NY Pub Health L § 2899-A (2021)
2021 New York Laws PBH - Public Health Article 28-E - Review of Criminal History Information Concerning Prospective Employees of Nursing Homes and Home Care Services Agencies 2899-A - Requests for Criminal History Information Concerning Prospective Employees.

§   2899-a.  Requests  for  criminal  history  information  concerning prospective employees. 1. A provider shall request that  the  department check,  and  upon  such request the department shall check its permanent record according to this section for a determination  on  a  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  concerning the prospective employee from the division  of  criminal  justice  services  in  accordance  with  the provisions  of  section eight hundred forty-five-b of the executive law. Access to and the use of such  information  shall  be  governed  by  the provisions of such section. The division of criminal justice services is authorized to submit fingerprints to the federal bureau of investigation for a national criminal history record check.   2.  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  approvals  allowed  under subdivision   eleven  of  section  eight  hundred  forty-five-b  of  the executive law and subdivision ten of this section.   3. No person who has been fingerprinted pursuant to this  article  and whose  fingerprints remain on file with the division of criminal justice services shall be required to undergo fingerprinting for purposes  of  a new state check required by this article.   4.  The  commissioner  shall  promulgate  all  rules  and  regulations necessary to implement the  provisions  of  this  article,  which  shall include  convenient  procedures  for  prospective  employees to promptly verify the accuracy of their criminal history information  and,  to  the extent  authorized  by law, to have access to relevant documents related thereto.   5. Nothing in this article shall be construed or interpreted to in any way diminish  the  integrity  of  any  collective  bargaining  agreement negotiated  on  or  before  April  first,  two  thousand five between an employer and any certified or authorized collective bargaining agent for employees, or to diminish rights which accrue to such employees pursuant to such agreements.   6. The department may accept digital fingerprint images or  any  other acceptable   technological   devices  used  to  obtain  and/or  transmit fingerprint images for the purposes of this article, as provided for  in the  rules  and  regulations  created  by  the  commissioner pursuant to subdivision four of this section. To  the  extent  funds  are  available therefor,  grants  to  assist  and facilitate the purchase of technology shall be made available  to  providers  who  demonstrate  the  need  for financial assistance as determined by the department.   7.  The  department promptly shall make all determinations and actions required by subdivision five of section eight  hundred  forty-five-b  of the  executive  law upon receipt of the information from the division of criminal justice services  and  the  federal  bureau  of  investigation, provided  that  when  rendering  a  determination  to  propose denial of employment eligibility, the department shall provide the individual  who is  the subject of the criminal history information check with a copy of such criminal history information and a copy of  article  twenty-three-A of  the correction law and inform such individual of his or her right to seek correction of any incorrect information contained in such  criminal history   information   pursuant   to  the  regulations  and  procedures established by the division of criminal justice services. The department shall create a permanent record, update the  information  in  accordance with  section  eight  hundred forty-five-b of the executive law and make  only records or information  received  from  the  division  of  criminal justice services available to providers pursuant to this section.   8.   The   department   shall   allow  all  providers  access  to  any determination made upon a prospective employee  at  such  time  as  such prospective  employee  presents  himself or herself to such provider for employment. In the event that the prospective employee has  a  permanent record  already  on  file with the department, this information promptly shall be made available  to  the  provider  who  intends  to  hire  such prospective employee.   9.  * (a) In the event that funds are appropriated in any given fiscal year for the reimbursement for the  costs  of  providing  such  criminal history  information,  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 of criminal justice services for  processing a criminal history information check, the fee imposed by the federal bureau of investigation  for  a  national  criminal  history check,  and  costs  associated  with  obtaining  the fingerprints to all providers licensed, but not certified under article thirty-six  of  this chapter,  providers  certified  under article forty of this chapter, and all adult care facilities licensed under article  seven  of  the  social services  law,  including those that are subject to this article and are unable to access direct reimbursement from state and/or  federal  funded health programs.   * NB Effective until March 31, 2023   * (a)  In  the  event  that funds are appropriated in any given fiscal year for the reimbursement for the  costs  of  providing  such  criminal history  information,  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 of criminal justice services for  processing a criminal history information check, the fee imposed by the federal bureau of investigation  for  a  national  criminal  history check,  and  costs  associated  with  obtaining  the fingerprints to all providers licensed, but not certified under article thirty-six  of  this chapter,  and  all adult care facilities licensed under article seven of the social services law,  including  those  that  are  subject  to  this article  and are unable to access direct reimbursement from state and/or federal funded health programs.   * NB Effective March 31, 2023  (b) Residential health care facilities licensed  pursuant  to  article twenty-eight of this chapter and certified home health care agencies and long-term  home  health  care programs certified or approved pursuant to article  thirty-six  of  this  chapter  or  a  health   home,   or   any subcontractor  of such health home, who contracts with or is approved or otherwise authorized by the department to provide health home  services, including enrollees who are under twenty-one years of age, under section three  hundred  sixty-five-l  of  the  social services law, except for a health home, or any subcontractor of such  health  home,  who  contracts with or is approved or otherwise authorized by the department to provide health  home services to all those enrolled pursuant to a diagnosis of a developmental disability as defined in subdivision twenty-two of section 1.03 of the mental hygiene law; or any entity  that  provides  home  and community  based services to enrollees who are under twenty-one years of age under a demonstration program pursuant  to  section  eleven  hundred fifteen  of  the  federal  social  security  act,  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 of criminal justice services for processing a criminal history information check, the fee imposed  by  the  federal  bureau  of  investigation  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  twenty-eight  of  this  chapter 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.   10.  Notwithstanding  subdivision  eleven  of  section  eight  hundred forty-five-b of the executive  law,  a  certified  home  health  agency, licensed home care services agency or long term home health care program certified, licensed or approved under article thirty-six of this chapter or  a  home  care services agency exempt from certification or licensure under article thirty-six  of  this  chapter,  a  hospice  program  under article  forty  of  this  chapter,  or  an  adult home, enriched housing program or residence for adults licensed  under  article  seven  of  the social  services  law,  or  a  health home, or any subcontractor of such health home, who contracts with or is approved or  otherwise  authorized by  the  department to provide health home services, including enrollees who are under twenty-one years  of  age,  under  section  three  hundred sixty-five-l  of  the  social services law, except for a health home, or any subcontractor of such health home, who contracts with or is approved or otherwise  authorized  by  the  department  to  provide  health  home services   to   all   those  enrolled  pursuant  to  a  diagnosis  of  a developmental disability as defined in subdivision twenty-two of section 1.03 of the mental hygiene law; or any entity  that  provides  home  and community  based services to enrollees who are under twenty-one years of age under a demonstration program pursuant  to  section  eleven  hundred fifteen  of  the  federal  social security act may temporarily approve a prospective  employee  while  the  results  of  the   criminal   history information  check and the determination are pending, upon the condition that the provider conducts appropriate direct observation and evaluation of the temporary employee, while he or she is temporarily employed,  and the  care  recipient;  provided, however, that for a health home, or any subcontractor of a health home, who contracts with  or  is  approved  or otherwise  authorized by the department to provide health home services, including enrollees who are under twenty-one years of age, under section three hundred sixty-five-l of the social  services  law,  except  for  a health  home,  or  any  subcontractor of such health home, who contracts with or is approved or otherwise authorized by the department to provide health home services to all those enrolled pursuant to a diagnosis of  a developmental disability as defined in subdivision twenty-two of section 1.03  of  the  mental  hygiene law; or any entity that provides home and community based services to enrollees who are under twenty-one years  of age  under  a  demonstration  program pursuant to section eleven hundred fifteen of the federal  social  security  act,  direct  observation  and evaluation  of  temporary  employees  shall  not  be required until July first, two thousand nineteen. The results of such observations shall  be documented  in  the  temporary  employee's  personnel  file and shall be maintained.  For  purposes  of   providing   such   appropriate   direct observation  and  evaluation,  the  provider shall utilize an individual employed by such provider  with  a  minimum  of  one  year's  experience working  in  an  agency  certified,  licensed  or approved under article thirty-six of this chapter or an adult home, enriched housing program or residence for adults licensed under article seven of the social services law, a health home, or  any  subcontractor  of  such  health  home,  who contracts  with or is approved or otherwise authorized by the department to provide health home  services,  including  enrollees  who  are  under twenty-one years of age, under section three hundred sixty-five-l of the social  services  law, except for a health home, or any subcontractor of  such health home,  who  contracts  with  or  is  approved  or  otherwise authorized  by  the  department  to  provide health home services to all those enrolled pursuant to a diagnosis of a developmental disability  as defined  in subdivision twenty-two of section 1.03 of the mental hygiene law; or any entity that provides home and community  based  services  to enrollees  who  are  under twenty-one years of age under a demonstration program pursuant to section eleven hundred fifteen of the federal social security act. If the temporary employee is working under  contract  with another   provider   certified,   licensed  or  approved  under  article thirty-six of this chapter, such contract provider's appropriate  direct observation   and   evaluation  of  the  temporary  employee,  shall  be considered  sufficient  for  the  purposes  of   complying   with   this subdivision.   11.  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 fee or any facility  costs  associated  with obtaining  the  criminal  history  information  check  required  by this article.   12. This article shall be deemed to supersede and apply in lieu of any local laws or laws of any political subdivision  of  the  state  or  any regulations  of the department requiring a criminal history record check to the extent provided for in this article.