N.Y. Comp. Codes R. & Regs. tit. 14 § 701.6

Current through Register Vol. 46, No. 25, June 18, 2024

Section 701.6 - Criminal history review and evaluation

(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.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 701.6

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