§ 2899-A — Requests for criminal history information concerning prospective employees

§ 2899-a. Requests for criminal history information concerning\nprospective employees. 1. A provider shall request that the department\ncheck, and upon such request the department shall check its permanent\nrecord according to this section for a determination on a prospective\nemployee. If a permanent record does not exist for the prospective\nemployee, the department shall be authorized to request and receive\ncriminal history information concerning the prospective employee from\nthe division of criminal justice services in accordance with the\nprovisions of section eight hundred forty-five-b of the executive law.\nAccess to and the use of such information shall be governed by the\nprovisions of such section. The division of criminal justice services is\nauthorized to submit fingerprints to the federal bureau of investigation\nfor a national criminal history record check.\n 2. To the extent permitted by law, a provider shall request from a\nprospective employee a sworn statement disclosing any prior finding of\npatient or resident abuse, or a criminal conviction in this state or any\nother jurisdiction. Providers shall evaluate such statements in all\nhiring decisions, including any temporary approvals allowed under\nsubdivision eleven of section eight hundred forty-five-b of the\nexecutive law and subdivision ten of this section.\n 3. No person who has been fingerprinted pursuant to this article and\nwhose fingerprints remain on file with the division of criminal justice\nservices shall be required to undergo fingerprinting for purposes of a\nnew state check required by this article.\n 4. The commissioner shall promulgate all rules and regulations\nnecessary to implement the provisions of this article, which shall\ninclude convenient procedures for prospective employees to promptly\nverify the accuracy of their criminal history information and, to the\nextent authorized by law, to have access to relevant documents related\nthereto.\n 5. Nothing in this article shall be construed or interpreted to in any\nway diminish the integrity of any collective bargaining agreement\nnegotiated on or before April first, two thousand five between an\nemployer and any certified or authorized collective bargaining agent for\nemployees, or to diminish rights which accrue to such employees pursuant\nto such agreements.\n 6. The department may accept digital fingerprint images or any other\nacceptable technological devices used to obtain and/or transmit\nfingerprint images for the purposes of this article, as provided for in\nthe rules and regulations created by the commissioner pursuant to\nsubdivision four of this section. To the extent funds are available\ntherefor, grants to assist and facilitate the purchase of technology\nshall be made available to providers who demonstrate the need for\nfinancial assistance as determined by the department.\n 7. The department promptly shall make all determinations and actions\nrequired by subdivision five of section eight hundred forty-five-b of\nthe executive law upon receipt of the information from the division of\ncriminal justice services and the federal bureau of investigation,\nprovided that when rendering a determination to propose denial of\nemployment eligibility, the department shall provide the individual who\nis the subject of the criminal history information check with a copy of\nsuch criminal history information and a copy of article twenty-three-A\nof the correction law and inform such individual of his or her right to\nseek correction of any incorrect information contained in such criminal\nhistory information pursuant to the regulations and procedures\nestablished by the division of criminal justice services. The department\nshall create a permanent record, update the information in accordance\nwith section eight hundred forty-five-b of the executive law and make\nonly records or information received from the division of criminal\njustice services available to providers pursuant to this section.\n 8. The department shall allow all providers access to any\ndetermination made upon a prospective employee at such time as such\nprospective employee presents himself or herself to such provider for\nemployment. In the event that the prospective employee has a permanent\nrecord already on file with the department, this information promptly\nshall be made available to the provider who intends to hire such\nprospective employee.\n 9. * (a) In the event that funds are appropriated in any given fiscal\nyear for the reimbursement for the costs of providing such criminal\nhistory information, reimbursement shall be made available in an\nequitable and direct manner for the projected cost of the fee\nestablished pursuant to law by the division of criminal justice services\nfor processing a criminal history information check, the fee imposed by\nthe federal bureau of investigation for a national criminal history\ncheck, and costs associated with obtaining the fingerprints to all\nproviders licensed, but not certified under article thirty-six of this\nchapter, providers certified under article forty of this chapter, and\nall adult care facilities licensed under article seven of the social\nservices law, including those that are subject to this article and are\nunable to access direct reimbursement from state and/or federal funded\nhealth programs.\n * NB Effective until March 31, 2029\n * (a) In the event that funds are appropriated in any given fiscal\nyear for the reimbursement for the costs of providing such criminal\nhistory information, reimbursement shall be made available in an\nequitable and direct manner for the projected cost of the fee\nestablished pursuant to law by the division of criminal justice services\nfor processing a criminal history information check, the fee imposed by\nthe federal bureau of investigation for a national criminal history\ncheck, and costs associated with obtaining the fingerprints to all\nproviders licensed, but not certified under article thirty-six of this\nchapter, and all adult care facilities licensed under article seven of\nthe social services law, including those that are subject to this\narticle and are unable to access direct reimbursement from state and/or\nfederal funded health programs.