New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIII - Office of Mental Health
Part 550 - Criminal History Record Checks
Section 550.6 - Criminal history review
Universal Citation: 14 NY Comp Codes Rules and Regs ยง 550.6
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 section, the office and the provider of services shall take the following actions:
(1) Applicant to be a natural person operator
of a new provider of services after April 1, 2005; or a new natural person
operator of an existing provider after April 1, 2005.
(i) Where an applicant to be an operator of a
new provider of services, or an applicant to be a new operator of an existing
provider of services, has no criminal history, the office shall promptly resume
its review of the application in accordance with the provisions of Part 551 or
Part 87 of this Title, as applicable.
(ii) Where the criminal history record of an
applicant to be an operator of a new provider of services, or an applicant to
be a new operator of an existing provider of services, reveals any of the
following, the Justice Center shall deny the application unless it determines,
in its discretion, that approval of the application will not in any way
jeopardize the health, safety or welfare of clients in the facility or program:
(a) a felony conviction at any time for a sex
offense;
(b) a felony conviction
within the past ten years involving violence;
(c) a conviction for endangering the welfare
of an incompetent or physically disabled person pursuant to section 260.25 of the Penal Law or, for
applicants to be an operator of a new provider of services or a new operator of
an existing provider that has been submitted on or after June 30, 2013, a
conviction of Section 260.00, 260.25, 260.32 or
260.34 of the Penal Law; or
(d) any comparable offense in any other
jurisdiction.
(iii)
Where the criminal history record of an applicant to be an operator of a new
provider of services, or an applicant to be a new operator of an existing
provider of services, reveals a conviction for any crime other than one set
forth in subparagraph (ii) of this paragraph, the office may, consistent with
article 23-A of the Correction Law, deny the application.
(iv) Where the criminal history record of an
applicant to be an operator of a new provider of services, or an applicant to
be a new operator of an existing provider of services, reveals a charge for any
felony or, for applications made on or after March 12, 2007, any comparable
offense in any other jurisdiction, the office shall hold the application in
abeyance until the charge is finally resolved.
(v) Where the criminal history record of an
applicant to be an operator of a new provider of services, or an applicant to
be a new operator of an existing provider of services, reveals a charge for any
misdemeanor or, for applications made on or after March 12, 2007, any
comparable offense in any other jurisdiction, the office may hold the
application in abeyance until the charge is finally resolved.
(2) Applicant to be an employee or
volunteer.
(i) Where a prospective employee
or volunteer of a provider of services has no criminal history, the Justice
Center shall promptly advise the provider of services that it shall not issue a
denial for employment or volunteer service and is not directing the provider of
services to issue a denial.
(ii)
Where the criminal history record of a prospective employee or volunteer of a
provider of services reveals any of the following, the Justice Center shall
direct the provider to deny employment of or authorization to provide services
by such person unless the Justice Center determines, in its discretion, that
approval of the application will not in any way jeopardize the health, safety
or welfare of clients in the facility or program:
(a) a felony conviction at any time for a sex
offense;
(b) a felony conviction
within the past ten years involving violence;
(c) a conviction for endangering the welfare
of an incompetent or physically disabled person pursuant to section 260.25 of the Penal Law or, for
applications submitted on or after June 30, 2013, a conviction of Section 260.00, 260.25, 260.32 or
260.34 of the Penal Law; or
(d) any comparable offense in any other
jurisdiction.
(iii) The Justice
Center shall provide a summary of the criminal history record along with such
notification provided, however, that with respect to information obtained from
the Federal Bureau of Investigation as a result of a national criminal history
record check, only information authorized for disclosure under applicable
Federal laws shall be transmitted to the provider.
(iv) In cases where
the Justice Center does not issue a denial, or does not direct the provider of
services to issue a denial, the provider of services may act on the application
in its own discretion, consistent with all applicable laws and regulations.
(v) Where the
criminal history record of a prospective employee or volunteer of a provider of
services reveals a conviction for any crime other than one set forth in
subparagraph (1)(ii) of this subdivision, the Justice Center may, consistent
with article 23-A of the Correction Law, direct the provider to deny
employment/authorization to provide services.
(a) The Justice Center shall provide a
summary of the criminal history record along with such notification provided,
however, that with respect to information obtained from the Federal Bureau of
Investigation as a result of a national criminal history record check, only
information authorized for disclosure under applicable Federal laws shall be
transmitted to the provider.
(b) In
cases where the Justice Center does not issue a denial, or does not direct the
provider of services to issue a denial, the provider of services may act on the
application on its own discretion, consistent with all applicable laws and
regulations.
(vi) Where the
criminal history record of a prospective employee or volunteer of a provider of
services reveals a charge for any felony or any comparable offense in any other
jurisdiction, the Justice Center shall hold the application in abeyance until
the charge is finally resolved.
(vii) Where the
criminal history record of a prospective employee or volunteer of a provider of
services reveals a charge for any misdemeanor or any comparable offense in any
other jurisdiction, the Justice Center may hold the application in abeyance
until the charge is finally resolved.
(b) Prior to making a determination to deny an application pursuant to subdivision (a) of this section, the office shall afford the prospective employee or volunteer an opportunity to explain in writing, within 10 calendar days from the date the notification was mailed, why the application should not be denied. The opportunity for an explanation shall be sent non-electronically, in a manner of mailing this is capable of verifying the date of mailing. For prospective operators and new operators of existing providers of service, this opportunity may, at the discretion of the office, be afforded in the application or certification renewal materials for such operators required to be submitted to the office.
(c) Where the office directs a provider of services to deny an application of a prospective employee or volunteer, or terminate a temporarily approved prospective employee or volunteer, based on the criminal history record, the provider of services must notify such person that such criminal history record is the basis of the denial. Such notification must advise the prospective employee or volunteer that a copy of the summary of the criminal history record provided by the office to the provider is available from the provider upon written request by the prospective employee or volunteer.
(d) Documentation and confidentiality requirements.
(1) Only the
authorized person or his or her designee and the relevant subject party shall
have access to criminal history information received by a provider of services.
However, criminal history information may be disclosed by the authorized person
to other parties who are directly participating in any decision with regard to
such subject party, to which this information is relevant provided, however,
that with respect to information obtained from the Federal Bureau of
Investigation as a result of a national criminal history record check, only
information authorized for disclosure under applicable Federal laws shall be
transmitted to the provider.
(2)
The authorized person and any other party to whom such criminal history is
disclosed shall keep this information strictly confidential.
(3) Any party who willfully permits the
release of any confidential criminal history information obtained from a
criminal background check pursuant to this section to parties not authorized to
receive same in accordance with section 845-b of the Executive Law shall be guilty
of a misdemeanor.
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