(a) (1) Chapter 769 of the Laws of 2005, as amended by Chapters 331 and 673 of the Laws of 2006, imposed the requirement for review of the criminal history record of certain prospective employees of residential health care facilities licensed under Article 28 of the Public Health Law and certified home health agencies, licensed home care services agencies or long term home health care programs certified, licensed, or authorized under Article 36 of the Public Health Law who are hired or used on or after September 1, 2006 and who will provide direct care or supervision to patients, residents or clients of such providers.
(2) Chapter 60 of the Laws of 2014, Part A, sections 22 and 24, as amended by Chapter 94 of the Laws of 2014, imposed the requirement for review of the criminal history record of certain employees of adult homes, enriched housing programs, and residences for adults licensed under Article 7 of the Social Services Law who are hired or used on or after January 1, 2015 and who will provide direct care or supervision to residents of such providers.
(3) Chapter 471 of the Laws of 2016, as amended by Chapter 206 of the Laws of 2017, imposed the requirement for review of the criminal history record of certain employees of providers certified under Article 40 of the Public Health Law who are hired on or after April 1, 2018 and who will provide direct care or supervision to patients of such providers.
(b) This legislation was intended to enable such providers to secure appropriate individuals to staff their facilities and programs, by utilizing criminal history information concerning individuals seeking employment.
(c) The purpose of this Part is to establish standards and procedures for such criminal history record checks.
This part shall apply to every provider of services to patients, residents, or clients that is:
(a) a residential health care facility licensed under Article 28 of the Public Health Law;
(b) a certified home health agency, licensed home care services agency, or long term home health care program certified, licensed, or authorized under Article 36 of the Public Health Law;
(c) an adult home, enriched housing program, or residence for adults licensed under Article 7 of the Social Services Law; or
(d) a hospice program licensed, certified, or authorized under Article 40 of the Public Health Law.
Section 402.3 Definitions. For purposes of this Part, the following terms shall have the following meanings.
(a) "Authorized person" means each individual designated by a provider who is authorized to request, receive and review criminal history information in accordance with this Part.
(b) "Commissioner" means the Commissioner of the New York State Department of Health.
(c) "Criminal history information" means a record of pending New York State criminal charges, New York State criminal convictions which have not been vacated or reversed, information from the Federal Bureau of Investigation (FBI) obtained as a result of a national criminal history record check, and certificates of relief from disabilities or certificates of good conduct filed pursuant to subdivision two of section seven hundred five of the Correction Law and which the Division is required to maintain pursuant to subdivision (6) of section 837 of the Executive Law.
(d) "Criminal conviction" means a judgment or sentence for a charge of a felony or misdemeanor under New York State law or a comparable crime under any other jurisdiction.
(e) "Department" means the New York State Department of Health.
(f) "Determination" means the decision made by the Department after reviewing criminal history information to approve or disapprove a prospective employee’s eligibility for employment by a provider.
(g) "Division" means the New York State Division of Criminal Justice Services.
(h) "Permanent record" means a permanent, written record of a determination and the criminal history information maintained by the Department.
(i) "Employee in direct care and supervision" means
(1) any unlicensed person employed by or used by a nursing home, licensed pursuant to Article 28 of the Public Health Law, who has physical access to a resident’s living quarters, or any unlicensed person providing face-to-face care following the resident's care plan in accordance with Section 410.2(h) of this Title;
(2) any unlicensed person employed by or used by a certified home health agency, licensed home care services agency, or long term home health care program pursuant to Article 36 of the Public Health Law, providing face-to-face care following the professional or paraprofessional plan of care developed for the individual patient in accordance with section 766.3 or 763.6 of this Title;
(3) any unlicensed person employed by or used by an adult home, enriched housing program, or residence for adults who provides residents face-to-face care or has physical access to a resident’s living quarters; or
(4) any unlicensed person employed by or used by a hospice program certified under Article 40 of the Public Health Law who provides patients face-to-face care following the professional or paraprofessional plan of care developed for the individual patient in accordance with section 793.4 of this Title.
(j) "Prospective employee" means any person to be employed or used by a provider, including those persons provided by a temporary employment agency, to provide direct care or supervision to patients, residents or clients, and whom the provider reasonably expects to hire, employ or use, where such person is hired, employed or used by:
(i) a residential health care facility on or after September 1, 2006;
(ii) a certified home health agency, licensed home care services agency, or long term home health care program on or after September 1, 2006;
(iii) an adult home, enriched housing program, or residence for adults on or after January 1, 2015; or
(iv) a hospice program on or after April 1, 2018. Persons licensed pursuant to Title 8 of the Education Law or Article 28-D of the Public Health Law are excluded from the meaning of the term. Such term shall not include volunteers.
