N.Y. Mental Hygiene Law § 19.20: Review of criminal history information concerning certain prospective employees and volunteers

§ 19.20 Review of criminal history information concerning certain

prospective employees and volunteers.

* Every provider of services who contracts with or is approved or

otherwise authorized by the office to provide services, except (1) a

department facility, (2) a hospital as defined in article twenty-eight

of the public health law, or (3) a licensed professional under title

eight of the education law who does not have employees or volunteers who

will have regular and substantial unsupervised or unrestricted physical

contact with the clients of such provider, shall request that the office

request and receive from the division of criminal justice services

criminal history information, as such phrase is defined in paragraph (c)

of subdivision one of section eight hundred forty-five-b of the

executive law, concerning each prospective employee or volunteer of such

provider who will have regular and substantial unsupervised or

unrestricted physical contact with the clients of such provider.

* NB Effective until November 3, 2023

* Every provider of services who contracts with or is approved or

otherwise authorized by the office to provide services, except (1) a

department facility, (2) a hospital as defined in article twenty-eight

of the public health law, or (3) a licensed professional under title

eight of the education law who does not have employees or volunteers who

will have regular and substantial unsupervised or unrestricted physical

contact with the clients of such provider, shall request that the office

request and receive from the division of criminal justice services

criminal history information, as such phrase is defined in paragraph (c)

of subdivision one of section eight hundred forty-five-b of the

executive law, concerning each prospective employee or volunteer of such

provider who will have regular and substantial unsupervised or

unrestricted physical contact with the clients of such provider.

Provided, however, a provider of services approved or otherwise

authorized under article thirty-six of this chapter shall comply with

the requirements of subdivision (a) of section 36.06 of such article to

satisfy the requirements of this section, and provided further that a

provider who complies with the requirements of subdivision (b) of

section 36.06 of such article, shall be deemed to have satisfied the

requirements of this section.

* NB Effective November 3, 2023

(a) Prior to requesting the office to obtain a criminal history

information concerning any prospective employee or volunteer, a provider

shall:

(1) inform the prospective employee or volunteer in writing that the

provider is required to request his or her criminal history information

and review such information pursuant to this section; and

(2) obtain the signed informed consent of the prospective employee or

volunteer on a form supplied by the division of criminal justice

services which indicates that such person has:

(i) been informed of the right and procedures necessary to obtain,

review and seek correction of his or her criminal history information;

(ii) been informed of the reason for the request for his or her

criminal history information;

(iii) consented to such request; and

(iv) supplied on the form a current mailing or home address.

Upon receiving such written consent, the provider shall obtain two sets

of fingerprints of such prospective employee or volunteer and provide

such fingerprints to the office pursuant to regulations established by

the division of criminal justice services.

(b) A provider requesting criminal history information pursuant to

this section shall also complete a form developed for such purpose by

the division of criminal justice services. Such form shall include a

sworn statement of the person designated by such provider to request,

receive and review criminal history information pursuant to paragraph

one of subdivision (g) of this section certifying that:

(1) such criminal history information will be used by the provider

solely for purposes authorized by this section;

(2) the provider and its staff are aware of and will abide by the

confidentiality requirements and all other provisions of this section;

and

(3) the persons designated by the provider to receive criminal history

information pursuant to paragraph one of subdivision (g) of this section

shall upon receipt immediately mark such criminal history information

"confidential," and shall at all times maintain such criminal history

information in a secure place.

(c) Upon receipt of the fingerprints and sworn statement required by

subdivisions (a) and (b) of this section, the office shall promptly

submit the fingerprints to the division of criminal justice services.

The division of criminal justice services shall promptly forward a set

of the applicant'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 other than New York or in a federal jurisdiction.

(d) The division of criminal justice services shall promptly provide

the requested criminal history information, if any, to the office.

Criminal history information provided by the division of criminal

justice services pursuant to this section shall be furnished only by

mail or other method of secure and confidential delivery, addressed to

the office. 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 office in a secure place.

(e) After receiving any criminal history information provided by the

division of criminal justice services concerning a prospective employee

or volunteer, the office shall review the information to determine

whether such prospective employee or volunteer has been convicted of a

criminal offense in any state other than New York or in a federal

jurisdiction. If the record does not include such information, the

office shall forward a summary of the New York criminal history

information to the provider who shall proceed pursuant to subdivision

(g) of this section. For the purposes of this section, "summary of the

criminal history information" shall mean a comprehensive synopsis of

criminal history information which shall include an individualized

statement for each pending charge and each criminal conviction which has

not been vacated, reversed or sealed.

(f) Where the criminal history information received by the office

includes a criminal offense in any state other than New York or in a

federal jurisdiction, the office shall consider whether to approve or

disapprove the prospective employee based on the criminal history

information in accordance with the provisions of article twenty-three-A

of the correction law and subdivisions fifteen and sixteen of section

two hundred ninety-six of the executive law and notify the provider of

its determination, provided, however, that a reasonable time before

making a determination pursuant to this subdivision, the office shall

provide the prospective employee or volunteer with a copy of the

criminal history information and a copy of article twenty-three-A of the

correction law, and inform such prospective employee or volunteer 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.

(g) Where the provider receives a summary of the criminal history

information from the office pursuant to subdivision (e) of this section,

the provider shall consider the information in accordance with the

provisions of article twenty-three-A of the correction law and

subdivisions fifteen and sixteen of section two hundred ninety-six of

the executive law.

(1) A provider shall designate one or two persons in its employ who

shall be authorized to request, receive and review the summary of the

criminal history information, and only such persons and the prospective

employee or volunteer to which the criminal history information relates

shall have access to such information; provided, however, that the

summary of the criminal history information may be disclosed to other

personnel authorized by the provider who are empowered to make decisions

concerning prospective employees or volunteers and provided further that

such other personnel shall also be subject to the confidentiality

requirements and all other provisions of this section. A provider shall

notify the office of each person authorized to have access to criminal

history information pursuant to this section.

(2) Upon receipt of the summary of criminal history information

pursuant to this section, a provider shall provide the prospective

employee or volunteer with a copy of such summary of the criminal

history information and a copy of article twenty-three-A of the

correction law, and inform such prospective employee or volunteer 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.

(h) A prospective employee or volunteer may withdraw from the

application process, without prejudice, at any time regardless of

whether he or she, the office or the provider has reviewed his or her

criminal history information. Where a prospective employee or volunteer

withdraws from the application process, any fingerprints and criminal

history information concerning such prospective employee or volunteer

received by the office or the provider shall, within ninety days, be

returned to such prospective employee or volunteer.

(i) The commissioner of the division of criminal justice services

shall promulgate all rules and regulations necessary to implement the

provisions of this section, which shall include convenient procedures

for prospective employees and volunteers 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.

(j) 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.