Current through Register Vol. 46, No. 39, September 25, 2024
(a) The Justice Center shall perform a
criminal history record check regarding any prospective operator, employee, or
volunteer of a provider of services which is required to comply with Section 31.35 of the Mental Hygiene Law. For
purposes of this Part, the inclusion of a national criminal history background
check shall apply to all prospective operators, employees, or volunteers whose
applications are submitted to the Justice Center for a criminal history
background check on or after March 12, 2007.
(b) Any provider of services subject to
compliance with this Part which is issued an operating certificate on or after
April 1, 2005 shall require a criminal history record check of natural persons
with an ownership interest in such providers, provided, however, that for
purposes of this Part, the inclusion of a national criminal history background
check of natural persons with such an ownership interest shall apply to all
providers of service issued an operating certificate on or after March 12,
2007. Any change in the ownership interest of any provider on or after April 1,
2005, for which a new natural person becomes or joins as an operator shall
require a criminal history record check of such new natural person or persons,
which shall be performed in concert with the prior approval process established
in section
551.6
of this Title, or the application process established in section 87.3 of this
Title, as applicable. For purposes of this Part, the inclusion of a national
criminal history background check of new or additional natural person operators
shall apply to all such changes in ownership proposed on or after March 12,
2007.
(c) Criminal history record
reviews required in accordance with this Part shall apply only to persons who
are prospective employees or volunteers, as defined in this Part, as identified
by the provider of services.
(d)
The Justice Center shall supply every provider of services that is subject to
the provisions of this Part with information identifying the designated
fingerprinting entities that may be utilized to facilitate compliance with this
Part.
(e) Fingerprint submission
process.
(1) Prior to requesting a criminal
background check for any prospective employee or volunteer, as defined in
section
550.4 of
this Part, a provider of services subject to this Part shall check the Justice
Center's Register of Substantiated Category One Cases of Abuse or Neglect. If
the applicant's name appears on the Register, the provider of services shall
not process the application. If the applicant's name does not appear on the
register, the provider of services may proceed with the fingerprint submission
process in accordance with the provisions of this Section.
(2) As part of a provider of services'
initial application for a license to provide mental health services in
accordance with Article 31 of the Mental Hygiene Law, its authorized person(s)
shall be responsible for furnishing the Justice Center with the fingerprints of
the prospective operator of the provider, as well as those of any prospective
employee or volunteer of the provider of services, as defined in Section
550.4 of
this Part.
(3) As part of a
provider of services' renewal of a license to provide mental health services in
accordance with Article 31 of the Mental Hygiene Law, its authorized person(s)
shall be responsible for furnishing the Justice Center with fingerprints of any
operator who joined the organization subsequent to April 1, 2005 and who
previously did not have a criminal history record check performed.
(4)
Every provider of services subject to this Part shall be responsible for
obtaining a set of fingerprints for each prospective employee or volunteer of
the provider of services, as defined in Section
550.4 of
this Part, and its authorized person(s) shall submit same to the Justice Center
for a criminal background check.
(5) Prior to
requesting a criminal background check for any prospective employee or
volunteer, as defined in section
550.4 of
this Part, a provider of services subject to this Part shall obtain, and
maintain, documentation demonstrating that:
(i) the provider of services has informed the
prospective employee or volunteer, in writing, that such provider is
authorized, and in some cases, required, to request a check of his or her
criminal history information and review the results of such check in accordance
with Section 845-b of the Executive Law;
(ii) the provider of services has informed
the prospective employee or volunteer that he or she has the right to obtain,
review, and seek correction of his or her criminal history record in accordance
with regulations and procedures of the Division and the Federal Bureau of
Investigation;
(iii) the provider
of services has obtained the signed, informed consent of the prospective
employee or volunteer on a form supplied by the Justice Center which indicates
that such person:
(a) has been informed of
the right and procedures necessary to obtain, review, and seek correction of
his or her criminal history information;
(b) has been informed of the reason for the
request for his or her criminal history information;
(c) has been informed that the criminal
history information sought will include both a New York State and, on or after
March 12, 2007, a national criminal history information check;
(d) has consented to such request for a
report of his or her criminal history information with respect to New York
State and, on or after March 12, 2007, national criminal history
information;
(e) has supplied a
current mailing or home address on the form;
(f) has or has not, to the best of his or her
knowledge, ever been convicted of a crime in New York State or any other
jurisdiction; and
(g) has or has
not, to the best of his or her knowledge, any felony or misdemeanor charges
currently pending against him or her that remain unresolved.
