S T A T E O F N E W Y O R K
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6040
2019-2020 Regular Sessions
I N A S S E M B L Y
February 26, 2019
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Introduced by M. of A. LAWRENCE -- read once and referred to the Commit-
tee on Health
AN ACT to amend the social services law and the public health law, in
relation to criminal history records of maintenance employees in adult
residential health and assisted living facilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The social services law is amended by adding a new section
461-u to read as follows:
§ 461-U. ACCESS TO CRIMINAL HISTORY RECORDS. 1. FOR THE PURPOSES OF
THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A) "MAINTENANCE EMPLOYEE" SHALL MEAN ANY INDIVIDUAL TO BE EMPLOYED OR
USED BY A PROVIDER, INCLUDING THOSE PERSONS EMPLOYED THROUGH A TEMPORARY
EMPLOYMENT OR STAFFING AGENCY, AND WHO PROVIDE SUPPORTIVE MAINTENANCE
SERVICES TO SUCH FACILITY, INCLUDED, BUT NOT LIMITED TO BEAUTICIAN,
SECURITY, JANITORIAL, LAUNDRY, RECREATIONAL AND GROUNDSKEEPING SERVICES.
SUCH TERM SHALL NOT INCLUDE VOLUNTEERS.
(B) "PROVIDER" SHALL MEAN AN ASSISTED LIVING FACILITY, RESIDENTIAL
HEALTH CARE FACILITY, SKILLED NURSING FACILITY OR ANY OTHER TYPE OF
FACILITY THAT PROVIDES RESIDENTIAL OR INSTITUTIONAL CARE TO THE ELDERLY
OR DISABLED.
2. SUBJECT TO THE RULES AND REGULATIONS OF THE DIVISION OF CRIMINAL
JUSTICE SERVICES, THE DEPARTMENT OF HEALTH SHALL HAVE ACCESS TO CRIMINAL
HISTORY RECORDS MAINTAINED BY SUCH DIVISION PERTAINING TO ANY MAINTE-
NANCE EMPLOYEE OR SUCH PERSONS AS THE DEPARTMENT OF HEALTH AT ANY TIME
DEEMS NECESSARY TO DETERMINE THEIR CRIMINAL HISTORIES.
3. EVERY COURT IN WHICH A MAINTENANCE EMPLOYEE OF A PROVIDER IS
CONVICTED OF A CRIME WHILE PERFORMING THEIR INTENDED DUTIES AT SUCH
FACILITY SHALL, WITHIN SEVEN DAYS AFTER EITHER THE ENTRY OF A PLEA OF
GUILTY, OR THE VERDICT OF THE COURT OR A JURY, NOTIFY THE DEPARTMENT OF
HEALTH IN WRITING OF SUCH CONVICTION. THE DEPARTMENT OF HEALTH, AFTER
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09598-01-9
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RECEIPT OF SUCH NOTIFICATION OR AT ANY TIME THE DEPARTMENT OF HEALTH
BECOMES AWARE OF THE CONVICTION OF SUCH MAINTENANCE WORKER, SHALL HAVE
THE AUTHORITY, GRANTED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, TO
HAVE ACCESS TO THE CRIMINAL HISTORY RECORDS OF SUCH INDIVIDUAL.
4. ANY REQUEST FOR CRIMINAL HISTORY RECORDS MADE PURSUANT TO THE
PROVISIONS OF THIS SECTION SHALL BE ACCOMPANIED BY THE FINGERPRINTS OF
THE PERSON WHO IS THE SUBJECT OF SUCH REQUEST.
§ 2. Subdivisions 3 and 5 of section 2899 of the public health law, as
amended by chapter 331 of the laws of 2006, are amended to read as
follows:
3. "Employee" shall mean any person to be employed or used by a
provider, including those persons employed by a temporary employment
agency, to provide direct care or supervision to patients or residents
OR AN INDIVIDUAL WHO SERVES AS A MAINTENANCE EMPLOYEE AS DEFINED IN
SECTION FOUR HUNDRED SIXTY-ONE-U OF THE SOCIAL SERVICES LAW. Persons
licensed pursuant to title eight of the education law or article twen-
ty-eight-D of this chapter are excluded from the meaning of employee
under this article. Such term shall not include volunteers.
