N.Y. Comp. Codes R. & Regs. tit. 14 § 550.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 550.5 - Submission of fingerprints by providers of services

(a) The Justice Center shall perform a criminal history record check regarding any prospective operator, employee, or volunteer of a provider of services which is required to comply with Section 31.35 of the Mental Hygiene Law. For purposes of this Part, the inclusion of a national criminal history background check shall apply to all prospective operators, employees, or volunteers whose applications are submitted to the Justice Center for a criminal history background check on or after March 12, 2007.

(b) Any provider of services subject to compliance with this Part which is issued an operating certificate on or after April 1, 2005 shall require a criminal history record check of natural persons with an ownership interest in such providers, provided, however, that for purposes of this Part, the inclusion of a national criminal history background check of natural persons with such an ownership interest shall apply to all providers of service issued an operating certificate on or after March 12, 2007. Any change in the ownership interest of any provider on or after April 1, 2005, for which a new natural person becomes or joins as an operator shall require a criminal history record check of such new natural person or persons, which shall be performed in concert with the prior approval process established in section 551.6 of this Title, or the application process established in section 87.3 of this Title, as applicable. For purposes of this Part, the inclusion of a national criminal history background check of new or additional natural person operators shall apply to all such changes in ownership proposed on or after March 12, 2007.

(c) Criminal history record reviews required in accordance with this Part shall apply only to persons who are prospective employees or volunteers, as defined in this Part, as identified by the provider of services.

(d) The Justice Center shall supply every provider of services that is subject to the provisions of this Part with information identifying the designated fingerprinting entities that may be utilized to facilitate compliance with this Part.

(e) Fingerprint submission process.

(1) Prior to requesting a criminal background check for any prospective employee or volunteer, as defined in section 550.4 of this Part, a provider of services subject to this Part shall check the Justice Center's Register of Substantiated Category One Cases of Abuse or Neglect. If the applicant's name appears on the Register, the provider of services shall not process the application. If the applicant's name does not appear on the register, the provider of services may proceed with the fingerprint submission process in accordance with the provisions of this Section.

(2) As part of a provider of services' initial application for a license to provide mental health services in accordance with Article 31 of the Mental Hygiene Law, its authorized person(s) shall be responsible for furnishing the Justice Center with the fingerprints of the prospective operator of the provider, as well as those of any prospective employee or volunteer of the provider of services, as defined in Section 550.4 of this Part.

(3) As part of a provider of services' renewal of a license to provide mental health services in accordance with Article 31 of the Mental Hygiene Law, its authorized person(s) shall be responsible for furnishing the Justice Center with fingerprints of any operator who joined the organization subsequent to April 1, 2005 and who previously did not have a criminal history record check performed.

(4) Every provider of services subject to this Part shall be responsible for obtaining a set of fingerprints for each prospective employee or volunteer of the provider of services, as defined in Section 550.4 of this Part, and its authorized person(s) shall submit same to the Justice Center for a criminal background check.

(5) Prior to requesting a criminal background check for any prospective employee or volunteer, as defined in section 550.4 of this Part, a provider of services subject to this Part shall obtain, and maintain, documentation demonstrating that:

(i) the provider of services has informed the prospective employee or volunteer, in writing, that such provider is authorized, and in some cases, required, to request a check of his or her criminal history information and review the results of such check in accordance with Section 845-b of the Executive Law;

(ii) the provider of services has informed the prospective employee or volunteer that he or she has the right to obtain, review, and seek correction of his or her criminal history record in accordance with regulations and procedures of the Division and the Federal Bureau of Investigation;

(iii) the provider of services has obtained the signed, informed consent of the prospective employee or volunteer on a form supplied by the Justice Center which indicates that such person:

(a) has been informed of the right and procedures necessary to obtain, review, and seek correction of his or her criminal history information;

(b) has been informed of the reason for the request for his or her criminal history information;

(c) has been informed that the criminal history information sought will include both a New York State and, on or after March 12, 2007, a national criminal history information check;

(d) has consented to such request for a report of his or her criminal history information with respect to New York State and, on or after March 12, 2007, national criminal history information;

(e) has supplied a current mailing or home address on the form;

(f) has or has not, to the best of his or her knowledge, ever been convicted of a crime in New York State or any other jurisdiction; and

(g) has or has not, to the best of his or her knowledge, any felony or misdemeanor charges currently pending against him or her that remain unresolved.