(k) "Provider" means any entity subject to this Part as enumerated in section 402.2 of this Part.
(l) "Subject individual" means a person for whom a provider is authorized to request a check of criminal history information pursuant to section 845-b of the Executive Law, Article 28-E of the Public Health Law, and this Part.
(m) "Temporary employee" means a prospective employee who has been temporarily approved by a provider for employment after a request for a criminal history record check and pending a determination by the Department.
(a)(1) Each provider shall assure that criminal history information is requested, received, reviewed, and acted upon in a timely manner. Each provider shall designate one authorized person or, when necessary to assure compliance with this Part more authorized persons, and shall submit the name, position, and contact information for each authorized person to the Department in the form and format required by the Department.
(2) A provider may request the designation of more authorized persons, as provided for in paragraph (1) of this subdivision, with the basis for such request. The Department shall determine the reasonableness of such request weighing the need for maintaining confidentiality of the criminal history information against the provider's administration of criminal history record checks.
(b) Each provider shall develop and implement written policies and procedures related to conducting criminal history record checks. Such policies and procedures shall include criteria for:
(1) determining whether a particular prospective employee is subject to a criminal history record check;
(2) protecting the safety of persons receiving services from temporary employees as follows:
(i) Residential health care facilities shall ensure that temporary employees do not have unsupervised physical contact with patients, by utilizing a person employed by the provider on the same nursing unit as the temporary employee but such person employed by the provider need not be employed in the same department as the temporary employee. Such person must know the identity and assignment of each temporary employee so supervised in the residential health care facility at all times. Supervision must be documented in writing on a weekly basis and maintained in the temporary employee's personnel folder.
(ii) Certified home health agencies, licensed home care service agencies, and long term home health care programs shall provide appropriate direct observation and evaluation of the temporary employee by utilizing an individual employed by such provider with a minimum of one year's experience working in a provider certified, licensed or approved under Article 36 of the Public Health Law. Such observation and evaluation shall occur on a weekly basis provided, however, that such direct observation and evaluation shall occur on-site in the home the first week by a licensed health care professional, senior aide or other paraprofessional who meets the one year requirement of employment in home care and at least once every other week thereafter by an individual meeting the minimum one year experience as set forth in this subparagraph. On alternate weeks direct observation and evaluation may be on-site in the home or by phone call to the patient or the patient’s representative. The results of such observations shall be documented in the temporary employee's personnel file and shall be maintained.
(iii) If the temporary employee is working under contract with another provider certified, licensed or approved under Article 36 of the Public Health Law, such contract provider's appropriate direct observation and evaluation of the temporary employee, as described in this sub-paragraph, shall be considered sufficient for the purposes of complying with this paragraph. The results of such observations shall be documented in the temporary employee’s personnel file and shall be maintained.
(iv) Adult homes, enriched housing programs, and residences for adults shall provide appropriate direct observation and evaluation of the temporary employee by utilizing an individual employed by the provider to conduct on-site supervision. Such individual must know the identity and assignment of each temporary employee so supervised in the adult home, enriched housing program, or residence for adults at all times. Supervision must be documented in writing on a weekly basis and maintained in the temporary employee’s personnel folder.
(v) Hospice programs certified under Article 40 of the Public Health Law shall provide appropriate direct observation and evaluation of the temporary employee by utilizing an individual employed by such provider with a minimum of one year's experience working for a provider certified, licensed or approved under Article 40 the Public Health Law or through a contract with another provider certified, licensed or approved under Article 36 of the Public Health Law. Such observation and evaluation shall occur on a weekly basis provided, however, that such direct observation and evaluation shall occur on-site in the home the first week by a licensed health care professional, senior aide or other paraprofessional who meets the one year requirement of employment in home care or hospice and at least once every other week thereafter by an individual meeting the minimum one year experience as set forth in this subparagraph. On alternate weeks direct observation and evaluation may be on-site in the home or by phone call to the patient or the patient’s representative. The results of such observations shall be documented in the temporary employee’s personnel file and shall be maintained.
(3) providing notice to the Department when a person ceases to be a subject individual since the person is no longer employed or used by the provider or such person's job duties no longer meet the definition of employee set forth in Section 402.3(i) of this Title to provide direct care or supervision to patients, residents, or clients of the provider in the form, format and manner required by the Department.
(c) No person who has been fingerprinted pursuant to this Part, whose fingerprints remain on file with the Division, shall be required to undergo fingerprinting for purposes of a new criminal history record check required by this Part.
