Current through Register Vol. 46, No. 39, September 25, 2024
(a) After reviewing a criminal history record
of an individual who is subject to a criminal history record check pursuant to
this Part, the department and the provider shall take the following actions:
(1) Where a prospective employee of a
provider has no criminal history information, the department shall promptly
advise the provider that the department will not issue a disapproval for
employment, is not directing the provider to issue a disapproval, and the
provider may act on the application in its own discretion.
(2) Where the criminal history information of
a prospective employee reveals a felony conviction at any time for a sex
offense, a felony conviction within the past 10 years involving violence, or a
conviction for endangering the welfare of an incompetent or physically disabled
person pursuant to section
260.25 of the
Penal Law, or where the criminal history information concerning such
prospective employee reveals a conviction at any time of any class A felony, a
conviction within the past 10 years of any class B or C felony, any class D or
E felony defined in article 120, 130, 155, 160, 178 or 220 of the Penal Law or
any crime defined in section
260.32 or
260.34 of the
Penal Law or any comparable offense in any other jurisdiction, the department
shall propose disapproval of such person's eligibility for employment unless
the department determines, in its discretion, that the prospective employee's
employment will not in any way jeopardize the health, safety or welfare of
patients, residents or clients of the provider.
(i) The department shall provide to the
provider and the prospective employee, in writing, a summary of the criminal
history information along with the notification identified in this paragraph.
Upon the provider's receipt from the department of a notification of proposed
disapproval of eligibility for employment, the provider shall not allow the
prospective employee to provide direct care or supervision to patients,
residents, or clients of such provider until receipt of a final determination
of eligibility for employment from the department.
(ii) In cases where the department determines
that the prospective employee's employment will not in any way jeopardize the
health, safety or welfare of patients, residents or clients of the provider and
therefore neither issues a disapproval of eligibility for employment nor
directs the provider to issue a disapproval, the provider may act on the
application in its own discretion.
(3) Where the criminal history information of
a prospective employee reveals a conviction for any crime other than one set
forth in paragraph (2) of this subdivision, the department may, consistent with
article 23-A of the Correction Law, propose disapproval of eligibility for
employment.
(i) The department shall provide
to the provider and the prospective employee, in writing, a summary of the
prospective employee's criminal history information along with the notification
identified in this paragraph. Upon the provider's receipt from the department
of a notification of proposed disapproval of eligibility for employment, the
provider shall not allow the prospective employee to provide direct care or
supervision to patients, residents, or clients of such provider until receipt
of a final determination from the department.
(ii) In cases where the department does not
issue a disapproval of eligibility for employment, the provider may act on any
application for employment in its own discretion, consistent with article 23-A
of the Correction Law.
(4) Where the criminal history information of
a prospective employee reveals a charge for any felony, the department shall
hold the determination regarding a prospective employee's eligibility for
employment in abeyance until the charge is finally resolved. Upon receipt of
notification from the department of the abeyance, the provider shall not allow
the prospective employee to provide direct care or supervision to patients,
residents, or clients of such provider before final resolution of the criminal
charge.
(5) Where the criminal
history information of a prospective employee reveals a charge for any
misdemeanor, the department may, after review of the severity of the
misdemeanor, hold such determination in abeyance until the charge is finally
resolved. If the department holds such determination in abeyance, the provider
shall not allow, upon receipt of notification of such determination from the
department, the prospective employee to provide direct care or supervision to
patients, residents, or clients of such provider before final resolution of the
criminal charge.
(b)
Prior to making a final determination to disapprove a prospective employee's
eligibility for employment pursuant to subdivision (a) of this section, the
department shall afford the prospective employee an opportunity to explain in
writing, within 30 calendar days from the date the notification was mailed to
the prospective employee, why the prospective employee's eligibility for
employment should not be disapproved. This notice shall be sent in a manner of
mailing that is capable of verifying the date of mailing.
(c) Where the department directs a provider
to disapprove eligibility for employment of a prospective employee, or
terminate a temporarily approved prospective employee based on the criminal
history information, the provider shall notify such prospective employee that
such criminal history information is the basis of the disapproval. Such
notification shall advise the prospective employee that a copy of the summary
of the criminal history information provided by the department to the provider
is available from the provider upon written request by the prospective
employee.
(d) Documentation and
confidentiality requirements.
(1) Only an
authorized person(s) or his or her designee who shall be employed by the
provider and the subject individual shall have access to criminal history
information received by a provider pursuant to this Part. However, criminal
history information may be disclosed by an authorized person(s) to other
persons who directly participate in any decision by the provider with regard to
such subject individual, to which this criminal history information is
relevant.
(2) Each authorized
person(s) and any other party to whom such criminal history information is
disclosed shall keep criminal history information strictly
confidential.
(3) Any party who
willfully permits the release of any confidential criminal history information
obtained from a criminal history record check pursuant to this section to
parties not authorized to receive it in accordance with article 28-E of the
Public Health Law and section
845-b of the
Executive Law shall be guilty of a misdemeanor pursuant to section
12-b of the
Public Health Law.
