6190 - New York State Accreditation Program for Forensic Laboratories

Section 6190.1 Definitions.

(a) When used in this Part:

(1) The term forensic laboratory shall have the same meaning as set forth in Executive Law (EL) section 995(l).

(2) The term forensic DNA laboratory shall have the same meaning as set forth in EL § 995(2).

(3) The term forensic DNA testing shall have the same meaning as set forth in EL § 995(2).

(4) The term "DNA" means deoxyribonucleic acid.

(5) The term "DNA Subcommittee" refers to the subcommittee on forensic DNA laboratories and forensic DNA testing established pursuant to EL section 995-b(l3).

(6) The term "Commission" refers to the Commission on Forensic Science established pursuant to EL § 995-a.

(7) The term "Division" refers to the NYS Division of Criminal Justice Services.

(8) The term ASCLD/LAB refers to the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. Current ASCLD/LAB accreditation guidelines are contained in the 2008 edition of the ASCLD/LAB manual, which may be obtained from the ASCLD/LAB, 139 Technology Drive, Garner, NC 27529. Current ASCLD/LAB International accreditation guidelines are contained in the ISO/IEC 17025-2005 "General Requirements for the competence and testing of calibration laboratories," which can be obtained from ISO at www.iso.org or from the American National Standards Institute (ANSI) at www.ansi.org, and the 2006 ASCLD/LAB International Supplemental Requirements, which may be obtained from ASCLD/LAB, 139 Technology Drive, Garner, NC 27529. These guidelines may also be viewed at the Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, and the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.

(9) The phrase Quality Assurance Standards for Forensic DNA Testing Laboratories refers to standards recommended by the Federal DNA Advisory Board, and approved by the Director of the Federal Bureau of Investigation, which took effect July 1, 2009. These standards may be obtained from the Federal Bureau of Investigation, Laboratory Division, 2501 Investigation Parkway, Quantico, Va. 22135. These standards may also be viewed at the Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, and the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.

(10) The term "laboratory director" refers to the director of the forensic laboratory.

(11) The term ABFT refers to the American Board of Forensic Toxicology, Inc. The current ABFT laboratory accreditation program is found in the 2006 Forensic Toxicology Laboratory Accreditation Manual, which may be obtained from ABFT, 410 North 21st Street, Colorado Springs, CO 80904. This program may also be viewed at the Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, and the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231.

6190.2 Statement of purpose.

(a) EL section 995-b(13)(c) requires the DNA subcommittee to make binding recommendations for adoption by the commission with regard to a NYS accreditation program for a laboratory performing forensic DNA testing.

(b) Executive Law section 995-b(1) requires the commission to develop minimum standards and a program of accreditation for all forensic laboratories in New York State.

(c) It is the policy of the commission and DNA subcommittee that to ensure reliable forensic testing and analysis, a forensic laboratory should adhere to high standards in all aspects of its operation. Further, the laboratory director, as well as the individual specifically responsible for oversight of DNA testing and other personnel as determined by the commission (upon the binding recommendation of the DNA subcommittee) to be necessary and appropriate, should satisfy appropriate educational and training requirements.

6190.3 NYS accreditation standards.

(a) Except as provided below in subdivision (c) of this section, the commission has determined that all forensic laboratories must meet the following standards to receive NYS accreditation in disciplines other than forensic DNA testing: (1) the laboratory must be accredited by ASCLD/LAB; or (2) if the laboratory is performing only toxicology analysis, it must be accredited by either ASCLD/LAB or ABFT.

(b) Except as provided below in subdivision (c) of this section, the commission has further determined, upon the binding recommendation of the DNA subcommittee, that any forensic laboratory performing forensic DNA testing must be accredited by ASCLD/LAB to include forensic DNA testing, and must comply with all conditions of the Quality Assurance Standards for Forensic DNA testing Laboratories.

(c) A forensic laboratory that has not satisfied the requirements of subdivisions (a) or (b) of this section may apply to the commission for provisional NYS accreditation. Such provisional accreditation shall be granted for an interim period (1) to any forensic laboratory that has submitted an application which has been accepted by ASCLD/LAB and is awaiting ASCLD/LAB accreditation; or (2) to any forensic laboratory performing only toxicology analysis that has submitted an application which has been accepted by ASCLD/LAB or ABFT and is awaiting such accreditation; or (3) to any forensic DNA laboratory that has submitted an application which has been accepted by ASCLD/LAB and is awaiting ASCLD/LAB accreditation and that complies with all conditions of the Quality Assurance Standards for Forensic DNA testing Laboratories.

(d) Notwithstanding the provisions of this Part, a forensic laboratory that has not satisfied the requirements of subdivision (a) or (b) of this section may request that it be permitted to perform forensic testing on evidence in a criminal investigation or proceeding or for purposes of identification to the extent necessary to satisfy ASCLD/LAB or ABFT accreditation requirements. A forensic laboratory requesting to perform such testing must demonstrate to the satisfaction of the commission (and in any instance involving DNA testing upon the binding recommendation of the DNA subcommittee) through the use of an external audit by an inspector approved by the commission (and in any instance involving DNA testing upon the binding recommendation of the DNA subcommittee) that all aspects of preparation for ASCLD/LAB or ABFT accreditation other than that requiring such testing have been completed.

