N.Y. Comp. Codes R. & Regs. tit. 18 § 452.11

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

Section 452.11 - Personnel

(a)Review of applicants/general.

(1) Each program must review and evaluate the background of all applicants for staff positions, whether employees or volunteers. All applicants whose backgrounds must be checked are required to provide the following:

(i) a statement or summary of the applicant's employment history, including, but not limited to, any domestic violence and/or human services experience;

(ii) a statement or summary of the applicant's educational background, including, but not limited to, any degrees, certifications and/or licenses.

(2) In addition, for prospective employees, volunteers and any individual who is to be hired as a consultant with the potential for regular and substantial contact with children who are in residence at the program, the program must obtain:

(i) the information necessary to determine whether the applicant is listed on the register of substantiated category one cases of abuse or neglect maintained by the Justice Center for the Protection of Persons with Special Needs (Justice Center), pursuant to section 495 of the Social Services Law, as required by subdivision (b) of this section;

(ii) the information necessary to determine whether the applicant is the subject of an indicated report of child abuse or maltreatment, as required by subdivision (c) of this section;

(iii) a sworn statement by the applicant indicating whether, to the best of the applicant's knowledge, such applicant has ever been convicted of a misdemeanor or felony in New York State or any other jurisdiction; and

(iv) written informed consent from the applicant, on a form acceptable to the Division of Criminal Justice Services (DCJS), to perform a criminal history check, along with the information necessary for the program to conduct such a check.

(3) For prospective employees of individuals, corporations, partnerships or associations, which provide goods or services to the program and who will have the potential for regular and substantial contact with children who are in residence at the program, the program must obtain:

(i) the information necessary to determine whether the applicant is listed on the register of substantiated category one cases of abuse or neglect maintained by the Justice Center, pursuant to section 495 of the Social Services Law, as required by subdivision (b) of this section; and

(ii) the information necessary to determine whether the applicant is the subject of an indicated report of child abuse or maltreatment as required by subdivision (c) of this section.

(4) The program may inquire whether any current employee who has regular and substantial contact with children who are in residence at the program is the subject of an indicated report of child abuse or maltreatment on file with the Statewide Central Register of Child Abuse and Maltreatment (SCR). An inquiry to the SCR regarding any current employee may be made only once in any six-month period.

(5) For purposes of applying the obligations created under section 495 of the Social Services Law to residential programs for victims of domestic violence, the term "regular and substantial contact with a service recipient" means the "potential for regular and substantial contact with children who are in residence at the program."

(b)Review of applicants/staff exclusion list.

(1) Programs are required to check prospective employees, volunteers, consultants, and contractors with the register of substantiated category one cases of abuse or neglect (staff exclusion list or SEL) maintained by the Justice Center pursuant to section 495 of the Social Services Law, before determining whether to hire or otherwise allow any person to have regular and substantial contact with children who are in residence at the program.

(i) If an applicant is listed on the SEL, the program shall determine whether to hire or allow such a person to have regular or substantial contact with children who are in residence at the program in accordance with the provisions of subdivision (5) of section 424-a of the Social Services Law and subdivision (d) of this section. Such a determination may only be made after receipt of the SCR check and criminal history record check.

(ii) If the result of the inquiry under section 495 of the Social Services Law leads to a decision to deny the application, the program shall not be required to conduct an SCR check under section 424-a of the Social Services Law.

(iii) If an applicant is not listed on the SEL, an SCR check must be completed in accordance with section 424-a of the Social Services Law and this section.

(c)Review of applicants/SCR check.

(1) The program must inquire of the office whether any person who is actively being considered as an employee, volunteer, consultant or contractor and will have the potential for regular and substantial contact with children who are in residence at the program is the subject of an indicated report of child abuse or maltreatment on file with the SCR.

(i) Prior to making an inquiry pursuant to this paragraph, the program must notify, in the form prescribed by the office, each person who will be the subject of an inquiry that the inquiry will be made to determine whether such person is the subject of an indicated report of child abuse or maltreatment on file with the SCR.

(ii) Applicant's contact with children pending SCR results.

(a) Except as set forth in clause (b) of this subparagraph, a program may not permit a prospective employee, volunteer, consultant or contractor to have contact with children in residence at the program prior to obtaining the result of the SCR check.

(b) A prospective employee, volunteer, consultant or contractor may have contact with children in residence at the facility prior to the receipt by the program of the result of the SCR check only where such person is in the line of sight of existing staff of the program. Such person must be in the line of sight of an existing staff member for whom:

(1) the result of an inquiry required by section 424-a of the Social Services Law has been received by the program and the program hired the existing staff member with knowledge of the result of the inquiry; or

(2) an inquiry was not made because such staff member was hired before July 19, 2017.

(iii) Fee for SCR check.

