N.Y. Comp. Codes R. & Regs. tit. 14 § 701.5

Current through Register Vol. 46, No. 50, December 11, 2024

Section 701.5 - Requests for criminal history information checks

(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.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 701.5

Amended New York State Register August 29, 2018/Volume XL, Issue 35, eff.8/29/2018