5. "Prospective employee" shall mean any individual, INCLUDING A
POTENTIAL MAINTENANCE EMPLOYEE, not currently an employee, who files an
application for employment as an employee with a provider and the
provider has a reasonable expectation to hire such individual as an
employee.
§ 3. Subdivision 10 of section 2899-a of the public health law, as
amended by section 5 of part C of chapter 57 of the laws of 2018, is
amended to read as follows:
10. Notwithstanding subdivision eleven of section eight hundred
forty-five-b of the executive law, a certified home health agency,
licensed home care services agency or long term home health care program
certified, licensed or approved under article thirty-six of this chapter
or a home care services agency exempt from certification or licensure
under article thirty-six of this chapter, a hospice program under arti-
cle forty of this chapter, or an adult home, enriched housing program or
residence for adults licensed under article seven of the social services
law, OR AN ASSISTED LIVING FACILITY LICENSED UNDER ARTICLE FORTY-SIX-B
OF THIS CHAPTER, or a health home, or any subcontractor of such health
home, who contracts with or is approved or otherwise authorized by the
department to provide health home services to all enrollees enrolled
pursuant to a diagnosis of a developmental disability as defined in
subdivision twenty-two of section 1.03 of the mental hygiene law and
enrollees who are under twenty-one years of age under section three
hundred sixty-five-l of the social services law, or any entity that
provides home and community based services to enrollees who are under
twenty-one years of age under a demonstration program pursuant to
section eleven hundred fifteen of the federal social security act may
temporarily approve a prospective employee while the results of the
criminal history information check and the determination are pending,
upon the condition that the provider conducts appropriate direct obser-
vation and evaluation of the temporary employee, while he or she is
temporarily employed, and the care recipient; provided, however, that
for a health home, or any subcontractor of a health home, who contracts
with or is approved or otherwise authorized by the department to provide
health home services to all enrollees enrolled pursuant to a diagnosis
of developmental disability as defined in subdivision twenty-two of
section 1.03 of the mental hygiene law and enrollees who are under twen-
ty-one years of age under section three hundred sixty-five-l of the
A. 6040 3
social services law, or any entity that provides home and community
based services to enrollees who are under twenty-one years of age under
a demonstration program pursuant to section eleven hundred fifteen of
the federal social security act, direct observation and evaluation of
temporary employees shall not be required until April first, two thou-
sand nineteen. The results of such observations shall be documented in
the temporary employee's personnel file and shall be maintained. For
purposes of providing such appropriate direct observation and evalu-
ation, the provider shall utilize an individual employed by such provid-
er with a minimum of one year's experience working in an agency certi-
fied, licensed or approved under article thirty-six of this chapter or
an adult home, enriched housing program or residence for adults licensed
under article seven of the social services law, a health home, or any
subcontractor of such health home, who contracts with or is approved or
otherwise authorized by the department to provide health home services
to those enrolled pursuant to a diagnosis of a developmental disability
as defined in subdivision twenty-two of section 1.03 of the mental
hygiene law and enrollees who are under twenty-one years of age under
section three hundred sixty-five-l of the social services law, or any
entity that provides home and community based services to enrollees who
are under twenty-one years of age under a demonstration program pursuant
to section eleven hundred fifteen of the federal social security act. If
the temporary employee is working under contract with another provider
certified, licensed or approved under article thirty-six OR ARTICLE
FORTY-SIX-B of this chapter, such contract provider's appropriate direct
observation and evaluation of the temporary employee, shall be consid-
ered sufficient for the purposes of complying with this subdivision.
§ 4. This act shall take effect immediately.