(6) A provider of services requesting a criminal background check pursuant to this Section shall do so by completing and submitting a form developed and provided by the Justice Center, in consultation with the Division. The form shall be completed by the authorized person, shall be submitted to the Justice Center and maintained thereby pursuant to an agreement with the Division, and shall include a sworn statement from the authorized person, in the form and format prescribed by the Justice Center, which attests:

(i) that the authorized person shall identify the name of each person for whom a criminal history record check is being requested, and attests that each such person is either a prospective operator, employee, or volunteer of the provider of services, and, as such, the person is a subject individual, as defined in Section 550.4 of this Part;

(ii) that the authorized person shall identify the specific duties which qualify the provider of services to request a check of the subject individual's criminal history information;

(iii) that the results of the criminal history information check will be used by the provider of services solely for the purposes authorized by law; and

(iv) that the provider of services, its agents, and employees are aware of and will abide by the confidentiality requirements and all other provisions of Chapter 575 of the Laws of 2004.

(f) A licensed or otherwise approved provider of services may temporarily approve a prospective employee or volunteer while the results of the criminal history record check are pending, but shall not allow such person to have unsupervised physical contact with clients during such time.

(1) For purposes of this Part, unsupervised physical contact shall mean in-person, face to face communication or interaction with clients, or the reasonable opportunity for such communication or interaction, while not at all times in the reasonable physical proximity of another person, who is employed or under contract with the provider of services and who:

(i) has management or oversight authority over the prospective employee or volunteer; or

(ii) has had at least six months of experience as an employee of the provider of services and has been deemed by such provider to be qualified to provide adequate oversight of temporarily approved prospective employees or volunteers.

(2) Such provider must establish policies and procedures to implement the provisions of this subdivision. Such policies and procedures shall address the need for supervision to monitor the activities of the temporarily approved prospective employee or volunteer in order to ensure the health, safety, and welfare of clients, taking into consideration the nature of the environment (e.g., physical plant considerations), staffing patterns, employee responsibilities, and the characteristics of clients, and must include provisions which:

(i) ensure that temporarily approved prospective employees or volunteers who are to be assigned personal care activities which require privacy for people receiving services (e.g., bathing, dressing and toileting), are supervised in accordance with paragraph (1) of this subdivision, and that the individual designated to supervise such temporarily approved prospective employee or volunteer is always present in the same room as such prospective employee or volunteer at all times while such personal care activities are occurring;

(ii) prevent any person with a conviction or pending charge of one or more of the following from being temporarily approved, provided that the provider of services has been previously informed by the prospective employee or volunteer in the application process, or by the office prior to issuance of its determination, of such conviction or pending charge:

(a) a felony sex offense;

(b) a felony within the past 10 years involving violence;

(c) for endangering the welfare of an incompetent or physically disabled person pursuant to Sections 260.00, 260.25, 260.32 or 260.34 of the Penal Law; or

(d) on or after March 12, 2007, any comparable offense in any other jurisdiction; and

(iii) provide that, in cases where the temporarily approved prospective employee or volunteer has a pending felony charge other than as specified in subparagraph (ii) of this paragraph, or any pending misdemeanor charge, the provider of services must document its reasons for granting temporary approval, including an explanation as to why such action will not place clients at risk of harm, provided that the provider of services has been previously informed by the prospective employee or volunteer in the application process, or by the office prior to issuance of its determination, of such conviction or pending charge.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 550.5

Amended New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015