New York Codes, Rules and Regulations › Title 10 - DEPARTMENT OF HEALTH › Chapter V - Medical Facilities › Subchapter A - Medical Facilities-minimum Standards › Article 1 - General › Part 402 - Criminal History Record Check › Section 402.7 - Department criminal history review

Current through Register Vol. 46, No. 28, July 10, 2024
(a) After reviewing a criminal history record
					 of an individual who is subject to a criminal history record check pursuant to
					 this Part, the department and the provider shall take the following actions:
(1) Where a prospective employee of a
					 provider has no criminal history information, the department shall promptly
					 advise the provider that the department will not issue a disapproval for
					 employment, is not directing the provider to issue a disapproval, and the
					 provider may act on the application in its own discretion.
(2) Where the criminal history information of
					 a prospective employee 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 endangering the welfare of an incompetent or physically disabled
					 person pursuant to section
					 260.25 of the
					 Penal Law, or where the criminal history information concerning such
					 prospective employee reveals a conviction at any time of any class A felony, a
					 conviction within the past 10 years of any class B or C felony, any class D or
					 E felony defined in article 120, 130, 155, 160, 178 or 220 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 department
					 shall propose disapproval of such person's eligibility for employment unless
					 the department determines, in its discretion, that the prospective employee's
					 employment will not in any way jeopardize the health, safety or welfare of
					 patients, residents or clients of the provider.
(i) The department shall provide to the
					 provider and the prospective employee, in writing, a summary of the criminal
					 history information along with the notification identified in this paragraph.
					 Upon the provider's receipt from the department of a notification of proposed
					 disapproval of eligibility for employment, the provider shall not allow the
					 prospective employee to provide direct care or supervision to patients,
					 residents, or clients of such provider until receipt of a final determination
					 of eligibility for employment from the department.
(ii) In cases where the department determines
					 that the prospective employee's employment will not in any way jeopardize the
					 health, safety or welfare of patients, residents or clients of the provider and
					 therefore neither issues a disapproval of eligibility for employment nor
					 directs the provider to issue a disapproval, the provider may act on the
					 application in its own discretion.
(3) Where the criminal history information of
					 a prospective employee reveals a conviction for any crime other than one set
					 forth in paragraph (2) of this subdivision, the department may, consistent with
					 article 23-A of the Correction Law, propose disapproval of eligibility for
					 employment.
(i) The department shall provide
					 to the provider and the prospective employee, in writing, a summary of the
					 prospective employee's criminal history information along with the notification
					 identified in this paragraph. Upon the provider's receipt from the department
					 of a notification of proposed disapproval of eligibility for employment, the
					 provider shall not allow the prospective employee to provide direct care or
					 supervision to patients, residents, or clients of such provider until receipt
					 of a final determination from the department.
(ii) In cases where the department does not
					 issue a disapproval of eligibility for employment, the provider may act on any
					 application for employment in its own discretion, consistent with article 23-A
					 of the Correction Law.
(4) Where the criminal history information of
					 a prospective employee reveals a charge for any felony, the department shall
					 hold the determination regarding a prospective employee's eligibility for
					 employment in abeyance until the charge is finally resolved. Upon receipt of
					 notification from the department of the abeyance, the provider shall not allow
					 the prospective employee to provide direct care or supervision to patients,
					 residents, or clients of such provider before final resolution of the criminal
					 charge.
(5) Where the criminal
					 history information of a prospective employee reveals a charge for any
					 misdemeanor, the department may, after review of the severity of the
					 misdemeanor, hold such determination in abeyance until the charge is finally
					 resolved. If the department holds such determination in abeyance, the provider
					 shall not allow, upon receipt of notification of such determination from the
					 department, the prospective employee to provide direct care or supervision to
					 patients, residents, or clients of such provider before final resolution of the
					 criminal charge.