§ 845-B — Requests for criminal history information

§ 845-b. Requests for criminal history information. 1. Definitions. As\nused in this section:\n (a) "Authorized agency" means a state agency authorized to check\ncriminal history information pursuant to subdivision two of this\nsection.\n (b) "Authorized person" means the one individual designated by a\nprovider who is authorized to request, receive and review criminal\nhistory information pursuant to this section, except that where the\nnumber of applications received by a provider is so great that one\nperson cannot reasonably perform the functions of the authorized person,\na provider may designate one or more additional persons to serve as\nauthorized persons pursuant to this section.\n (c) "Criminal history information" means a record of pending criminal\ncharges, criminal convictions which are not vacated or reversed, and\ncertificates filed pursuant to subdivision two of section seven hundred\nfive of the correction law, and which the division is authorized to\nmaintain pursuant to subdivision six of section eight hundred\nthirty-seven of this article. For the purposes of criminal history\ninformation checks authorized pursuant to article twenty-eight-E of the\npublic health law, criminal history information shall also include\ninformation from the federal bureau of investigation as a result of a\nnational criminal history record check.\n (d) "Subject individual" means a person for whom a provider is\nauthorized to request a check of criminal history information pursuant\nto subdivision two of this section.\n (e) "Provider" means a person or entity authorized to request a check\nof criminal history information pursuant to subdivision two of this\nsection.\n 2. Where a provider is authorized or required to request a check of\ncriminal history information by an authorized agency pursuant to section\n16.33 or 31.35 of the mental hygiene law, article twenty-eight-E of the\npublic health law or subdivision one of section three hundred\nseventy-eight-a of the social services law, such provider shall proceed\npursuant to the provisions of this section and in a manner consistent\nwith the provisions of article twenty-three-A of the correction law,\nsubdivisions fifteen and sixteen of section two hundred ninety-six of\nthis chapter and all other applicable laws.\n 3. Procedures for criminal history information check requests by\nproviders. (a) A provider authorized to request a check of criminal\nhistory information pursuant to subdivision two of this section shall\ndesignate one authorized person who shall request a check of criminal\nhistory information on behalf of such provider pursuant to this section\nand review the results of such check. Only such authorized person or his\nor her designee and the subject individual to whom such criminal history\ninformation relates shall have access to such information; provided,\nhowever, that criminal history information received by a provider may be\ndisclosed to other persons who are directly participating in any\ndecision in regard to such subject individual; and provided, further,\nthat such other persons shall also be subject to the confidentiality\nrequirements and all other provisions of this section. In the case of\nrequests made pursuant to article twenty-eight-E of the public health\nlaw, only information authorized for disclosure under applicable federal\nlaws shall be transmitted to the provider. Each provider shall\nspecifically identify to the authorized agency in writing, in advance of\ndisclosure, the authorized person and each other such agent or employee\nof the provider who is authorized to have access to the results of a\ncheck of criminal history information pursuant to this section. Any\nperson who willfully permits the release of any confidential criminal\nhistory information contained in the report to persons not permitted by\nthis section to receive such information shall be guilty of a\nmisdemeanor.\n (b) A provider requesting a check of criminal history information\npursuant to this section shall do so by completing a form established\nfor such purpose by the authorized agency in consultation with the\ndivision. Such form shall include a sworn statement of the authorized\nperson certifying that:\n (i) the person for whose criminal history information a check is\nrequested is a subject individual for whom criminal history information\nis available by law;\n (ii) the specific duties which qualify the provider to request a check\nof criminal history information;\n (iii) the results of such criminal history information check will be\nused by the provider solely for purposes authorized by law; and\n (iv) the provider and its agents and employees are aware of and will\nabide by the confidentiality requirements and all other provisions of\nthis article.\n (c) A provider authorized to request a criminal history information\ncheck pursuant to this section may inquire of a subject individual in\nthe manner authorized by subdivision sixteen of section two hundred\nninety-six of this chapter. Prior to requesting such information, a\nprovider shall:\n (i) inform the subject individual in writing that the provider is\nauthorized or, where applicable, required to request a check of his or\nher criminal history information and review the results of such check\npursuant to this section;\n (ii) inform the subject individual that he or she has the right to\nobtain, review and seek correction of his or her criminal history\ninformation under regulations and procedures established by the\ndivision;\n (iii) obtain the signed, informed consent of the subject individual on\na form supplied by the authorized agency which indicates that such\nperson has:\n A. been informed of the right and procedures necessary to obtain,\nreview and seek correction of his or her criminal history information;\n B. been informed of the reason for the request for his or her criminal\nhistory information;\n C. consented to such request for a report; and\n D. supplied on the form a current mailing or home address.