(d) Nothing in this Part shall be construed or interpreted to in any way diminish the integrity of any collective bargaining agreement negotiated on or before April 1, 2005 between a provider and any certified or authorized collective bargaining agent for employees, or to diminish rights which accrue to such employees pursuant to such agreements.
(e) No provider shall seek, directly or indirectly, to obtain from a prospective employee, temporary employee or employee compensation in any form for the payment of the fees or any provider or facility costs associated with obtaining the criminal history record check required by this Part.
(a) To the extent permitted by law, a provider shall request from a prospective employee a sworn statement disclosing any prior finding of patient or resident abuse, or a criminal conviction in this State or any other jurisdiction. Providers shall evaluate such statements in all hiring decisions, including any temporary employment allowed under this Part.
(b) The provider shall inform the subject individual in writing that:
(1) the provider is required to request a check of his or her criminal history information and review the results of such criminal history record check; and
(2) the subject individual has the right to obtain, review and seek correction of his or her criminal history information pursuant to rules and regulations established by the Division and the FBI.
(c) The provider shall obtain the signed, informed consent of the subject individual in the form and format specified by the Department which indicates that the subject individual has:
(1) been informed of the right and procedures necessary to obtain, review and seek correction of his or her criminal history information;
(2) been informed of the reason for the request for his or her criminal history information;
(3) consented to the request for a criminal history record check; and
(4) supplied on the form a current mailing or home address.
(d) A subject individual may withdraw his or her application for employment, without prejudice, at any time before employment is offered or declined, regardless of whether the subject individual or provider has reviewed the summary of the subject individual’s criminal history information.
(a) The provider shall ensure the submission of a request for a criminal history record check for each prospective employee. If a permanent record does not exist for the prospective employee, the Department shall be authorized to request and receive criminal history information from the Division concerning the prospective employee in accordance with the provisions of section 845-b of the Executive Law. Access to and the use of such information shall be governed by the provisions of such section of the Executive Law. The Division is authorized to submit fingerprints to the FBI for a national criminal history record check.
(b) A provider requesting a criminal history record check pursuant to this Part shall do so by completing and submitting a form developed and provided by the Department after consultation with the Division and transmitting two sets of fingerprints to the Department. An authorized person, and only an authorized person, shall complete such form and shall submit the original with the authorized person’s signature (not a facsimile signature) and two sets of fingerprints to the Department not more than ten days (excluding Saturdays, Sundays and legal holidays) after taking the fingerprints of the prospective employee. The Department shall maintain such form, in the form and format prescribed by the Department, which:
(1) identifies the name of each person for whom the provider requests a criminal record check, and attests that each such person is a prospective employee of the provider, and, as such, the person is a subject individual, as defined in this Part;
(2) identifies the specific duties of the subject individual which qualify the provider to request a check of the subject individual’s criminal history information;
(3) attests that the results of the criminal history record check will be used by the provider solely for the purposes authorized by law; and
(4) attests that the provider, its agents, and employees are aware of and will abide by the confidentiality requirements and all other provisions of Public Health Law Article 28-E and Executive Law section 845-b, as they may from time to time be amended.
(c)(1) In obtaining fingerprints as required by this Part, the provider shall require that the prospective employee present two forms of identification. One form shall be a government-issued identification containing the prospective employee’s signature. Examples of such identification are a valid driver’s license or a Department of Motor Vehicle ID, a current passport, valid military identification or valid school identification. At least one of the two forms of identification shall have a photograph of the prospective employee.
(2) If an external entity is used by the provider to obtain fingerprints, the provider shall ensure that the external entity shall require two of the forms of identification listed in paragraph (1) of this subdivision and that the external entity completes its part of the Department form and returns the fingerprints and the Department form required by this section only to the provider.
(3) If a fingerprint form is rejected by the division or the FBI the provider shall resubmit new prints within 14 days of notice from the Department of the rejection.
(d) A provider may temporarily approve a prospective employee while the results of the criminal history record check are pending. The provider shall implement the supervision requirements identified in section 402.4 of this Part, applicable to the provider, during the period of temporary employment.
(e) For subject individuals who have had a previous criminal history record check and determination issued by the Department, or for whom a criminal history record check has been submitted to the Department and a determination is pending, the provider shall submit a request for an expedited review in lieu of a regular submission provided for in this Part in the form, format and manner required by the Department. If the Department finds that an expedited request is not warranted, the Department will inform the authorized party that a regular submission is required, including fingerprints, so that a new criminal history record check can be conducted.