(a) The office shall charge a fee when it conducts a search of its records within the SCR to determine whether such applicant is the subject of an indicated report.

(b) The required fee must either accompany the inquiry form submitted to the office or, for an inquiry submitted by a social services district, the district may elect to have the fee subtracted from its claims for reimbursement submitted pursuant to section 601.1 of this Title.

(c) Fees must be paid to the New York State Office of Children and Family Services. For social services districts electing to have the fees subtracted from their claims for reimbursement submitted pursuant to section 601.1 of this Title, the fees will be subtracted quarterly to match the number of inquiries made.

(d) If an applicant, employee, consultant or volunteer about whom the program has made an inquiry is found to be the subject of an indicated report of child abuse or maltreatment or is listed on the SEL, the program must determine, on the basis of information it has available and in accordance with guidelines developed and disseminated by the office, whether to hire, retain or use the person as an employee, volunteer, consultant or permit the person providing goods or services to have access to children who are in residence at the program. Whenever such person is hired, retained, used or given access to children, the program must maintain a written record, as part of the application file or employment or other personnel record of such person, of the specific reason(s) why such person was determined to be appropriate and acceptable as an employee, volunteer, consultant or provider of goods and services with access to children being cared for by the program.

(e)Criminal history record check.

(1) Every residential program for victims of domestic violence is required by Social Services Law section 460-h to obtain criminal history background checks for prospective employees, assistants, volunteers and consultants who will have the potential for potential for regular and substantial contact with children in residence at the program through DCJS, in accordance with any applicable laws, regulations, policies and procedures. The individual who is subject to the criminal history background check must be informed, in writing, that the program is required to request a check of his or her criminal history information and assess the results of the check in accordance with section 460-h of the Social Services Law. The program must identify an authorized person who is designated by the program to request, receive and check criminal history information in accordance with this Part.

(i) Upon receipt of complete information from the residential program for victims of domestic violence, including fingerprints and applicable fees, in the form and manner prescribed by DCJS, DCJS shall provide the criminal history information to an authorized person for any person applying to be an employee, assistant, volunteer or consultant who will have the potential for regular and substantial contact with children in residence at the program. This information shall only be retained during the duration of the application process. Thereafter, it must be destroyed in accordance with guidance from DCJS.

(ii) If an applicant has been convicted of a crime, the program must make a written safety assessment, in accordance with paragraph (2) of this subdivision and guidelines developed and disseminated by the Office, to determine whether to hire or use the person as an employee, volunteer or consultant. If the program determines it will hire or use the person, the program must maintain a written record, as part of the application file or employment or other personnel record of such person, of the reason(s) why such person was determined to be appropriate and acceptable as an employee volunteer or consultant.

(iii) Only the authorized person or his or her designee and the relevant person applying to be an employee, volunteer or consultant shall have access to the New York State criminal history information received by a program. Criminal history information may be disclosed by the authorized person to other individuals who are directly participating in any decision regarding the employee, volunteer or consultant's application.

(iv) The authorized person and any other individual to whom such criminal history is disclosed shall keep this information strictly confidential, in accordance with the requirements of DCJS and any applicable laws, regulations, policies and procedures.

(v) Any party who willfully permits the disclosure of any confidential criminal history information obtained from a criminal history information check pursuant to this section to parties not authorized to receive same shall be guilty of a misdemeanor.

(2) In accordance with article 23-A of the Corrections Law and subdivisions (15) and (16) of section 296 of the Executive Law, a written safety assessment performed in accordance with this section shall include, but not be limited to, the following factors:

(i) the public policy of the state to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(ii) the specific duties and responsibilities of the employment sought by the applicant;

(iii) the bearing, if any, the criminal offense will have on the fitness or ability to perform one or more such duties or responsibilities;

(iv) the time which has elapsed since the occurrence of the criminal offense or offenses;

(v) the age of the person at the time of the occurrence of the criminal conviction or charge;

(vi) the seriousness of the offense or offenses;

(vii) any information provided by the applicant or produced on his/her behalf regarding rehabilitation or good conduct; and

(viii) the legitimate interest in protecting property and the safety and welfare of children.

(3) Prior to making a determination to deny an employment or volunteer application or the use of an assistant or consultant, the program shall afford the applicant an opportunity to explain, in writing, why the application should not be denied, within 15 calendar days from the date the notification was mailed. The prospective employee, volunteer, assistant or consultant may request an extension of up to 15 days. The opportunity for an explanation shall be sent non-electronically, in a manner of mailing that can verify the date of mailing and shall include a copy of the subject individual's criminal history information, a copy of article 23-A of the Correction Law, and information about the individual's right to seek correction of any incorrect information contained in the criminal history and the procedure for same.

