S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6040
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 26, 2019
                                ___________
 
 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

 A. 6040                             2
 
 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.