Senate Bill S5822

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5822
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 17, 2023
                                ___________
 
 Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
   printed to be committed to the Committee 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-v to read as follows:
   §  461-V.  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.
                                                            LBD04873-01-3
              

 S. 5822                             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-V 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 7 of part RRR of chapter 58 of the laws of  2020,  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, including enrollees who  are
 under  twenty-one years of age, under section three hundred sixty-five-l
 of the social services law, except for a health home, or any subcontrac-
 tor of such health home, who contracts with or is approved or  otherwise
 authorized  by  the  department  to  provide health home services to all
 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; 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 observation 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, including enrollees who are under twen-
 ty-one years of age, under section three  hundred  sixty-five-l  of  the
 S. 5822                             3
 
 social  services  law, except for a health home, or any subcontractor of
 such health home, who contracts with or is approved or otherwise author-
 ized by the department to provide health  home  services  to  all  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;  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  July  first,  two  thousand  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  evaluation,  the
 provider shall utilize an individual employed by such  provider  with  a
 minimum  of  one  year's  experience  working  in  an  agency certified,
 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,
 including enrollees who are under twenty-one years of age, under section
 three  hundred  sixty-five-l  of  the  social services law, except for 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 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; 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  chap-
 ter,  such contract provider's appropriate direct observation and evalu-
 ation of the temporary employee, shall be considered sufficient for  the
 purposes of complying with this subdivision.
   § 4. This act shall take effect immediately.