NY Exec L § 845-B (2021)
2021 New York Laws EXC - Executive Article 35 - Division of Criminal Justice Services 845-B - Requests for Criminal History Information.

§ 845-b. Requests for criminal history information. 1. Definitions. As used in this section:  (a)  "Authorized  agency"  means  a  state  agency authorized to check criminal  history  information  pursuant  to  subdivision  two  of  this section.  (b)  "Authorized  person"  means  the  one  individual designated by a provider who is authorized  to  request,  receive  and  review  criminal history  information  pursuant  to  this  section, except that where the number of applications received by a  provider  is  so  great  that  one person cannot reasonably perform the functions of the authorized person, a  provider  may  designate  one  or more additional persons to serve as authorized persons pursuant to this section.  (c) "Criminal history information" means a record of pending  criminal charges,  criminal  convictions  which  are not vacated or reversed, and certificates filed pursuant to subdivision two of section seven  hundred five  of  the  correction  law,  and which the division is authorized to maintain  pursuant  to  subdivision  six  of   section   eight   hundred thirty-seven  of  this  article.  For  the  purposes of criminal history information checks authorized pursuant to article twenty-eight-E of  the public  health  law,  criminal  history  information  shall also include information from the federal bureau of investigation as a  result  of  a national criminal history record check.  (d)  "Subject  individual"  means  a  person  for  whom  a provider is authorized to request a check of criminal history  information  pursuant to subdivision two of this section.  (e)  "Provider" means a person or entity authorized to request a check of criminal history information pursuant  to  subdivision  two  of  this section.   2.  Where  a  provider is authorized or required to request a check of criminal history information by an authorized agency pursuant to section 16.33 or 31.35 of the mental hygiene law, article twenty-eight-E of  the public   health   law  or  subdivision  one  of  section  three  hundred seventy-eight-a of the social services law, such provider shall  proceed pursuant  to  the  provisions of this section and in a manner consistent with the provisions of article twenty-three-A  of  the  correction  law, subdivisions  fifteen  and  sixteen of section two hundred ninety-six of this chapter and all other applicable laws.   3. Procedures for  criminal  history  information  check  requests  by providers.  (a)  A  provider  authorized  to request a check of criminal history information pursuant to subdivision two of  this  section  shall designate  one  authorized  person who shall request a check of criminal history information on behalf of such provider pursuant to this  section and review the results of such check. Only such authorized person or his or her designee and the subject individual to whom such criminal history information  relates  shall  have  access to such information; provided, however, that criminal history information received by a provider may be disclosed to  other  persons  who  are  directly  participating  in  any decision  in  regard  to such subject individual; and provided, further, that such other persons shall also be  subject  to  the  confidentiality requirements  and  all  other provisions of this section. In the case of requests made pursuant to article twenty-eight-E of  the  public  health law, only information authorized for disclosure under applicable federal laws   shall  be  transmitted  to  the  provider.  Each  provider  shall specifically identify to the authorized agency in writing, in advance of disclosure, the authorized person and each other such agent or  employee of  the  provider  who  is authorized to have access to the results of a check of criminal history information  pursuant  to  this  section.  Any person  who  willfully  permits the release of any confidential criminal  history information contained in the report to persons not permitted  by this   section  to  receive  such  information  shall  be  guilty  of  a misdemeanor.  (b)  A  provider  requesting  a  check of criminal history information pursuant to this section shall do so by completing  a  form  established for  such  purpose  by  the  authorized  agency in consultation with the division. Such form shall include a sworn statement  of  the  authorized person certifying that:  (i)  the  person  for  whose  criminal  history information a check is requested is a subject individual for whom criminal history  information is available by law;  (ii) the specific duties which qualify the provider to request a check of criminal history information;  (iii)  the  results of such criminal history information check will be used by the provider solely for purposes authorized by law; and  (iv) the provider and its agents and employees are aware of  and  will abide  by  the  confidentiality requirements and all other provisions of this article.  (c) A provider authorized to request a  criminal  history  information check  pursuant  to  this section may inquire of a subject individual in the manner authorized by subdivision  sixteen  of  section  two  hundred ninety-six  of  this  chapter.  Prior  to requesting such information, a provider shall:  (i) inform the subject individual in  writing  that  the  provider  is authorized  or,  where applicable, required to request a check of his or her criminal history information and review the results  of  such  check pursuant to this section;  (ii)  inform  the  subject  individual that he or she has the right to obtain, review and seek  correction  of  his  or  her  criminal  history information   under   regulations  and  procedures  established  by  the division;  (iii) obtain the signed, informed consent of the subject individual on a form supplied by the  authorized  agency  which  indicates  that  such person has:   A.  been  informed  of  the  right and procedures necessary to obtain, review and seek correction of his or her criminal history information;   B. been informed of the reason for the request for his or her criminal history information;   C. consented to such request for a report; and   D. supplied on the form a current mailing or home address.   