(a) After reviewing a criminal history record of an individual who is subject to a criminal history record check pursuant to this Part, the Department and the provider shall take the following actions:
(1) Where a prospective employee of a provider has no criminal history information, the Department shall promptly advise the provider that the Department will not issue a disapproval for employment, is not directing the provider to issue a disapproval, and the provider may act on the application in its own discretion.
(2) Where the criminal history information of a prospective employee reveals a felony conviction at any time for a sex offense, a felony conviction within the past ten years involving violence, or a conviction for endangering the welfare of an incompetent or physically disabled person pursuant to section 260.25 of the Penal Law, or where the criminal history information concerning such prospective employee reveals a conviction at anytime of any class A felony, a conviction within the past ten years of any class B or C felony, any class D or E felony defined in articles 120, 130, 155, 160, 178 or 220 of the Penal Law or any crime defined in sections 260.32 or 260.34 of the Penal Law or any comparable offense in any other jurisdiction, the Department shall propose disapproval of such person’s eligibility for employment unless the Department determines, in its discretion, that the prospective employee’s employment will not in any way jeopardize the health, safety or welfare of patients, residents or clients of the provider.
(i) The Department shall provide to the provider and the prospective employee, in writing, a summary of the criminal history information along with the notification identified in this paragraph. Upon the provider’s receipt from the Department of a notification of proposed disapproval of eligibility for employment, the provider shall not allow the prospective employee to provide direct care or supervision to patients, residents, or clients of such provider until receipt of a final determination of eligibility for employment from the Department.
(ii) In cases where the Department determines that the prospective employee’s employment will not in any way jeopardize the health, safety or welfare of patients, residents or clients of the provider and therefore neither issues a disapproval of eligibility for employment nor directs the provider to issue a disapproval, the provider may act on the application in its own discretion.
(3) Where the criminal history information of a prospective employee reveals a conviction for any crime other than one set forth in paragraph (2) of this subdivision, the Department may, consistent with article 23-A of the Correction Law, propose disapproval of eligibility for employment.
(i) The Department shall provide to the provider and the prospective employee, in writing, a summary of the prospective employee’s criminal history information along with the notification identified in this paragraph. Upon the provider’s receipt from the Department of a notification of proposed disapproval of eligibility for employment, the provider shall not allow the prospective employee to provide direct care or supervision to patients, residents, or clients of such provider until receipt of a final determination from the Department.
(ii) In cases where the Department does not issue a disapproval of eligibility for employment, the provider may act on any application for employment in its own discretion, consistent with article 23-A of the Correction Law.
(4) Where the criminal history information of a prospective employee reveals a charge for any felony, the Department shall hold the determination regarding a prospective employee’s eligibility for employment in abeyance until the charge is finally resolved. Upon receipt of notification from the Department of the abeyance, the provider shall not allow the prospective employee to provide direct care or supervision to patients, residents, or clients of such provider before final resolution of the criminal charge.
(5) Where the criminal history information of a prospective employee reveals a charge for any misdemeanor, the Department may, after review of the severity of the misdemeanor, hold such determination in abeyance until the charge is finally resolved. If the Department holds such determination in abeyance, the provider shall not allow, upon receipt of notification of such determination from the Department, the prospective employee to provide direct care or supervision to patients, residents, or clients of such provider before final resolution of the criminal charge.
(b) Prior to making a final determination to disapprove a prospective employee’s eligibility for employment pursuant to subdivision (a) of this section, the Department shall afford the prospective employee an opportunity to explain in writing, within thirty calendar days from the date the notification was mailed to the prospective employee, why the prospective employee’s eligibility for employment should not be disapproved. This notice shall be sent in a manner of mailing that is capable of verifying the date of mailing.
(c) Where the Department directs a provider to disapprove eligibility for employment of a prospective employee, or terminate a temporarily approved prospective employee based on the criminal history information, the provider shall notify such prospective employee that such criminal history information is the basis of the disapproval. Such notification shall advise the prospective employee that a copy of the summary of the criminal history information provided by the Department to the provider is available from the provider upon written request by the prospective employee.
(d) Documentation and confidentiality requirements.
(1) Only an authorized person(s) or his or her designee who shall be employed by the provider and the subject individual shall have access to criminal history information received by a provider pursuant to this Part. However, criminal history information may be disclosed by an authorized person(s) to other persons who directly participate in any decision by the provider with regard to such subject individual, to which this criminal history information is relevant.
(2) Each authorized person(s) and any other party to whom such criminal history information is disclosed shall keep criminal history information strictly confidential.
(3) Any party who willfully permits the release of any confidential criminal history information obtained from a criminal history record check pursuant to this section to parties not authorized to receive it in accordance with article 28-E of the Public Health Law and section 845-b of the Executive Law shall be guilty of a misdemeanor pursuant to section 12-b of the Public Health Law.
