§ 995-B — Powers and duties of the commission

§ 995-b. Powers and duties of the commission. 1. The commission shall\ndevelop minimum standards and a program of accreditation for all\nforensic laboratories in New York state, including establishing minimum\nqualifications for forensic laboratory directors and such other\npersonnel as the commission may determine to be necessary and\nappropriate, and approval of forensic laboratories for the performance\nof specific forensic methodologies. Nothing in this article shall be\ndeemed to preclude forensic laboratories from performing research and\nvalidation studies on new methodologies and technologies which may not\nyet be approved by the commission at that time.\n In designing a system of accreditation pursuant to this article, the\ncommission shall evaluate other systems of accreditation.\n 2. The minimum standards and program of accreditation shall be\ndesigned to accomplish the following objectives:\n (a) increase and maintain the effectiveness, efficiency, reliability,\nand accuracy of forensic laboratories, including forensic DNA\nlaboratories;\n (b) ensure that forensic analyses, including forensic DNA testing, are\nperformed in accordance with the highest scientific standards\npracticable;\n (c) promote increased cooperation and coordination among forensic\nlaboratories and other agencies in the criminal justice system;\n (d) ensure compatibility, to the extent consistent with the provisions\nof this article and any other applicable provision of law pertaining to\nprivacy or restricting disclosure or redisclosure of information, with\nother state and federal forensic laboratories to the extent necessary to\nshare and exchange information, data and results of forensic analyses\nand tests; and\n (e) set forth minimum requirements for the quality and maintenance of\nequipment.\n 2-a. Any program of forensic laboratory accreditation with respect to\na DNA laboratory pursuant to this section shall be under the direction\nof the DNA subcommittee established pursuant to subdivision thirteen of\nthis section. Such subcommittee shall have the sole authority to grant,\ndeny, review or modify a DNA forensic laboratory accreditation pursuant\nto this article, provided that such authority shall be effectuated\nthrough binding recommendations made by the DNA subcommittee to the\ncommission. In the event the commission disagrees with any of the\nbinding recommendations of the DNA subcommittee made pursuant to this\narticle, the commission may so notify such subcommittee and request such\nsubcommittee to reasonably review such binding recommendations. The DNA\nsubcommittee shall conduct such review and either forward revised\nbinding recommendations to the commission or indicate, with the reasons\ntherefor, that following such review such subcommittee has determined\nthat such binding recommendations shall not be revised.\n 3. The program of forensic laboratory accreditation shall include, at\na minimum, the following requirements:\n (a) an initial laboratory inspection, and routine inspections, as\nnecessary, to ensure compliance with accreditation requirements;\n (b) routine internal and external proficiency testing of all\nlaboratory personnel involved in forensic analysis, including blind\nexternal proficiency testing if the commission, or the DNA subcommittee\nas the case may be, determines such a blind proficiency testing program\nto be practicable and appropriate. In determining whether a blind\nproficiency testing program is practicable and appropriate, the\ncommission, or the DNA subcommittee as the case may be, shall consider\nsuch factors as accuracy and reliability of laboratory results,\ncost-effectiveness, time, allocation of resources, and availability;\n (c) quality control and quality assurance protocols, a method\nvalidation procedure and a corrective action and remedial program;\n (d) annual certification to the commission by the forensic\nlaboratories of their continued compliance with the requirements of the\naccreditation program which certification, in the case of a forensic DNA\nlaboratory, shall be forwarded to the DNA subcommittee;\n (e) the accreditation of a forensic laboratory may be revoked,\nsuspended or otherwise limited, upon a determination by the commission\nor, in the case of a forensic DNA laboratory, upon the binding\nrecommendation of the DNA subcommittee, that the laboratory or one or\nmore persons in its employ:\n (i) is guilty of misrepresentation in obtaining a forensic laboratory\naccreditation;\n (ii) rendered a report on laboratory work actually performed in\nanother forensic laboratory without disclosing the fact that the\nexamination or procedure was performed by such other forensic\nlaboratory;\n (iii) showed a pattern of excessive errors in the performance of\nforensic laboratory examination procedures;\n (iv) failed to file any report