\n Upon receiving such written consent, the provider shall receive or\nobtain two sets of fingerprints of such subject individual pursuant to\nsuch regulations as may be necessary to be established by the authorized\nagency in consultation with the division, and promptly transmit them to\nthe authorized agency.\n (d) A subject individual may withdraw his or her application for\nemployment pursuant to this section, without prejudice, at any time\nbefore employment is offered or declined, regardless of whether the\nsubject individual or provider has reviewed such subject individual's\ncriminal history information.\n 4. Procedures for criminal history information checks by authorized\nagencies. (a) The authorized agency shall pay the processing fee imposed\npursuant to subdivision eight-a of section eight hundred thirty-seven of\nthis article, and in the case of the authorized agency pursuant to\narticle twenty-eight-E of the public health law, any fee imposed by the\nfederal bureau of investigation, and shall promptly submit the\nfingerprints and the processing fee to the division for its full search\nand retain processing, and in the case of the authorized agency pursuant\nto article twenty-eight-E of the public health law, the division shall\nimmediately forward the fingerprints to the federal bureau of\ninvestigation for a national criminal history record check. The\nauthorized agency may charge a provider a fee in amount no greater than\nthe fee established pursuant to law by the division for processing such\na criminal history information check, in such amounts as may be\nestablished by the authorized agency and approved by the director of the\ndivision of the budget, and in the case of the authorized agency\npursuant to article twenty-eight-E of the public health law, a fee no\ngreater than any fee imposed by the federal bureau of investigation.\nNothing in this section shall prohibit the authorized agency or provider\nfrom claiming the cost of such fees and related costs, including\nadministrative costs, as a reimbursable cost under the medical\nassistance program, Medicare or other payor, to the extent permitted by\nstate and federal law.\n (b) The division shall promptly provide requested state criminal\nhistory information to the authorized agency and, in accordance with\narticle twenty-eight-E of the public health law, the department of\nhealth is authorized also to receive criminal history information from\nthe federal bureau of investigation, after the receipt of a request\npursuant to this section if such request is:\n (i) made pursuant to a request by an authorized person on behalf of a\nprovider authorized to make such a request pursuant to subdivision two\nof this section;\n (ii) accompanied by the completed form described in this section; and\n (iii) accompanied by fingerprints of the subject individual obtained\npursuant to this section.\n (b-1) The division shall promptly forward a set of the subject\nindividual's fingerprints to the federal bureau of investigation for the\npurpose of a nationwide criminal history record check to determine\nwhether such applicant has been convicted of a criminal offense in any\nstate or federal jurisdiction. The division shall forward the results of\nsuch nationwide search to the authorized agency in the same form and\nmanner as the criminal history report created and provided by the\ndivision pursuant to this section.\n (c) Criminal history information provided by the division pursuant to\nthis section shall be furnished only by mail or other method of secure\nand confidential delivery, addressed to the authorized agency. Such\ninformation and the envelope in which it is enclosed, if any, shall be\nprominently marked "confidential", and shall at all times be maintained\nby the authorized agency in a secure place.\n 5. After reviewing any criminal history information provided by the\ndivision concerning a subject individual, the authorized agency shall\ntake the following actions:\n (a) Where the criminal history information concerning a subject\nindividual reveals a felony conviction at any time for a sex offense, a\nfelony conviction within the past ten years involving violence, or a\nconviction pursuant to section 260.00, 260.25, 260.32 or 260.34 of the\npenal law, and in the case of criminal history information obtained\npursuant to section twenty-eight hundred ninety-nine-a of the public\nhealth law, where the criminal history information concerning a subject\nindividual reveals a conviction at any time of any class A felony; a\nconviction within the past ten years of any class B or C felony, any\nclass D or E felony defined in article one hundred twenty, one hundred\nthirty, one hundred fifty-five, one hundred sixty, one hundred\nseventy-eight or two hundred twenty of the penal law; or any crime\ndefined in section 260.32 or 260.34 of the penal law; or any comparable\noffense in any other jurisdiction, the authorized agency shall deny or\ndisapprove the application for or renewal of the operating certificate,\ncontract, approval, employment of the subject individual or other\nauthorization to provide services, or direct the provider to deny\nemployment, as applicable, unless the authorized agency determines, in\nits discretion, that approval of the application or renewal or\nemployment will not in any way jeopardize the health, safety or welfare\nof the beneficiaries of such services.\n (b) Where the criminal history information concerning a subject\nindividual reveals a conviction for a crime other than one set forth in\nparagraph (a) of this subdivision, the authorized agency may deny the\napplication or renewal, or direct the provider to deny employment of the\nsubject individual, or approve or disapprove the prospective employee's\neligibility for employment by the provider, consistent with article\ntwenty-three-A of the correction law.