\n * NB Effective March 31, 2029\n (b) Residential health care facilities licensed pursuant to article\ntwenty-eight of this chapter and certified home health care agencies and\nlong-term home health care programs certified or approved pursuant to\narticle thirty-six of this chapter or a health home, or any\nsubcontractor of such health home, who contracts with or is approved or\notherwise authorized by the department to provide health home services,\nincluding enrollees who are under twenty-one years of age, under section\nthree hundred sixty-five-l of the social services law, except for a\nhealth home, or any subcontractor of such health home, who contracts\nwith or is approved or otherwise authorized by the department to provide\nhealth home services to all those enrolled pursuant to a diagnosis of a\ndevelopmental disability as defined in subdivision twenty-two of section\n1.03 of the mental hygiene law; or any entity that provides home and\ncommunity based services to enrollees who are under twenty-one years of\nage under a demonstration program pursuant to section eleven hundred\nfifteen of the federal social security act, may, subject to the\navailability of federal financial participation, claim as reimbursable\ncosts under the medical assistance program, costs reflecting the fee\nestablished pursuant to law by the division of criminal justice services\nfor processing a criminal history information check, the fee imposed by\nthe federal bureau of investigation for a national criminal history\ncheck, and costs associated with obtaining the fingerprints, provided,\nhowever, that for the purposes of determining rates of payment pursuant\nto article twenty-eight of this chapter for residential health care\nfacilities, such reimbursable fees and costs shall be reflected as\ntimely as practicable in such rates within the applicable rate period.\n 10. Notwithstanding subdivision eleven of section eight hundred\nforty-five-b of the executive law, a certified home health agency,\nlicensed home care services agency or long term home health care program\ncertified, licensed or approved under article thirty-six of this chapter\nor a home care services agency exempt from certification or licensure\nunder article thirty-six of this chapter, a hospice program under\narticle forty of this chapter, or an adult home, enriched housing\nprogram or residence for adults licensed under article seven of the\nsocial services law, or a health home, or any subcontractor of such\nhealth home, who contracts with or is approved or otherwise authorized\nby the department to provide health home services, including enrollees\nwho are under twenty-one years of age, under section three hundred\nsixty-five-l of the social services law, except for a health home, or\nany subcontractor of such health home, who contracts with or is approved\nor otherwise authorized by the department to provide health home\nservices to all those enrolled pursuant to a diagnosis of a\ndevelopmental disability as defined in subdivision twenty-two of section\n1.03 of the mental hygiene law; or any entity that provides home and\ncommunity based services to enrollees who are under twenty-one years of\nage under a demonstration program pursuant to section eleven hundred\nfifteen of the federal social security act may temporarily approve a\nprospective employee while the results of the criminal history\ninformation check and the determination are pending, upon the condition\nthat the provider conducts appropriate direct observation and evaluation\nof the temporary employee, while he or she is temporarily employed, and\nthe care recipient; provided, however, that for a health home, or any\nsubcontractor of a health home, who contracts with or is approved or\notherwise authorized by the department to provide health home services,\nincluding enrollees who are under twenty-one years of age, under section\nthree hundred sixty-five-l of the social services law, except for a\nhealth home, or any subcontractor of such health home, who contracts\nwith or is approved or otherwise authorized by the department to provide\nhealth home services to all those enrolled pursuant to a diagnosis of a\ndevelopmental disability as defined in subdivision twenty-two of section\n1.03 of the mental hygiene law; or any entity that provides home and\ncommunity based services to enrollees who are under twenty-one years of\nage under a demonstration program pursuant to section eleven hundred\nfifteen of the federal social security act, direct observation and\nevaluation of temporary employees shall not be required until July\nfirst, two thousand nineteen. The results of such observations shall be\ndocumented in the temporary employee's personnel file and shall be\nmaintained. For purposes of providing such appropriate direct\nobservation and evaluation, the provider shall utilize an individual\nemployed by such provider with a minimum of one year's experience\nworking in an agency certified, licensed or approved under article\nthirty-six of this chapter or an adult home, enriched housing program or\nresidence for adults licensed under article seven of the social services\nlaw, a health home, or any subcontractor of such health home, who\ncontracts with or is approved or otherwise authorized by the department\nto provide health home services, including enrollees who are under\ntwenty-one years of age, under section three hundred sixty-five-l of the\nsocial services law, except for a health home, or any subcontractor of\nsuch health home, who contracts with or is approved or otherwise\nauthorized by the department to provide health home services to all\nthose enrolled pursuant to a diagnosis of a developmental disability as\ndefined in subdivision twenty-two of section 1.03 of the mental hygiene\nlaw; or any entity that provides home and community based services to\nenrollees who are under twenty-one years of age under a demonstration\nprogram pursuant to section eleven hundred fifteen of the federal social\nsecurity act. If the temporary employee is working under contract with\nanother provider certified, licensed or approved under article\nthirty-six of this chapter, such contract provider's appropriate direct\nobservation and evaluation of the temporary employee, shall be\nconsidered sufficient for the purposes of complying with this\nsubdivision.\n 11. No provider shall seek, directly or indirectly, to obtain from a\nprospective employee, temporary employee or employee compensation in any\nform for the payment of the fee or any facility costs associated with\nobtaining the criminal history information check required by this\narticle.\n 12. This article shall be deemed to supersede and apply in lieu of any\nlocal laws or laws of any political subdivision of the state or any\nregulations of the department requiring a criminal history record check\nto the extent provided for in this article.\n