required to be submitted pursuant to\nthis article or the rules and regulations promulgated pursuant thereto;\nor\n (v) violated in a material respect any provision of this article or\nthe rules and regulations promulgated pursuant thereto; and\n (f) no forensic laboratory accreditation shall be revoked, suspended,\nor otherwise limited without a hearing. The commission shall serve\nwritten notice of the alleged violation, together with written notice of\nthe time and place of the hearing, which notice shall be mailed by\ncertified mail to the holder of the forensic laboratory accreditation at\nthe address of such holder at least twenty-one days prior to the date\nfixed for such hearing. An accredited laboratory may file a written\nanswer to the charges with the commission, not less than five days prior\nto the hearing.\n 4. A laboratory director who knowingly operates a laboratory without\nobtaining the accreditation required by this article, or who, with the\nintent to mislead or deceive, misrepresents a material fact to the\ncommission or DNA subcommittee, shall be subject to a civil penalty not\nto exceed seventy-five hundred dollars and such other penalties as are\nprescribed by the law.\n 5. The commission and the DNA subcommittee established pursuant to\nsubdivision thirteen of this section may require and receive from any\nagency of the state or any political subdivision thereof such assistance\nand data as may be necessary to enable the commission or DNA\nsubcommittee to administer the provisions of this article. The\ncommission or DNA subcommittee may enter into such cooperative\narrangements with the division of criminal justice services, the\ndepartment of health, and any other state agency, each of which is\nauthorized to enter into such cooperative arrangements as shall be\nnecessary or appropriate. Upon request of the commission or DNA\nsubcommittee, any state agency may transfer to the commission such\nofficers and employees as the commission or DNA subcommittee may deem\nnecessary from time to time to assist the commission or DNA subcommittee\nin carrying out its functions and duties. Officers and employees so\ntransferred shall not lose their civil service status or rights, and\nshall remain in the negotiating unit, if any, established prior to such\ntransfer.\n 6. All of the commission's records, reports, assessments, and\nevaluation with respect to accreditation, implementation of quality\nassurance standards (including proficiency testing) and monitoring\nthereof, shall be archived by the commission.\n 7. The commission and DNA subcommittee may establish, appoint, and set\nterms of members to as many advisory councils as it deems necessary to\nprovide specialized expertise to the commission with respect to new\nforensic technologies including DNA testing methodologies.\n 8. The commission or DNA subcommittee shall designate one or more\nentities for the performance of proficiency tests required pursuant to\nthe provisions of this article.\n 9. After reviewing recommendations from the division of criminal\njustice services, the commission, in consultation with the DNA\nsubcommittee, shall promulgate a policy for the establishment and\noperation of a DNA identification index consistent with the operational\nrequirements and capabilities of the division of criminal justice\nservices. Such policy shall address the following issues:\n (a) the forensic DNA methodology or methodologies to be utilized in\ncompiling the index;\n (b) procedures for assuring that the state DNA identification index\ncontains the following safeguards:\n (i) that any records maintained as part of such an index are accurate\nand complete;\n (ii) that effective software and hardware designs are instituted with\nsecurity features to prevent unauthorized access to such records;\n (iii) that periodic audits will be conducted to ensure that no illegal\ndisclosures of such records have taken place;\n (iv) that access to record information system facilities, systems\noperating environments, data file contents whether while in use or when\nstored in a media library is restricted to authorized personnel only;\n (v) that operation programs are used that will prohibit inquiry,\nrecord updates, or destruction of records from any source other than an\nauthorized source of inquiry, update, or destruction of records;\n (vi) that operational programs are used to detect and store for the\noutput of authorized employees only all unauthorized attempts to\npenetrate the state DNA identification index;\n (vii) that adequate and timely procedures exist to insure that any\nsubject of the state DNA identification index has the right of access to\nand review of records relating to such individual contained in such\nindex for the purpose of ascertaining their accuracy and completeness,\nincluding procedures for review of information maintained about such\nindividuals