N.Y. Executive Law § 995-b: Powers and duties of the commission

§ 995-b. Powers and duties of the commission. 1. The commission shall

develop minimum standards and a program of accreditation for all

forensic laboratories in New York state, including establishing minimum

qualifications for forensic laboratory directors and such other

personnel as the commission may determine to be necessary and

appropriate, and approval of forensic laboratories for the performance

of specific forensic methodologies. Nothing in this article shall be

deemed to preclude forensic laboratories from performing research and

validation studies on new methodologies and technologies which may not

yet be approved by the commission at that time.

In designing a system of accreditation pursuant to this article, the

commission shall evaluate other systems of accreditation.

2. The minimum standards and program of accreditation shall be

designed to accomplish the following objectives:

(a) increase and maintain the effectiveness, efficiency, reliability,

and accuracy of forensic laboratories, including forensic DNA

laboratories;

(b) ensure that forensic analyses, including forensic DNA testing, are

performed in accordance with the highest scientific standards

practicable;

(c) promote increased cooperation and coordination among forensic

laboratories and other agencies in the criminal justice system;

(d) ensure compatibility, to the extent consistent with the provisions

of this article and any other applicable provision of law pertaining to

privacy or restricting disclosure or redisclosure of information, with

other state and federal forensic laboratories to the extent necessary to

share and exchange information, data and results of forensic analyses

and tests; and

(e) set forth minimum requirements for the quality and maintenance of

equipment.

2-a. Any program of forensic laboratory accreditation with respect to

a DNA laboratory pursuant to this section shall be under the direction

of the DNA subcommittee established pursuant to subdivision thirteen of

this section. Such subcommittee shall have the sole authority to grant,

deny, review or modify a DNA forensic laboratory accreditation pursuant

to this article, provided that such authority shall be effectuated

through binding recommendations made by the DNA subcommittee to the

commission. In the event the commission disagrees with any of the

binding recommendations of the DNA subcommittee made pursuant to this

article, the commission may so notify such subcommittee and request such

subcommittee to reasonably review such binding recommendations. The DNA

subcommittee shall conduct such review and either forward revised

binding recommendations to the commission or indicate, with the reasons

therefor, that following such review such subcommittee has determined

that such binding recommendations shall not be revised.

3. The program of forensic laboratory accreditation shall include, at

a minimum, the following requirements:

(a) an initial laboratory inspection, and routine inspections, as

necessary, to ensure compliance with accreditation requirements;

(b) routine internal and external proficiency testing of all

laboratory personnel involved in forensic analysis, including blind

external proficiency testing if the commission, or the DNA subcommittee

as the case may be, determines such a blind proficiency testing program

to be practicable and appropriate. In determining whether a blind

proficiency testing program is practicable and appropriate, the

commission, or the DNA subcommittee as the case may be, shall consider

such factors as accuracy and reliability of laboratory results,

cost-effectiveness, time, allocation of resources, and availability;

(c) quality control and quality assurance protocols, a method

validation procedure and a corrective action and remedial program;

(d) annual certification to the commission by the forensic

laboratories of their continued compliance with the requirements of the

accreditation program which certification, in the case of a forensic DNA

laboratory, shall be forwarded to the DNA subcommittee;

(e) the accreditation of a forensic laboratory may be revoked,

suspended or otherwise limited, upon a determination by the commission

or, in the case of a forensic DNA laboratory, upon the binding

recommendation of the DNA subcommittee, that the laboratory or one or

more persons in its employ:

(i) is guilty of misrepresentation in obtaining a forensic laboratory

accreditation;

(ii) rendered a report on laboratory work actually performed in

another forensic laboratory without disclosing the fact that the

examination or procedure was performed by such other forensic

laboratory;

(iii) showed a pattern of excessive errors in the performance of

forensic laboratory examination procedures;

(iv) failed to file any report required to be submitted pursuant to

this article or the rules and regulations promulgated pursuant thereto;

or

(v) violated in a material respect any provision of this article or

the rules and regulations promulgated pursuant thereto; and

(f) no forensic laboratory accreditation shall be revoked, suspended,

or otherwise limited without a hearing. The commission shall serve

written notice of the alleged violation, together with written notice of

the time and place of the hearing, which notice shall be mailed by

certified mail to the holder of the forensic laboratory accreditation at

the address of such holder at least twenty-one days prior to the date

fixed for such hearing. An accredited laboratory may file a written

answer to the charges with the commission, not less than five days prior

to the hearing.

4. A laboratory director who knowingly operates a laboratory without

obtaining the accreditation required by this article, or who, with the

intent to mislead or deceive, misrepresents a material fact to the

commission or DNA subcommittee, shall be subject to a civil penalty not

to exceed seventy-five hundred dollars and such other penalties as are

prescribed by the law.

5. The commission and the DNA subcommittee established pursuant to

subdivision thirteen of this section may require and receive from any

agency of the state or any political subdivision thereof such assistance

and data as may be necessary to enable the commission or DNA

subcommittee to administer the provisions of this article. The

commission or DNA subcommittee may enter into such cooperative

arrangements with the division of criminal justice services, the

department of health, and any other state agency, each of which is

authorized to enter into such cooperative arrangements as shall be

necessary or appropriate. Upon request of the commission or DNA

subcommittee, any state agency may transfer to the commission such

officers and employees as the commission or DNA subcommittee may deem

necessary from time to time to assist the commission or DNA subcommittee

in carrying out its functions and duties. Officers and employees so

transferred shall not lose their civil service status or rights, and

shall remain in the negotiating unit, if any, established prior to such

transfer.

