New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XX - JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS
Part 701 - JUSTICE CENTER CRIMINAL HISTORY INFORMATION CHECKS
Section 701.6 - Criminal history review and evaluation
Universal Citation: 14 NY Comp Codes Rules and Regs ยง 701.6
Current through Register Vol. 46, No. 39, September 25, 2024
(a) After the Justice Center reviews the criminal history information of a subject individual, the Justice Center and the provider of services shall take the following actions:
(1) If the subject individual is a natural
person operator of a new provider of services on or after June 30, 2013; or a
new natural person operator of an existing provider on or after June 30, 2013:
(i) when a subject individual under this
subdivision has no criminal history, the Justice Center shall promptly advise
the commissioner of the State agency to whom the application for licensing,
certification or renewal was submitted to resume its review of the application
in accordance with its implementing regulations;
(ii) when the criminal history information of
a subject individual under this subdivision 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 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 any comparable
offense in any other jurisdiction, the Justice Center shall advise the
commissioner of the State agency to whom the application was submitted that the
application must be denied, unless the commissioner of such agency in
consultation with the Justice Center, determines, in his or her discretion,
that approval of the application will not in any way jeopardize the health,
safety or welfare of individuals receiving services in the facility or
program;
(iii) when the criminal
history information of a subject individual under this subdivision reveals a
conviction for any crime other than one set forth in paragraph (ii) of this
subdivision, the Justice Center may, consistent with article 23-A of the
Correction Law, advise the commissioner of the State agency to whom the
application was submitted that the application process shall be denied, unless
the commissioner of such agency in consultation with the Justice Center,
determines, in his or her discretion, that approval of the application will not
in any way jeopardize the health, safety or welfare of individuals receiving
services in the facility or program;
(iv) when the criminal history information of
a subject individual under this subdivision reveals a pending charge for any
felony or any comparable offense in any other jurisdiction, the Justice Center
shall advise the commissioner of the State agency to whom the application was
submitted that the application must be held in abeyance until the charge is
finally resolved;
(v) when the
criminal history information of a subject individual under this subparagraph
reveals a pending charge for any misdemeanor or any comparable offense in any
other jurisdiction, the Justice Center may advise the commissioner of the State
agency to whom the application was submitted that the application should be
held in abeyance until the charge is finally resolved or give guidance that the
provider may act on the application in its own discretion, consistent with
applicable laws and regulations.
(2) If the subject individual is a
prospective employee or volunteer for a provider of services:
(i) when a subject individual under this
paragraph has no criminal history, the Justice Center shall promptly advise the
provider of services that the subject individual is cleared for the provider's
consideration for hiring;
(ii) when
the criminal history information of such a subject individual reveals a felony
conviction at any time for a sex offense, a felony conviction within the past
10 years involving violence, a conviction for 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 any comparable
offense in any other jurisdiction, 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, after reviewing
material submitted by the applicant, if any, pursuant to subdivision (b) of
this section, that approval of the application will not in any way jeopardize
the health, safety or welfare of individuals receiving services in the facility
or program;
(iii) when the criminal
history record of a subject individual of a provider of services reveals a
conviction for any crime other than one set forth in subparagraph (ii) of this
paragraph, the Justice Center may, consistent with article 23-A of the
Correction Law, direct the provider to deny employment or authorization to
provide services by such person, unless the Justice Center determines, in its
discretion, after reviewing material submitted by the applicant, if any,
pursuant to subdivision (b) of this section, that approval of the application
will not in any way jeopardize the health, safety or welfare of individuals
receiving services in the facility or program;
(iv) in cases in which 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) when the criminal history information of
a subject individual of a provider of services reveals a pending 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;
(vi) when the criminal
history information of a subject individual of a provider of services reveals a
pending 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 or give guidance that the provider may act on the
application in its own discretion, consistent with applicable laws and
regulations.
(b) Prior to making a determination to deny an application pursuant to subdivision (a) of this section, the Justice Center shall afford the subject individual or a new operator of an existing provider of services an opportunity to explain in writing, within 20 calendar days from the date the notification was mailed, why the application should not be denied.
(c) When the Justice Center directs a provider of services to deny an application of a subject individual, or to terminate a temporarily approved subject individual, based on the criminal history information, the provider of services shall notify such person that such criminal history information is the basis of the denial. The subject individuals shall be entitled to receive a copy of the summary of the New York criminal history information provided by the Justice Center to the provider of services from the provider of services upon written request by the subject individual.
(d) Documentation and confidentiality requirements.
(1)
Only the authorized person and the relevant subject individual shall have
access to any summary of New York criminal history information that may have
been received by a provider of services. However, the summary of New York State
criminal history information may be disclosed by the authorized person to other
parties who are directly participating in any decision with regard to a subject
individual, to which this information is relevant, provided, however, that with
respect to information obtained from the FBI as a result of a national criminal
history record check, no information shall be transmitted to the
non-governmental provider.
(2) The
authorized person and any other party to whom such summary of New York State
criminal history information is disclosed shall keep this information strictly
confidential.
(3) Any party who
willfully permits the release of any summary of New York State criminal history
information to parties not authorized to receive same in accordance with
section 845-b of the Executive Law or this
regulation shall be guilty of a misdemeanor.
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