2023 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, 2029
* (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, 2029
(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.