(6) A provider of
services requesting a criminal background check pursuant to this Section shall
do so by completing and submitting a form developed and provided by the Justice
Center, in consultation with the Division. The form shall be completed by the
authorized person, shall be submitted to the Justice Center and maintained
thereby pursuant to an agreement with the Division, and shall include a sworn
statement from the authorized person, in the form and format prescribed by the
Justice Center, which attests:
(i) that the
authorized person shall identify the name of each person for whom a criminal
history record check is being requested, and attests that each such person is
either a prospective operator, employee, or volunteer of the provider of
services, and, as such, the person is a subject individual, as defined in
Section
550.4 of
this Part;
(ii) that the authorized
person shall identify the specific duties which qualify the provider of
services to request a check of the subject individual's criminal history
information;
(iii) that the results
of the criminal history information check will be used by the provider of
services solely for the purposes authorized by law; and
(iv) that the provider of services, its
agents, and employees are aware of and will abide by the confidentiality
requirements and all other provisions of Chapter 575 of the Laws of
2004.
(f) A
licensed or otherwise approved provider of services may temporarily approve a
prospective employee or volunteer while the results of the criminal history
record check are pending, but shall not allow such person to have unsupervised
physical contact with clients during such time.
(1) For purposes of this Part, unsupervised
physical contact shall mean in-person, face to face communication or
interaction with clients, or the reasonable opportunity for such communication
or interaction, while not at all times in the reasonable physical proximity of
another person, who is employed or under contract with the provider of services
and who:
(i) has management or oversight
authority over the prospective employee or volunteer; or
(ii) has had at least six months of
experience as an employee of the provider of services and has been deemed by
such provider to be qualified to provide adequate oversight of temporarily
approved prospective employees or volunteers.
(2) Such provider must establish policies and
procedures to implement the provisions of this subdivision. Such policies and
procedures shall address the need for supervision to monitor the activities of
the temporarily approved prospective employee or volunteer in order to ensure
the health, safety, and welfare of clients, taking into consideration the
nature of the environment (e.g., physical plant considerations), staffing
patterns, employee responsibilities, and the characteristics of clients, and
must include provisions which:
(i) ensure that
temporarily approved prospective employees or volunteers who are to be assigned
personal care activities which require privacy for people receiving services
(e.g., bathing, dressing and toileting), are supervised in accordance with
paragraph (1) of this subdivision, and that the individual designated to
supervise such temporarily approved prospective employee or volunteer is always
present in the same room as such prospective employee or volunteer at all times
while such personal care activities are occurring;
(ii) prevent any person with a conviction or
pending charge of one or more of the following from being temporarily approved,
provided that the provider of services has been previously informed by the
prospective employee or volunteer in the application process, or by the office
prior to issuance of its determination, of such conviction or pending charge:
(a) a felony sex offense;
(b) a felony within the past 10 years
involving violence;
(c) for
endangering the welfare of an incompetent or physically disabled person
pursuant to Sections 260.00, 260.25, 260.32 or
260.34 of the Penal Law; or
(d) on or after March 12, 2007, any
comparable offense in any other jurisdiction; and
(iii) provide that, in cases where the
temporarily approved prospective employee or volunteer has a pending felony
charge other than as specified in subparagraph (ii) of this paragraph, or any
pending misdemeanor charge, the provider of services must document its reasons
for granting temporary approval, including an explanation as to why such action
will not place clients at risk of harm, provided that the provider of services
has been previously informed by the prospective employee or volunteer in the
application process, or by the office prior to issuance of its determination,
of such conviction or pending charge.