(a) Upon receiving notification from the Division that there is a pending criminal action or proceeding, or conviction, with regard to an employee, the Department shall promptly notify an authorized person(s) of a provider of the allegation or new conviction.
(b) The provider shall determine whether the action or proceeding or conviction presents a threat to the health, safety and well-being of a resident or patient.
(a) Recordkeeping. (1) Each provider shall establish, maintain, and keep current, a record of:
(i) a roster of current employees who were reviewed pursuant to this Part and a list of their staffing assignments; such roster shall be submitted by April 1 of each year or upon written request of the Department in a form and format specified by the Commissioner.
(ii) the names of each person for whom a request for a criminal history information was submitted to the Department;
(iii) for each such name recorded pursuant to subparagraph (ii) hereof, a copy of the signed informed consent form required pursuant to section 402.5 of this Part,
(iv) for each such name recorded pursuant to subparagraph (ii) hereof, the results of the criminal history record check and determination of the Department with regard to the employment;
(v) for certified home health care agencies, licensed home care services agencies or long term home health care programs licensed or certified under Article 36 of the Public Health Law, the onsite supervision and alternate week contacts made for assessment of temporary employees as set forth in Section 402.4(b)(2)(ii) of this Title;
(vi) for adult homes, enriched housing programs, and residences for adults licensed under Article 7 of the Social Services Law, the onsite supervision of temporary employees as set forth in section 402.4(b)(2)(iv) of this Title; and
(vii) for hospice programs certified under Article 40 of the Public Health Law, the onsite supervision and alternate week contacts made for assessment of temporary employees as set forth in section 402.4(b)(2)(v) of this Title.
(2) Such record shall be maintained in a manner that ensures the security of the information contained therein, but which also assures the Department of immediate and unrestricted access to such information upon its request, for the purpose of monitoring compliance with this Part.
(b) Notifications. A provider must immediately, but within no later than 30 calendar days after the event, notify the Department, and document such notification occurred, when:
(1) any prospective employee who is subject to a criminal history record check in accordance with this Part withdraws an application for employment or is no longer being considered as a prospective employee as defined in this Part; or
(2) any employee who was subject to, and underwent, a criminal history record check in accordance with this Part is no longer employed by the provider.
(3) any employee once subject to, and underwent, a criminal history record check in accordance with this Part but is no longer working in a position defined in section 403.2(e) of this Title for the provider.
(c) Retention and disposal of information. (1) Each provider subject to the provisions of this Part shall maintain information necessary to demonstrate compliance with this Part, as set forth in subdivision (a) of this section, for at least six years after the person ceases to be a subject individual, unless otherwise directed by the Department.
(2) If directed to do so by the Department, a provider subject to this Part shall dispose of the summary of the criminal history information and/or any other information related to criminal history record checks in accordance with such direction.
(3) Disposal of the criminal history information and records of Department determinations shall be performed in a manner that ensures the confidentiality of the information.
(d) Policies and procedures. Each provider subject to the provisions of this Part shall have policies and procedures designed to implement the provisions of this Part. Amendment of existing personnel policies and procedures to reflect these new requirements is sufficient compliance with this subdivision.
(a) In the event that funds are appropriated in any given fiscal year for reimbursement for the costs of obtaining criminal history information required by this Part, reimbursement shall be made available in an equitable and direct manner for the projected cost of the fee established pursuant to law by the Division for processing a criminal history information check, the fee imposed by the FBI for a national criminal history check, and costs associated with obtaining the fingerprints to all providers licensed, but not certified, under Article 36 of the Public Health Law, and all adult homes, enriched housing programs, and residences for adults licensed under Article 7 of the Social Services Law, including those that are subject to this Part and are unable to access direct reimbursement from state and/or federally funded health programs.
(b) Residential health care facilities licensed pursuant to Article 28 of the Public Health Law, certified home health care agencies and long-term home health care programs certified or approved pursuant to Article 36 of the Public Health Law, and hospice programs certified pursuant to Article 40 of the Public Health Law, may, subject to the availability of federal financial participation, claim as reimbursable costs under the medical assistance program, costs reflecting the fee established pursuant to law by the Division for processing a criminal history information check, the fee imposed by the FBI for a national criminal history check, and costs associated with obtaining the fingerprints, provided, however, that for the purposes of determining rates of payment pursuant to Article 28 of the Public Health Law for residential health care facilities, such reimbursable fees and costs shall be reflected as timely as practicable in such rates within the applicable rate period.
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