New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XXI - OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES
Part 805 - Criminal History Information Reviews
Section 805.5 - Submission of fingerprints by prospective employees, contractors or volunteers

Universal Citation: 14 NY Comp Codes Rules and Regs ยง 805.5

Current through Register Vol. 46, No. 39, September 25, 2024

(a) The office shall perform a criminal history information check on behalf of any provider of services seeking to hire, contract with or utilize services of a prospective employee, contractor or volunteer. For purposes of this Part, the inclusion of a national criminal history information check shall apply to all prospective employees, contractors or volunteers whose requests are submitted to the office for a criminal history information check because such persons will have the potential for, or may be permitted, regular and substantial unsupervised or unrestricted physical contact with the clients in such treatment facilities.

(b) Criminal history information checks required in accordance with this section shall apply only to persons who are prospective employees, contractors or volunteers as defined in this Part or as identified by the office or the provider of services.

(c) The division shall supply the office, or every provider of services subject to the provisions of this section, with information identifying the designated fingerprinting entities which may be utilized to facilitate compliance with this Part.

(d) Fingerprint submission process.

Upon receipt of an application from a prospective employee, contractor or volunteer every provider of services subject to this Part shall:

(1) Check the Justice Center's Register of Substantiated Category One cases of Abuse and 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 and shall obtain and maintain documentation regarding paragraphs (2)-(4) of this subdivision.

(2) Inform the individual, in writing, that the provider is authorized, and in some cases required, to request a check of his or her criminal history information and check the results of such check in accordance with section 19.20 of the Mental Hygiene Law.

(3) Obtain signed informed consent from the subject individual on a form acceptable to the division indicating that such person has:
(i) been informed of the right and procedures necessary to obtain, review and seek correction of his or her criminal history information;

(ii) been informed of the reason for the request;

(iii) been informed that the criminal history information sought will include both a New York State and a national criminal history information check;

(iv) consented to such request for a report of his or her New York State and national criminal history;

(v) 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;

(vi) 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; and

(vii) supplied the provider with his or her current mailing or home address.

(4) Upon receiving such consent, the provider shall:
(i) refer the prospective employee, contractor or volunteer to the designated fingerprinting entity for fingerprinting; and

(ii) complete and submit a form provided by the designated fingerprinting entity, such form to be completed by the authorized person and maintained by the provider, and include a sworn statement from the authorized person attesting that:
(a) the authorized person identifies the name of each person for whom a criminal history information check is being requested, and attests that each such person is either a prospective employee, contractor or volunteer of the provider of services, and, as such, the person is a subject individual, as defined in section 805.4 of this Part;

(b) the authorized person identifies the specific duties which qualify the provider of services to request a check of the subject individual's criminal history information;

(c) the results of the criminal history information check will be used by the provider of services solely for the purposes authorized by law; and

(d) the provider of services, its agents, and employees are aware of and will abide by the confidentiality requirements of section 845-b of the Executive Law.

(iii) maintain documentation demonstrating that the provider of services has complied with paragraph (3) of this subdivision.

(e) Temporary approval.

A 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(s) 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, contractors 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) endangering the welfare of an incompetent or physically disabled person as defined in sections 260.24 and 260.25 of the Penal Law or endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person as defined in sections 260.32 and 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 prospective employee or volunteer has a conviction or pending felony charge other than as specified in subparagraph (ii) of this paragraph, or any conviction or 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.

(f) A subject individual may withdraw from the application process, without prejudice, at any time regardless of whether he or she, the office or the provider has reviewed his or her criminal history information, provided that upon such withdrawal from the application process, any fingerprints and/or criminal history information received by the office or provider shall be destroyed.

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