\n (c) Where the criminal history information concerning a subject\nindividual reveals a charge for any felony, the authorized agency shall,\nand for any misdemeanor, the authorized agency may hold the application,\nrenewal or employment in abeyance until the charge is finally resolved.\n (d) Prior to making a determination to deny an application or renewal,\nor directing an employer to deny employment, the authorized agency shall\nafford the subject individual an opportunity to explain, in writing, why\nthe application should not be denied.\n (e) Upon receipt of criminal history information from the division,\nthe authorized agency may request, and is entitled to receive,\ninformation pertaining to any crime identified in such criminal history\ninformation from any state or local law enforcement agency, district\nattorney, parole officer, probation officer or court for the purposes of\ndetermining whether any ground relating to such crime exists for denying\nan application, renewal, or employment.\n (f) The authorized agency shall thereafter promptly notify the\nprovider concerning whether its check has revealed any criminal history\ninformation, and if so, what actions shall or may be taken by the\nauthorized agency and the provider.\n (g) Where the authorized agency denies the application for or renewal\nof an operating certificate, contract, approval or other authorization\nto provide services, or directs a provider to deny employment of the\nsubject individual on account of the subject individual's criminal\nhistory information, the notification by the authorized agency shall\ninclude a summary of the criminal history information provided by the\ndivision.\n (h) Where the authorized agency directs a provider to deny employment\nbased on criminal history information, the provider must notify the\nsubject individual that such information is the basis of the denial.\n 6. Upon request from an employee who has already been cleared for\nemployment by an authorized agency and who subsequently leaves a\nparticular employer and applies for employment with another, the\nauthorizing agency shall adhere to its previous authorization when the\ncriminal history information is unchanged and the circumstances of\nemployment are substantially similar for the purposes of this section.\n 7. Any criminal history information provided by the division, and any\nsummary of the criminal history information provided by the authorized\nagency to an employer pursuant to this section is confidential and shall\nnot be available for public inspection; provided, however, nothing in\nthis subdivision shall prevent an authorized agency or provider from\ndisclosing criminal history information at any administrative or\njudicial proceeding relating to the denial or revocation of an\napplication, employment, license or registration. Where the authorized\nagency denies the application for or renewal of an operating\ncertificate, contract, approval or other authorization to provide\nservices, or directs a provider to deny employment of the subject\nindividual, the subject of the criminal history information check\nconducted pursuant to this section shall be entitled to receive, upon\nwritten request, a copy of the summary of the criminal history\ninformation provided by the authorized agency to the provider.\n 8. A provider shall advise the authorized agency when a subject\nindividual is no longer subject to such check. The authorized agency\nshall inform the division when a subject individual is no longer subject\nto such check so that the division may terminate its retain processing\nwith regard to such individual. At least once a year, the authorized\nagency shall be required to conduct a validation of the records\nmaintained by the division, including information obtained from the\nfederal bureau of investigation pursuant to article twenty-eight-E of\nthe public health law and provide such results to the authorized agency\nfor purposes of updating the permanent record of such criminal history\ninformation results.\n 9. Provided that an authorized agency or a provider reasonably and in\ngood faith complies with the provisions of this section, there shall be\nno criminal or civil liability on the part of and no cause of action for\ndamages shall accrue against any authorized agency, provider or employee\nthereof on account of, arising out of or relating to criminal history\ninformation pursuant to this section, or any act or omission relating to\ncriminal history information pursuant to this section.\n 10. Fingerprints received by the division pursuant to this section\nshall be used only to assist the division in providing criminal history\ninformation to authorized agencies under this section.\n 11. An authorized agency or provider authorized to request criminal\nhistory information pursuant to this section may temporarily approve an\napplicant while the results of the criminal history information check\nare pending, so long as such person does not have unsupervised physical\ncontact with clients, as shall be defined by the authorized agency\npursuant to regulation; provided however, that providers subject to the\nprovisions of subdivision ten of section twenty-eight hundred\nninety-nine-a of the public health law shall be subject to the\nsupervision requirements provided therein. Such regulation shall\nrecognize the differences in the staffing patterns of various service\nmodels and the supervision required to ensure the safety of clients.\n 12. The authorized agency in consultation with the commissioner shall\npromulgate any rules and regulations necessary to implement the\nprovisions of this section, which shall include convenient procedures\nfor persons to promptly verify the accuracy of their criminal history\ninformation and, to the extent authorized by law, to have access to\nrelevant documents related thereto.\n