECEIVED A SUMMARY REPORT, THE OFFICE SHALL FURNISH A COPY OF  ANY
SUMMARY  REPORTS AND ANY WRITTEN RESPONSE FROM THE EMPLOYEE OR VOLUNTEER
REFERRED TO IN SUBDIVISION EIGHT OF THIS SECTION TO:  (A)  THE  PROVIDER
THAT  REQUESTED  THE  CRIMINAL  HISTORY INFORMATION WITH RESPECT TO SUCH
PROSPECTIVE EMPLOYEE OR VOLUNTEER AND (B) ANY OTHER PROVIDER THAT PREVI-
OUSLY REQUESTED CRIMINAL HISTORY INFORMATION PERTAINING TO SUCH EMPLOYEE
OR VOLUNTEER EXCEPT IF SUCH PROVIDER HAS NOTIFIED THE OFFICE  THAT  SUCH
EMPLOYEE  OR  VOLUNTEER  IS NO LONGER SUBJECT TO A CHECK PURSUANT TO THE
PROVISIONS OF SUBDIVISION EIGHT OF SECTION EIGHT HUNDRED FORTY-FIVE-B OF
THE EXECUTIVE LAW.
  6. THE OFFICE SHALL PROVIDE  THE  SUMMARY  REPORT  TO  THE  AUTHORIZED
PERSON  AS  DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION EIGHT
HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW.
  7. THE SUMMARY REPORT PROVIDED BY THE OFFICE TO A  PROVIDER  SHALL  BE
SUBJECT  TO  THE  CONFIDENTIALITY  PROVISIONS  OF  SUBDIVISION  SEVEN OF
SECTION EIGHT HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW.
  8. THE OFFICE SHALL PROVIDE EACH EMPLOYEE OR VOLUNTEER ABOUT WHOM  THE
OFFICE  RECEIVES  A  SUMMARY  REPORT HEREUNDER WITH WRITTEN NOTIFICATION
THAT SUCH EMPLOYEE OR VOLUNTEER HAS THE RIGHT TO OBTAIN AND  REVIEW  THE
SUMMARY  REPORT  AND SUBMIT A BRIEF WRITTEN STATEMENT IN RESPONSE TO THE
SUMMARY REPORT PURSUANT TO REGULATIONS AND PROCEDURES ESTABLISHED BY THE
OFFICE. IF THE OFFICE RECEIVES SUCH WRITTEN STATEMENT, THE OFFICE  SHALL
TRANSMIT SUCH WRITTEN STATEMENT TO ANY PROVIDER TOGETHER WITH THE SUMMA-
RY REPORT PROVIDED PURSUANT TO THIS SECTION.
  9.  THE PROVISIONS OF SUBDIVISION NINE OF SECTION EIGHT HUNDRED FORTY-
FIVE-B OF THE EXECUTIVE LAW REGARDING LIMITATIONS OF CIVIL AND  CRIMINAL
LIABILITY  AND  LIMITATIONS  UPON  ACTIONS  FOR DAMAGES SHALL APPLY WITH
RESPECT TO THE SUMMARY REPORTS DISCLOSED BY THE OFFICE TO  PROVIDERS  TO
THE  SAME  EXTENT  AND  IN THE SAME MANNER THAT SUCH PROVISIONS APPLY TO
CRIMINAL  HISTORY  INFORMATION  PROVIDED  UNDER  SECTION  EIGHT  HUNDRED
FORTY-FIVE-B OF THE EXECUTIVE 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;  provided,  however,
that  effective  immediately  the commissioner of mental retardation and
developmental disabilities and the commissioner  of  mental  health  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.