6190.4 NYS accreditation procedures.

(a) A forensic laboratory seeking NYS accreditation must file a formal application with the Division in a form prescribed by the Division. An application seeking accreditation shall include the following supporting documentation, access thereto or authorization for ASCLD/LAB or ABFT, as appropriate, to release:

(1) documentation or accreditation by ASCLD/LAB or ABFT, if obtained;

(2) all documentation submitted to ASCLD/LAB or ABFT as part of such accreditation application process, the continuing compliance requirements, if any, and any other related matters; and

(3) all documentation received by the laboratory from ASCLD/LAB or ABFT, which may include, but not be limited to any of the following, if appropriate: information pertaining to the application process; the accreditation inspection; the summation conference; the final inspection report; and disciplinary actions or proceedings.

(b) Upon receipt of such materials, the division shall conduct an initial review to ensure that all necessary documents have been submitted. Thereafter, the division shall forward that application and supporting documents to the DNA subcommittee for its review and binding recommendation regarding NYS accreditation to perform DNA testing. The DNA subcommittee shall forward its binding recommendation to the commission, which shall make a final determination as to whether NYS accreditation in forensic DNA testing should be granted. For a forensic laboratory seeking accreditation in disciplines other than DNA testing, the division shall forward the application and supporting documentation directly to the commission for its determination.

(c) Upon the determination to grant NYS accreditation to a forensic laboratory, the division shall forward a certificate of NYS accreditation to such laboratory. The certificate and /or accompanying correspondence shall indicate the forensic disciplines in which the laboratory is accredited.

6190.5 Duration of NYS accreditation.

(a) A forensic laboratory that is accredited to perform DNA testing will retain its NYS accreditation for the same period as its ASCLD/LAB accreditation, unless such NYS accreditation is revoked pursuant to section 6190.6 of this Part. To retain NYS accredited status, such laboratory shall continue to meet the standards under which it was accredited and shall participate in any proficiency testing mandated by the DNA subcommittee. Such laboratory must submit to the division a copy of any documentation submitted to ASCLD/LAB or received from it as part of the continuing compliance requirements, including any notification of disciplinary action taken by ASCLD/LAB against such laboratory. Such documentation shall be reviewed by the DNA subcommittee, and appropriate action may be taken against such laboratory, if necessary.

(b) A forensic laboratory that receives NYS accreditation in disciplines other than forensic DNA testing will retain its accreditation for the same period as its ASCLD/LAB or ABFT accreditation unless a shorter period is specified in the certificate or its NYS accreditation is revoked pursuant to section 6190.6 of this Part. To retain NYS accredited status, the laboratory shall continue to meet the standards under which it was accredited and shall participate in any proficiency testing mandated by the commission. In addition, a forensic laboratory that is accredited by ASCLD/LAB under the ASCLD/LAB-Legacy Accreditation program shall request ASCLD/LAB to conduct an interim inspection during the third year of the five-year accreditation period. A forensic laboratory must submit to the division a copy of any documentation submitted to ASCLD/LAB or ABFT or received therefrom as part of the continuing compliance requirements, including any notification of disciplinary action taken by ASCLD/LAB or ABFT against such laboratory. Such documentation shall be reviewed by the commission, and appropriate action may be taken against such laboratory, if necessary.

6190.6 Sanctions for noncompliance; appeals.

(a) In accordance with Executive Law section 995-b(3) (e), the commission (and with respect to forensic DNA laboratories, upon the binding recommendation of the DNA subcommittee to the commission) may revoke, suspend or otherwise limit the NYS accreditation of a forensic laboratory, if the commission, or where appropriate, the DNA subcommittee determines that the forensic laboratory or one or more persons in its employ:

(1) is guilty of misrepresentation in obtaining a forensic laboratory NYS accreditation;

(2) 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;

(3) showed unacceptable error or errors in the performance of forensic laboratory examination procedures;

(4) failed to file any report required to be submitted pursuant to EL article 49-B or violated in a material respect any provision of that article; or

(5) violated in a material respect any provision of this Part, including the continuing compliance requirements of ASCLD/LAB or ABFT; or

(6) failed to participate in or to meet the standards of any proficiency test required by the DNA subcommittee and/or the commission.

(b) A forensic DNA laboratory found to be in violation of the provisions of subdivision (a) of this section shall be subject to the following sanctions:

(1) Probation: NYS accreditation becomes probationary for a limited, specified time. Analytical work can continue uninterrupted provided the laboratory adheres to specified requirements and/or conditions.

(2) Suspension: NYS accreditation is suspended pending demonstration within a specified time frame that the laboratory has remedied the problem.

(3) Revocation: NYS accreditation is revoked for a minimum specified time after which the laboratory may submit a new application for NYS accreditation. The laboratory shall cease performing casework analysis until reaccredited.

(c) No forensic laboratory NYS accreditation shall be revoked, suspended, or otherwise limited without a hearing. On its own initiative or, with respect to forensic DNA laboratories at the request of the DNA subcommittee, 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 NYS accreditation at the address of such holder at least 21 days prior to the date fixed for such hearing. A NYS accredited laboratory may file a written answer to the charges with the commission and, where appropriate, the DNA subcommittee, not less than 5 days prior to the hearing. The hearing shall be conducted by the commission, or where appropriate, the DNA subcommittee. The laboratory director shall be allowed to appear in person and present relevant testimony. If the DNA subcommittee conducts such hearing, it shall make a binding recommendation to the commission with respect to the appropriate sanction, if any.

(d) NYS accreditation shall be reinstated when the forensic laboratory demonstrates to the satisfaction of the commission, and, where appropriate, upon the binding recommendation of the DNA subcommittee, that the deficiencies which resulted in the sanctions have been corrected.

(e) The outcome of any disciplinary proceeding conducted by ASCLD/LAB or ABFT with respect to ASCLD/LAB or ABFT accreditation shall not bind the DNA subcommittee or commission with respect to the imposition of sanctions as set forth in this Part.