N.Y. Comp. Codes R. & Regs. tit. 14 § 633.24

Current through Register Vol. 46, No. 45, November 2, 2024

Section 633.24 - Background checks (in addition to criminal history record checks)

(a)Applicability.

This section applies to services which are certified, operated, authorized, approved and/or funded by OPWDD (including family care homes).

(b) Check of the register of substantiated category one cases of abuse or neglect, also known as the Staff Exclusion List (SEL).

(1) Agencies and sponsoring agencies shall request a check for all parties subject to a criminal history record check in accordance with section 633.22 of this Part, to the extent permitted by section 495 of the Social Services Law. The term subject party has the same meaning in this section as the term is defined in section 633.22(b) of this Part.

(2) Agencies (including agencies) shall comply with the requirements in section 495 of the Social Services Law and procedures established by the Justice Center for the Protection of People with Special Needs (Justice Center) for checking the SEL.

(3) If the name of subject party has been submitted for a check of the SEL, the agency shall not allow the party to have regular and substantial contact with an individual receiving services until the agency has the results of the check.

(4) If a party is listed on the SEL, the agency or sponsoring agency shall not hire or otherwise allow such party to have regular and substantial contact with an individual receiving services.

(5) The agency or sponsoring agency shall comply with all requirements of the Justice Center regarding confidentiality and actions to be taken concerning the results of the SEL check.

(6) Registered providers (see section 633.22[n] of this Part) shall request an SEL check for subject parties if the registered provider was required to request a criminal history record check for that party. Agencies with which the registered providers contracts are not required to request an SEL check concerning subject parties of a registered provider with which it contracts.

(c)Statewide central register of child abuse and maltreatment (SCR).

(1) Agencies shall request a check of the Statewide Central Register of Child Abuse and Maltreatment (SCR) for all parties subject to a criminal history record check in accordance with section 633.22 of this Part, to the extent permitted by section 424-a of the Social Services Law. SCR checks are required for all applicants (e.g., prospective employees, volunteers, and contractors) who are required or authorized to be checked pursuant to section 424-a of the Social Services Law. (Note that SCR checks are not required for current employees, volunteers, etc. but in some cases are permitted by section 424-a of the Social Services Law.) SCR checks are also required for family care providers and adults who live in the home of the family care provider in accordance with requirements in Part 687 of this Title.

(2) Agencies shall comply with the provisions of section 424-a of the Social Services Law concerning checks which are required or authorized to be conducted.

(3) The SCR check shall be conducted after the agency obtains the results of the SEL check and shall only be requested if the agency does not deny the application based on the results of the SEL check.

(4) If the name of a subject party has been submitted for a check of the SCR, the agency shall not allow the party to have unsupervised contact with individuals receiving services until the agency has the results of the SCR check.

(5) The agency shall comply with the requirements of Article 6 of the Social Services Law and the Office for Children and Family Services (OCFS) concerning confidentiality and actions to be taken with regard to the results of the SCR check.

(6) Requirements concerning SCR checks for subject parties of registered providers.

(i) OPWDD will submit requests for SCR checks for subject parties of registered providers.

(ii) SCR checks are required for subject parties if the registered provider was required to request a criminal history record check for that party.

(iii) Registered providers shall submit information to OPWDD in the form and format specified by OPWDD as is necessary for OPWDD to request the SCR check.

(iv) Prior to the submission of information to OPWDD, the registered provider shall obtain written consent from the subject party that permits the release of information to the registered provider pertaining to any indicated reports that may exist concerning the subject party. The subject party must also sign an acknowledgement in the form and format specified by OPWDD.

(v) OPWDD will request the SCR check and will provide information it obtains as a result of the SCR check to the registered provider.

(vi) In the event that an indicated report exists concerning the subject party, the registered provider shall obtain information about the indicated report sufficient to enable the registered provider make a suitability determination concerning the subject party pursuant to subparagraph (vii) of this paragraph.

(vii) In the event that an indicated report exists concerning the subject party, the registered provider is required to review the information and to make a decision about whether to hire or otherwise allow the party to have regular and substantial contact with individuals receiving services.

(viii) Any information received by the registered provider as a result of the SCR check shall be kept confidential in the same manner as information provided as a result of the criminal history record check, as set forth in section 845-b(7) of the Executive Law.

(ix) If the name of a subject party has been submitted for a check of the SCR, the subject party shall not be allowed to have unsupervised contact with individuals receiving services in the OPWDD system until the registered provider has the results of the SCR check.

(d)MHL 16.34 check.

(1) Agencies shall submit a request for an MHL 16.34 check to OPWDD in accordance with section 16.34 of the Mental Hygiene Law, to the extent permitted by section 16.34 of the Mental Hygiene Law.

(2) Agencies shall submit the request for an MHL 16.34 check in the form and format specified by OPWDD, including information from the applicant as specified by OPWDD.

(3) The MHL 16.34 check shall be submitted to OPWDD after the agency obtains the results of the SEL check and shall only be requested if the agency does not deny the application based on the results of the SEL check.

(4) If the name of a subject party has been submitted for an MHL 16.34 check, the agency shall not allow the party to have unsupervised contact with individuals receiving services until the agency has the results of the check.

(5) The agency shall comply with the requirements of section 496 of the Social Services Law and other applicable laws and regulations concerning confidentiality.

(6) Registered providers (see section 633.22[n] of this Part) shall request an MHL 16.34 check for subject parties if the registered provider was required to request a criminal history record check for that party. Agencies with which the registered provider contracts are not required to request an MHL 16.34 check concerning subject parties of a registered provider with which it contracts.

(e)Information about substantiated reports of abuse or neglect.

(1) The authorized party of an agency or registered provider may receive information about a substantiated reports of abuse or neglect concerning a subject party as a result of a background check. This information may either:

(i) be provided by the Justice Center about category two conduct in accordance with section 562 of the Executive Law; or

(ii) be provided by OPWDD about substantiated reports of abuse or neglect occurring before June 30, 2013 in accordance with section 16.34 of the Mental Hygiene Law.

(2) In the event that such information is provided, the agency or registered provider is required to review the information provided and to make a decision about whether to hire or otherwise allow the party to have regular and substantial contact with an individual receiving services. Such decision and the rationale for the decision shall be documented.

(3) Any information provided shall be subject to the confidentiality provisions of section 845-b(7) of the Executive Law and section 496 of the Social Services Law.

(f) Requests for information about substantiated reports of abuse or serious neglect. In the event that an agency receives a request from OPWDD to conduct a reasonably diligent search of its records and/or provide specific information and/or develop a summary report for substantiated reports of abuse or serious neglect in accordance with the provisions of section 16.34 of the Mental Hygiene Law, the agency shall comply with such request. The information shall be provided to OPWDD in the form and format specified by OPWDD within the timeframes specified in the request.

(g)Records retention.

(1) Agencies and registered providers shall maintain the following records related to background checks:

(i) all background check requests submitted in accordance with this section;

(ii) all information received as a result of such checks (including information received pursuant to section 562 of the Executive Law), including additional information obtained about SCR indicated reports; and

(iii) documentation of any decisions made by the agency or registered provider because of information provided as a result of such checks and the rationale for the decisions.

(2) Agencies and registered providers shall maintain such information and shall not dispose of such information prior to six years after the party ceases to be a subject party (e.g., is no longer an employee, volunteer or family care provider), unless otherwise directed to do so by OPWDD.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.24

Adopted New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff.12/2/2015

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016