and administrative review (including procedures for\nadministrative appeal) and the necessary documentation to demonstrate\nthat the information is inaccurate or incomplete;\n (viii) that access to the index will be granted to an agency\nauthorized by this article to have such access only pursuant to a\nwritten use and dissemination agreement, a copy of which is filed with\nthe commission, which agreement sets forth the specific procedures by\nwhich such agency shall implement the provisions of subparagraphs (i)\nthrough (vii) of this paragraph, as applicable, and which agreement\nspecifically prohibits the redisclosure by such agency of any\ninformation obtained from the DNA identification index; and\n (ix) such policy shall provide for the mutual exchange, use and\nstorage of DNA records with the system of DNA identification utilized by\nthe federal bureau of investigation provided that the commission\ndetermines that such exchange, use and storage are consistent with the\nprovisions of this article and applicable provisions of law.\n 10. Review, and if necessary, recommend modifications to, a plan for\nimplementation of the DNA identification index submitted by the\ncommissioner of criminal justice services pursuant to section nine\nhundred ninety-five-c of this article.\n 11. Upon the recommendation of the DNA subcommittee established\npursuant to subdivision thirteen of this section, the commission shall\ndesignate one or more approved methodologies for the performance of\nforensic DNA testing, and shall review and act upon applications by\nforensic DNA laboratories for approval to perform forensic DNA testing.\n 12. Promulgate standards for a determination of a match between the\nDNA records contained in the state DNA identification index and a DNA\nrecord of a person submitted for comparison therewith.\n 13. (a) The commission shall establish a subcommittee on forensic DNA\nlaboratories and forensic DNA testing. The chair of the subcommittee\nshall be appointed by the chair of the commission. The chair of the\nsubcommittee shall appoint six other members to the subcommittee, one of\nwhom shall represent the discipline of molecular biology and be\nappointed upon the recommendation of the commissioner of the department\nof health, one of whom shall represent the discipline of population\ngenetics and be appointed upon the recommendation of the commissioner of\nthe department of health, one of whom shall be representative of the\ndiscipline of laboratory standards and quality assurance regulation and\nmonitoring and be appointed upon the recommendation of the commissioner\nof the department of health, one of whom shall be a forensic scientist\nand be appointed upon the recommendation of the commissioner of the\ndepartment of health, one of whom shall be representative of the\ndiscipline of population genetics and be appointed upon the\nrecommendation of the commissioner of criminal justice services and one\nof whom shall be representative of the discipline of forensic science\nand be appointed upon the recommendation of the commissioner of criminal\njustice services. Members of the DNA subcommittee shall serve for three\nyear terms and be subject to the conditions of service specified in\nsection nine hundred ninety-five-a of this article.\n (b) The DNA subcommittee shall assess and evaluate all DNA\nmethodologies proposed to be used for forensic analysis, and make\nreports and recommendations to the commission as it deems necessary. The\nDNA subcommittee shall make binding recommendations for adoption by the\ncommission addressing minimum scientific standards to be utilized in\nconducting forensic DNA analysis including, but not limited to,\nexamination of specimens, population studies and methods employed to\ndetermine probabilities and interpret test results. The DNA subcommittee\nmay require a demonstration by an independent laboratory of any proposed\nforensic DNA testing methodology proposed to be used by a forensic\nlaboratory.\n (c) The DNA subcommittee shall make binding recommendations for\nadoption by the commission with regard to an accreditation program for\nlaboratories performing forensic DNA testing in accordance with the\nprovisions of the state administrative procedure act. Such\nrecommendations shall include the adoption and implementation of\ninternal and external proficiency testing programs, including, if\npossible, a blind external proficiency testing program for forensic\nlaboratories performing forensic DNA testing. The DNA subcommittee shall\nalso provide the commission with a list of accepted proficiency testers.\n (d) The DNA subcommittee shall be authorized to advise the commission\non any other matters regarding the implementation of scientific controls\nand quality assurance procedures for the performance of forensic DNA\ntesting, or on any other matters referred to it by the commission.\n