N.Y. Public Health Law § 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.