Upon receiving such written consent, the  provider  shall  receive  or obtain  two  sets of fingerprints of such subject individual pursuant to such regulations as may be necessary to be established by the authorized agency in consultation with the division, and promptly transmit them  to the authorized agency.  (d)  A  subject  individual  may  withdraw  his or her application for employment pursuant to this section,  without  prejudice,  at  any  time before  employment  is  offered  or  declined, regardless of whether the subject individual or provider has reviewed  such  subject  individual's criminal history information.   4.  Procedures  for  criminal history information checks by authorized agencies. (a) The authorized agency shall pay the processing fee imposed pursuant to subdivision eight-a of section eight hundred thirty-seven of this article, and in the case  of  the  authorized  agency  pursuant  to article  twenty-eight-E of the public health law, any fee imposed by the federal  bureau  of  investigation,  and  shall  promptly   submit   the fingerprints  and the processing fee to the division for its full search and retain processing, and in the case of the authorized agency pursuant  to article twenty-eight-E of the public health law, the  division  shall immediately   forward   the   fingerprints  to  the  federal  bureau  of investigation  for  a  national  criminal  history  record  check.   The authorized  agency may charge a provider a fee in amount no greater than the fee established pursuant to law by the division for processing  such a  criminal  history  information  check,  in  such  amounts  as  may be established by the authorized agency and approved by the director of the division of the budget,  and  in  the  case  of  the  authorized  agency pursuant  to  article  twenty-eight-E of the public health law, a fee no greater than any fee imposed by the  federal  bureau  of  investigation. Nothing in this section shall prohibit the authorized agency or provider from  claiming  the  cost  of  such  fees  and  related costs, including administrative  costs,  as  a  reimbursable  cost  under   the   medical assistance  program, Medicare or other payor, to the extent permitted by state and federal law.  (b) The division  shall  promptly  provide  requested  state  criminal history  information  to  the  authorized agency and, in accordance with article twenty-eight-E of the  public  health  law,  the  department  of health  is  authorized also to receive criminal history information from the federal bureau of investigation, after  the  receipt  of  a  request pursuant to this section if such request is:  (i)  made pursuant to a request by an authorized person on behalf of a provider authorized to make such a request pursuant to  subdivision  two of this section;  (ii) accompanied by the completed form described in this section; and  (iii)  accompanied  by fingerprints of the subject individual obtained pursuant to this section.  (b-1) The division  shall  promptly  forward  a  set  of  the  subject individual's fingerprints to the federal bureau of investigation for the purpose  of  a  nationwide  criminal  history  record check to determine whether such applicant has been convicted of a criminal offense  in  any state or federal jurisdiction. The division shall forward the results of such  nationwide  search  to  the authorized agency in the same form and manner as the criminal  history  report  created  and  provided  by  the division pursuant to this section.  (c)  Criminal history information provided by the division pursuant to this section shall be furnished only by mail or other method  of  secure and  confidential  delivery,  addressed  to  the authorized agency. Such information and the envelope in which it is enclosed, if any,  shall  be prominently  marked "confidential", and shall at all times be maintained by the authorized agency in a secure place.   5. After reviewing any criminal history information  provided  by  the division  concerning  a  subject individual, the authorized agency shall take the following actions:  (a) Where  the  criminal  history  information  concerning  a  subject individual  reveals a felony conviction at any time for a sex offense, a felony conviction within the past ten years  involving  violence,  or  a conviction  pursuant  to section 260.00, 260.25, 260.32 or 260.34 of the penal law, and in the case  of  criminal  history  information  obtained pursuant  to  section  twenty-eight  hundred ninety-nine-a of the public health law, where the criminal history information concerning a  subject individual  reveals  a  conviction  at any time of any class A felony; a conviction within the past ten years of any class B  or  C  felony,  any class  D  or E felony defined in article one hundred twenty, one hundred thirty,  one  hundred  fifty-five,  one  hundred  sixty,   one   hundred seventy-eight  or  two  hundred  twenty  of  the penal law; or any crime defined in section 260.32 or 260.34 of the penal law; or any  comparable offense  in  any other jurisdiction, the authorized agency shall deny or  disapprove the application for or renewal of the operating  certificate, contract,  approval,  employment  of  the  subject  individual  or other authorization to provide  services,  or  direct  the  provider  to  deny employment,  as  applicable, unless the authorized agency determines, in its  discretion,  that  approval  of  the  application  or  renewal   or employment  will not in any way jeopardize the health, safety or welfare of the beneficiaries of such services.  (b) Where  the  criminal  history  information  concerning  a  subject individual  reveals a conviction for a crime other than one set forth in paragraph (a) of this subdivision, the authorized agency  may  deny  the application or renewal, or direct the provider to deny employment of the subject  individual, or approve or disapprove the prospective employee's eligibility for employment by  the  provider,  consistent  with  article twenty-three-A of the correction law.  (c)  Where  the  criminal  history  information  concerning  a subject individual reveals a charge for any felony, the authorized agency shall, and for any misdemeanor, the authorized agency may hold the application, renewal or employment in abeyance until the charge is finally resolved.  (d) Prior to making a determination to deny an application or renewal, or directing an employer to deny employment, the authorized agency shall afford the subject individual an opportunity to explain, in writing, why the application should not be denied.  (e) Upon receipt of criminal history information  from  the  division, the   authorized  agency  may  request,  and  is  entitled  to  receive, information pertaining to any crime identified in such criminal  history information  from  any  state  or local law enforcement agency, district attorney, parole officer, probation officer or court for the purposes of determining whether any ground relating to such crime exists for denying an application, renewal, or employment.  (f)  The  authorized  agency  shall  thereafter  promptly  notify  the provider  concerning whether its check has revealed any criminal history information, and if so, what actions  shall  or  may  be  taken  by  the authorized agency and the provider.  (g)  Where the authorized agency denies the application for or renewal of an operating certificate, contract, approval or  other  authorization to  provide  services,  or  directs a provider to deny employment of the subject individual on  account  of  the  subject  individual's  criminal history  information,  the  notification  by the authorized agency shall include a summary of the criminal history information  provided  by  the division.  (h)  Where the authorized agency directs a provider to deny employment based on criminal history information,  the  provider  must  notify  the subject individual that such information is the basis of the denial.   6.  Upon  request  from  an  employee who has already been cleared for employment by  an  authorized  agency  and  who  subsequently  leaves  a particular  employer  and  applies  for  employment  with  another,  the authorizing agency shall adhere to its previous authorization  when  the criminal  history  information  is  unchanged  and  the circumstances of employment are substantially similar for the purposes of this section.   7. Any criminal history information provided by the division, and  any summary  of  the criminal history information provided by the authorized agency to an employer pursuant to this section is confidential and shall not be available for public inspection; provided,  however,  nothing  in this  subdivision  shall  prevent  an authorized agency or provider from disclosing  criminal  history  information  at  any  administrative   or judicial   proceeding  relating  to  the  denial  or  revocation  of  an application, employment, license or registration. Where  the  authorized agency   denies   the   application  for  or  renewal  of  an  operating  certificate,  contract,  approval  or  other  authorization  to  provide services,  or  directs  a  provider  to  deny  employment of the subject individual, the  subject  of  the  criminal  history  information  check conducted  pursuant  to  this section shall be entitled to receive, upon written  request,  a  copy  of  the  summary  of  the  criminal  history information provided by the authorized agency to the provider.   8.  A  provider  shall  advise  the  authorized  agency when a subject individual is no longer subject to such  check.  The  authorized  agency shall inform the division when a subject individual is no longer subject to  such  check so that the division may terminate its retain processing with regard to such individual. At least once  a  year,  the  authorized agency  shall  be  required  to  conduct  a  validation  of  the records maintained by the division,  including  information  obtained  from  the federal  bureau  of  investigation pursuant to article twenty-eight-E of the public health law and provide such results to the authorized  agency for  purposes  of updating the permanent record of such criminal history information results.   9. Provided that an authorized agency or a provider reasonably and  in good  faith complies with the provisions of this section, there shall be no criminal or civil liability on the part of and no cause of action for damages shall accrue against any authorized agency, provider or employee thereof on account of, arising out of or relating  to  criminal  history information pursuant to this section, or any act or omission relating to criminal history information pursuant to this section.   10.  Fingerprints  received  by  the division pursuant to this section shall be used only to assist the division in providing criminal  history information to authorized agencies under this section.   11.  An  authorized  agency or provider authorized to request criminal history information pursuant to this section may temporarily approve  an applicant  while  the  results of the criminal history information check are pending, so long as such person does not have unsupervised  physical contact  with  clients,  as  shall  be  defined by the authorized agency pursuant to regulation; provided however, that providers subject to  the provisions   of   subdivision   ten   of  section  twenty-eight  hundred ninety-nine-a  of  the  public  health  law  shall  be  subject  to  the supervision   requirements   provided  therein.  Such  regulation  shall recognize the differences in the staffing patterns  of  various  service models and the supervision required to ensure the safety of clients.   12.  The authorized agency in consultation with the commissioner shall promulgate  any  rules  and  regulations  necessary  to  implement   the provisions  of  this  section, which shall include convenient procedures for persons 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.