(4) Upon receipt of a criminal history record, the program may request, and is entitled to receive, in accordance to subdivision six of section 460-h of Social Services Law, information pertaining to any crime contained in such criminal history record from any state or local law enforcement program, district attorney, parole officer, probation officer, or court for the purposes of determining whether any ground relating to such criminal conviction or pending criminal charge exists for denying an application for employment or volunteer opportunity or the use of a consultant. Where the criminal history record reveals a pending charge for any felony, the program shall hold the application in abeyance until the charge is finally resolved.

(f)Personnel policies and practices.

(1) Each program must provide a sufficient number of competent compensated employees and/or volunteers necessary to supervise, operate and maintain the premises in a safe and sanitary condition, and deliver program services to residents. There must be an employee responsible for supervising any volunteers.

(2) Programs must develop a plan to recruit compensated employees and/or volunteers who are representative of the cultural values and ethnic composition of the community being served. This includes the recruitment of bilingual employees and/or volunteers when the program is in an area serving a significant non-English speaking population. Bilingual employees and/or volunteers must speak the language of the community being served.

(3) There must be written job descriptions developed for each compensated employee/volunteer position. Each job description must include the title of the job, a statement of duties and responsibilities, skills needed and any special physical requirements of the job. The description must additionally specify the educational and experiential qualifications required of any applicant for the job. All compensated employees or volunteers must possess the necessary skills and training required for the job.

(4) There must be written personnel policies which include a nondiscrimination clause, and which describe the terms and conditions of employment including hours of work, salary, vacation and sick leave, benefits, overtime policy, and any requirements regarding attendance at educational and training programs.

(5) Complete records must be maintained. Records must be current, accurate and available to the office. Records must include the following information regarding each paid employee:

(i) name, age, social security number, current home address, telephone number, and person to contact in an emergency;

(ii) names and addresses of educational institutions attended, dates of graduation, degrees or certificates conferred and information regarding any training received which will be used as a substitute for education and/or work experience with respect to the hiring of such employee;

(iii) all professional experience and previous employment, with name and location of employer, dates of employment and reasons for terminating employment;

(iv) information relating to the SCR and SEL checks required by this section;

(v) payroll and time records; and

(vi) where relevant, New York or other state licensure or registration number, year of original issuance and expiration date.

(6) Complete records must be maintained for volunteers. Such records must be current, accurate and available to the department. Records must include the following:

(i) the volunteer's name, age, social security number, address, telephone number and person to contact in an emergency;

(ii) the volunteer's applicable skills, experience and job qualifications;

(iii) the volunteer's work responsibilities and scheduled work hours;

(iv) the name of the volunteer's supervisor and records of supervisory conferences;

(v) information relating to the SCR and SEL checks required by this section; and

(vi) any relevant New York or other state licensure or registration number, year of original issuance and expiration date.

(7) Recordkeeping regarding criminal history checks.

(i) programs must retain a list of names of all persons for whom a request for a criminal history information check was submitted to DCJS, identifying whether the person was applying for an employment, consultant, assistant or volunteer position;

(ii) for each such name identified, except for withdrawing persons, a copy of his or her signed informed consent form required pursuant to subdivision 452.11(a) of this Part, and any fingerprints and criminal history information, where authorized by DCJS, and determination of the program regarding the person applying for an employment, consultant, assistant or volunteer position;

(iii) a record identifying whether such individual was hired, contracted with or permitted to engage in volunteer services, the position such individual holds, and any limitations placed on such employment or service;

(iv) such records shall be maintained, where authorized, in a manner that ensures the security of the information contained therein. Nothing herein shall restrict the ability of the office to monitor compliance with this Part;

(v) each program must maintain information necessary to demonstrate compliance with this Part for at least six years after the person ceases to be an employee, volunteer or consultant in a position that involves regular and substantial contact with children, unless otherwise directed by the office.

(8) If directed by the office or DCJS, a program shall destroy the criminal history information and/or any other information related to criminal background checks in accordance with such direction.

(9) Destruction of criminal history information and program determinations shall be performed in a manner that ensures the confidentiality of the information.

(10) If a subject withdraws from the application process, without prejudice, at any time regardless of whether he or she or the program has reviewed his or her criminal history information, upon such withdrawal from the application process, any fingerprints and criminal history information received by the program shall be returned to the withdrawing applicant.

(11) Each program shall have policies and procedures designed to implement the provisions of this Part.

(12) Compensated employees and volunteers must possess suitable qualifications to carry out their respective functions in the administration, operation and maintenance of the residential program for victims of domestic violence.

(i) No individual may report to the program to work or volunteer impaired due to the use of alcohol, narcotics or other illegal drugs.

(ii) No individual may report to the program to work or volunteer while in possession of alcohol and/or illegal drugs.

(iii) When a compensated employee or a volunteer contracts a communicable disease, as defined in section 452.9(a)(2)(iii) of this Part, which can easily be transmitted to others under normal communal living conditions, the program must take timely and adequate measures to prevent exposure of other compensated employees, volunteers and residents to such disease.

