New York Codes, Rules and Regulations
Title 10 - DEPARTMENT OF HEALTH
Chapter V - Medical Facilities
Subchapter A - Medical Facilities-minimum Standards
Article 1 - General
Part 402 - Criminal History Record Check
Section 402.4 - General requirements
Universal Citation: 10 NY Comp Codes Rules and Regs ยง 402.4
Current through Register Vol. 46, No. 39, September 25, 2024
(a)
(1) Each provider shall assure that criminal
history information is requested, received, reviewed, and acted upon in a
timely manner. Each provider shall designate one authorized person or, when
necessary to assure compliance with this Part more authorized persons, and
shall submit the name, position and contact information for each authorized
person to the department in the form and format required by the
department.
(2) A provider may
request the designation of more authorized persons, as provided for in
paragraph (1) of this subdivision, with the basis for such request. The
department shall determine the reasonableness of such request weighing the need
for maintaining confidentiality of the criminal history information against the
provider's administration of criminal history record checks.
(b) Each provider shall develop and implement written policies and procedures related to conducting criminal history record checks. Such policies and procedures shall include criteria for:
(1) determining whether a particular
prospective employee is subject to a criminal history record check;
(2) protecting the safety of persons
receiving services from temporary employees as follows:
(i) residential health care facilities shall
ensure that temporary employees do not have unsupervised physical contact with
patients, by utilizing a person employed by the provider on the same nursing
unit as the temporary employee but such person employed by the provider need
not be employed in the same department as the temporary employee. Such person
must know the identity and assignment of each temporary employee so supervised
in the residential health care facility at all times. Supervision must be
documented in writing on a weekly basis and maintained in the temporary
employee's personnel folder;
(ii)
certified home health agencies, licensed home care service agencies, and long
term home health care programs shall provide appropriate direct observation and
evaluation of the temporary employee by utilizing an individual employed by
such provider with a minimum of one year's experience working in a provider
certified, licensed or approved under article 36 of the Public Health Law. Such
observation and evaluation shall occur on a weekly basis provided, however,
that such direct observation and evaluation shall occur on-site in the home the
first week by a licensed health care professional, senior aide or other
paraprofessional who meets the one year requirement of employment in home care
and at least once every other week thereafter by an individual meeting the
minimum one year experience as set forth in this subparagraph. On alternate
weeks direct observation and evaluation may be on-site in the home or by phone
call to the patient or the patient's representative. The results of such
observations shall be documented in the temporary employee's personnel file and
shall be maintained;
(iii) if the
temporary employee is working under contract with another provider certified,
licensed or approved under article 36 of the Public Health Law, such contract
provider's appropriate direct observation and evaluation of the temporary
employee, as described in this subparagraph, shall be considered sufficient for
the purposes of complying with this paragraph. The results of such observations
shall be documented in the temporary employee's personnel file and shall be
maintained;
(iv) Adult homes,
enriched housing programs, and residences for adults shall provide appropriate
direct observation and evaluation of the temporary employee by utilizing an
individual employed by the provider to conduct on-site supervision. Such
individual must know the identity and assignment of each temporary employee so
supervised in the adult home, enriched housing program, or residence for adults
at all times. Supervision must be documented in writing on a weekly basis and
maintained in the temporary employee's personnel folder.
(v) Hospice programs certified under Article
40 of the Public Health Law shall provide appropriate direct observation and
evaluation of the temporary employee by utilizing an individual employed by
such provider with a minimum of one year's experience working for a provider
certified, licensed or approved under Article 40 the Public Health Law or
through a contract with another provider certified, licensed or approved under
Article 36 of the Public Health Law. Such observation and evaluation shall
occur on a weekly basis provided, however, that such direct observation and
evaluation shall occur on-site in the home the first week by a licensed health
care professional, senior aide or other paraprofessional who meets the one year
requirement of employment in home care or hospice and at least once every other
week thereafter by an individual meeting the minimum one year experience as set
forth in this subparagraph. On alternate weeks direct observation and
evaluation may be on-site in the home or by phone call to the patient or the
patient's representative. The results of such observations shall be documented
in the temporary employee's personnel file and shall be
maintained.
(3) providing
notice to the department when a person ceases to be a subject individual since
the person is no longer employed or used by the provider or such person's job
duties no longer meet the definition of employee set forth in section
402.3(i) of this
Part to provide direct care or supervision to patients, residents, or clients
of the provider in the form, format and manner required by the
department.
(c) No person who has been fingerprinted pursuant to this Part, whose fingerprints remain on file with the division, shall be required to undergo fingerprinting for purposes of a new criminal history record check required by this Part.
(d) Nothing in this Part shall be construed or interpreted to in any way diminish the integrity of any collective bargaining agreement negotiated on or before April 1, 2005 between a provider and any certified or authorized collective bargaining agent for employees, or to diminish rights which accrue to such employees pursuant to such agreements.
(e) No provider shall seek, directly or indirectly, to obtain from a prospective employee, temporary employee or employee compensation in any form for the payment of the fees or any provider or facility costs associated with obtaining the criminal history record check required by this Part.
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