Current through Register Vol. 46, No. 12, March 20, 2024
(a) A New York State and national criminal
history information check is required to be conducted on all subject
individuals as defined in section
701.4 of
this Part.
(b) Any provider of
services subject to compliance with this Part that is issued an operating
certificate on or after June 30, 2013 shall request a New York State and
national criminal history information check of natural persons with an
ownership interest in such provider, if the natural person will have regular
and substantial unsupervised or unrestricted physical contact with individuals
receiving services. Any change in the ownership interest of any provider on or
after June 30, 2013, for which a new natural person with the requisite contact
becomes an operator shall require a New York State and national criminal
history record check of such new operator, which shall be performed in concert
with applicable licensing or approval processes established by the
commissioners of the applicable State agencies.
(c) 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.
(d)
Process for requesting criminal
history information checks.
(1) Prior
to requesting a criminal history information check for any subject individual,
a provider of services subject to this Part shall request the Justice Center to
check its register of substantiated category one cases of abuse or neglect,
also known as the staff exclusion list. If the check of the staff exclusion
list does not preclude the provider of services from hiring or utilizing the
subject individual pursuant to subdivision (3) of section
495 of the Social Services Law, the provider
may proceed with requesting a criminal history information check.
(2) Before a provider of services can request
a criminal history information check pursuant to this section, it must
designate an authorized person. Such authorized person must complete a sworn
statement on a Justice Center form that shall be submitted to and maintained by
the Justice Center, which attests that the authorized person:
(i) will request a criminal history
information check only on those individuals that the provider of services has
determined to be subject individuals;
(ii) will, along with each request, submit a
summary of the specific duties of the subject individual that qualify the
provider of services to request the criminal history information
check;
(iii) will ensure 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) will ensure that the provider of
services, its agents, and employees are aware of and will abide by the
confidentiality requirements and all other provisions of section
845-b of the Executive Law.
(3) As part of a provider of
services' initial application to the Office of Mental Health, the Office for
People with Developmental Disabilities or the Office of Children and Family
Services, as applicable, to provide services in accordance with the regulations
of the applicable agency, its authorized person(s) shall be responsible for
ensuring that a request for a criminal history information check is submitted
to the Justice Center for each subject individual associated with the
provider.
(4) As part of a provider
of services' renewal of a license to provide services in accordance with the
regulations of the State agency with jurisdiction over such services, its
authorized person(s) shall be responsible for requesting a criminal history
information check of any operator who joined the organization on or after June
30, 2013 who has the requisite contact and who previously did not have a
criminal history record check performed.
(5) The authorized person(s) of every
provider of services subject to this Part shall be responsible for requesting
the criminal history information check for each subject individual by
registering the subject individual with the designated fingerprinting
entity.
(6) For each criminal
history information check request, the providers' authorized person(s) shall be
responsible for:
(i) obtaining the signed
applicant consent for fingerprinting form which includes a current mailing
address for the applicant; and advises applicant that the provider is required
to request this criminal history information check and review the results in
accordance with section
845-b of the Executive Law; and that the
check will include both NYS and national criminal history information. Such
form shall include an indication that the applicant:
(a) has consented to such request;
and
(b) has or has not been
convicted of a crime or have any open/pending felony or misdemeanor charges in
New York State or any other jurisdiction.
(ii) providing the applicant with the
personal criminal history information review form which advises applicant of
the right and procedures to obtain, review, and seek correction of his or her
criminal history information.
(e) In certain circumstances, the authorized
person may be provided with an additional abuse and neglect notification about
a subject individual in accordance with section
562 of the Executive Law.
(f) A licensed or otherwise approved provider
of services may temporarily approve a subject individual while the results of
the criminal history information check are pending, but shall not allow such
person to have unsupervised or unrestricted physical contact with individuals
receiving services during such time.
(1) For
purposes of this subdivision, unsupervised or unrestricted physical contact
shall mean in-person, face-to-face communication or interaction with
individuals receiving services, 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 by or under contract or agreement
with the provider of services and who:
(i)
has management or oversight authority over the subject individual; or
(ii) has been deemed by such provider to be
qualified to provide adequate oversight of temporarily approved subject
individuals.
(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 subject
individual in order to protect the health, safety and welfare of individuals
receiving services, taking into consideration the nature of the environment
(
e.g., physical plant considerations), staffing patterns,
employee responsibilities and the characteristics of individuals receiving
services, and must include provisions which:
(i) require that temporarily approved subject
individuals 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 subject individuals is always present in the same room at all times
while such personal care activities are occurring;
(ii) provide that if the provider of services
has been previously informed by the subject individual in the application
process, or by the Justice Center prior to issuance of its determination, of an
existing conviction or pending charge, the provider shall prevent any person
with a conviction or pending charge of one or more of the following from being
temporarily approved:
(a) a felony sex
offense;
(b) a felony within the
past 10 years involving violence;
(c) abandoning a child and/or endangering the
welfare of an incompetent, physically disabled or vulnerable elderly person
pursuant to section
260.00,
260.25,
260.32 or
260.34 of the Penal Law; or
(d) any comparable offense in any other
jurisdiction; and
(iii)
provide that, in cases where the temporarily approved subject individual 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 individuals receiving services at risk of
harm, provided that the provider of services has been previously informed by
the subject individual in the application process, or by the Justice Center
prior to issuance of its determination, of such conviction or pending
charge.