(13) Staffing.

(i) Each residential program for victims of domestic violence must employ a qualified director who meets the qualifications set forth in section 452.11(g) of this Part to perform supervisory functions of the program.

(ii) The director must designate and identify a sufficient number of qualified compensated employees and/or volunteers who will be responsible for directly providing the emergency core services set forth in section 452.12 of this Part, as w ell as compensated employees and/or volunteers for meal preparation when meals are provided onsite. The director may be designated to perform these functions in lieu of a qualified compensated employee or volunteer.

(g)Qualifications.

	Experience		Education/Training
Person responsible for program supervisory functions (Director)	Four years of relevant work experience, one year of which must include supervisory experience. Relevant work experience includes paid or volunteer work experience with victims of domestic violence and/or the direct provision of human services.
		OR
	Two years of relevant work experience, one year of which must include supervisory experience. Relevant work experience includes paid or volunteer work experience with victims of domestic violence and/or the direct provision of human services.	AND	Two years of college in a related course of study
Persons designated to provide one or more of the emergency services (including hotline employees or volunteers)	One year of relevant work experience which includes paid or volunteer work experience with victims of domestic violence and/or the direct provision of human services.	OR	Six hours of training provided by the agency prior to assuming the responsibilities of the position in topics specified by (h)(2) of this subsection may be substituted for one year of experience.
Persons designated to provide Children's Services	One year of relevant work experience which includes paid or volunteer work experience with children	OR	Educational background or training in child development
Persons providing transportation			Must have a valid driver's license

(h)Training.

(1) Prior to assuming any responsibilities as an employee or volunteer at a residential program for victims of domestic violence, all staff must be provided with a written copy of their job description and must receive an orientation to the services provided by the program, which must include confidentiality issues, child abuse reporting requirements, policies and procedures, and job responsibilities.

(2) A written training plan must be developed for compensated employees or volunteers involved in the direct provision of emergency services.

(i) This plan must include a description of the content of the orientation as described in this subdivision and address how compensated employees or volunteers will receive on-going training.

(ii) Effective April 20, 2020, the plan must include training in adverse childhood experiences, also known as ACEs.

(iii) The plan may include and need not be limited to training in the following topics:

(a) dynamics of domestic violence, including an understanding of the ongoing patterned use of intimidation, coercion, and violence to establish and maintain dominance over an intimate partner; and an understanding of coercive control tactics which can include physical, psychological, sexual economic and/or emotional abuse;

(b) child abuse reporting requirements, including identification and prevention of child abuse and maltreatment, how to make a report to the state central register, reporting protocols, and what information can be provided during investigations;

(c) statutes and regulations pertaining to residential programs for victims of domestic violence;

(d) confidentiality issues, which includes the protection of personally identifying information of victims of domestic violence; protection of the residential facility's physical address; protection of the identity of victims of domestic violence;

(e) legal remedies, including providing an understanding of the legal rights and options available to victims of domestic violence. Legal remedies do not mean providing legal advice and/or representation by someone other than an attorney;

(f) community resources and services, including community and/or government resources that can help victims of domestic violence meet their basic needs. Basic needs include and are not limited to: food, health, and housing. Services may include and are not limited to: transportation, employment, housing, health care, mental health care, alcohol/substance abuse, education needs and social services;

(g) organizational policy which includes: reviewing the organization's policies/personnel manual, time and attendance, job descriptions, safety and security, confidentiality, data systems, grievance protocols, etc.;

(h) substance use, including and not limited to, understanding the needs of individuals struggling with substance use; how and when to seek emergency medical services for overdoses; and information regarding options available to residents who request information and/or referral for substance abuse treatment;

(i) mental health, including and not limited to, an understanding of the impact of trauma to the health of domestic violence victims and their children; understanding the needs of individuals with developmental disabilities and/or mental health conditions; and how to assist residents who request professional mental health services with access to those services;

(j) diversity and inclusion which includes: understanding how culture, ethnicity, religion, sexuality and/or gender identity/expression can influence/impact domestic violence victims; how to provide services to victims in a respectful manner as to increase the quality of services and provide better outcomes.

(3) All compensated employees or volunteers providing direct provision of emergency services must have an individualized development plan that identifies trainings completed and future training topics the individual may need to increase their knowledge and/or skills needed to carry out their duties. The agency may exempt any person from participating in a particular topic upon demonstration of substantially equivalent knowledge or experience to that topic.

(4) The program must maintain verification of completion of training requirements and provide such verification to the Office upon request.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 452.11

Adopted New York State Register November 1, 2017 /Volume XXXIX, Issue 44, eff. 10/18/2017

Adopted New York State Register April 1, 2020/Volume XLII, Issue 13, eff.4/1/2020