6. All of the commission's records, reports, assessments, and

evaluation with respect to accreditation, implementation of quality

assurance standards (including proficiency testing) and monitoring

thereof, shall be archived by the commission.

7. The commission and DNA subcommittee may establish, appoint, and set

terms of members to as many advisory councils as it deems necessary to

provide specialized expertise to the commission with respect to new

forensic technologies including DNA testing methodologies.

8. The commission or DNA subcommittee shall designate one or more

entities for the performance of proficiency tests required pursuant to

the provisions of this article.

9. After reviewing recommendations from the division of criminal

justice services, the commission, in consultation with the DNA

subcommittee, shall promulgate a policy for the establishment and

operation of a DNA identification index consistent with the operational

requirements and capabilities of the division of criminal justice

services. Such policy shall address the following issues:

(a) the forensic DNA methodology or methodologies to be utilized in

compiling the index;

(b) procedures for assuring that the state DNA identification index

contains the following safeguards:

(i) that any records maintained as part of such an index are accurate

and complete;

(ii) that effective software and hardware designs are instituted with

security features to prevent unauthorized access to such records;

(iii) that periodic audits will be conducted to ensure that no illegal

disclosures of such records have taken place;

(iv) that access to record information system facilities, systems

operating environments, data file contents whether while in use or when

stored in a media library is restricted to authorized personnel only;

(v) that operation programs are used that will prohibit inquiry,

record updates, or destruction of records from any source other than an

authorized source of inquiry, update, or destruction of records;

(vi) that operational programs are used to detect and store for the

output of authorized employees only all unauthorized attempts to

penetrate the state DNA identification index;

(vii) that adequate and timely procedures exist to insure that any

subject of the state DNA identification index has the right of access to

and review of records relating to such individual contained in such

index for the purpose of ascertaining their accuracy and completeness,

including procedures for review of information maintained about such

individuals and administrative review (including procedures for

administrative appeal) and the necessary documentation to demonstrate

that the information is inaccurate or incomplete;

(viii) that access to the index will be granted to an agency

authorized by this article to have such access only pursuant to a

written use and dissemination agreement, a copy of which is filed with

the commission, which agreement sets forth the specific procedures by

which such agency shall implement the provisions of subparagraphs (i)

through (vii) of this paragraph, as applicable, and which agreement

specifically prohibits the redisclosure by such agency of any

information obtained from the DNA identification index; and

(ix) such policy shall provide for the mutual exchange, use and

storage of DNA records with the system of DNA identification utilized by

the federal bureau of investigation provided that the commission

determines that such exchange, use and storage are consistent with the

provisions of this article and applicable provisions of law.

10. Review, and if necessary, recommend modifications to, a plan for

implementation of the DNA identification index submitted by the

commissioner of criminal justice services pursuant to section nine

hundred ninety-five-c of this article.

11. Upon the recommendation of the DNA subcommittee established

pursuant to subdivision thirteen of this section, the commission shall

designate one or more approved methodologies for the performance of

forensic DNA testing, and shall review and act upon applications by

forensic DNA laboratories for approval to perform forensic DNA testing.

12. Promulgate standards for a determination of a match between the

DNA records contained in the state DNA identification index and a DNA

record of a person submitted for comparison therewith.

13. (a) The commission shall establish a subcommittee on forensic DNA

laboratories and forensic DNA testing. The chair of the subcommittee

shall be appointed by the chair of the commission. The chair of the

subcommittee shall appoint six other members to the subcommittee, one of

whom shall represent the discipline of molecular biology and be

appointed upon the recommendation of the commissioner of the department

of health, one of whom shall represent the discipline of population

genetics and be appointed upon the recommendation of the commissioner of

the department of health, one of whom shall be representative of the

discipline of laboratory standards and quality assurance regulation and

monitoring and be appointed upon the recommendation of the commissioner

of the department of health, one of whom shall be a forensic scientist

and be appointed upon the recommendation of the commissioner of the

department of health, one of whom shall be representative of the

discipline of population genetics and be appointed upon the

recommendation of the commissioner of criminal justice services and one

of whom shall be representative of the discipline of forensic science

and be appointed upon the recommendation of the commissioner of criminal

justice services. Members of the DNA subcommittee shall serve for three

year terms and be subject to the conditions of service specified in

section nine hundred ninety-five-a of this article.

(b) The DNA subcommittee shall assess and evaluate all DNA

methodologies proposed to be used for forensic analysis, and make

reports and recommendations to the commission as it deems necessary. The

DNA subcommittee shall make binding recommendations for adoption by the

commission addressing minimum scientific standards to be utilized in

conducting forensic DNA analysis including, but not limited to,

examination of specimens, population studies and methods employed to

determine probabilities and interpret test results. The DNA subcommittee

may require a demonstration by an independent laboratory of any proposed

forensic DNA testing methodology proposed to be used by a forensic

laboratory.

(c) The DNA subcommittee shall make binding recommendations for

adoption by the commission with regard to an accreditation program for

laboratories performing forensic DNA testing in accordance with the

provisions of the state administrative procedure act. Such

recommendations shall include the adoption and implementation of

internal and external proficiency testing programs, including, if

possible, a blind external proficiency testing program for forensic

laboratories performing forensic DNA testing. The DNA subcommittee shall

also provide the commission with a list of accepted proficiency testers.

(d) The DNA subcommittee shall be authorized to advise the commission

on any other matters regarding the implementation of scientific controls

and quality assurance procedures for the performance of forensic DNA

testing, or on any other matters referred to it by the commission.