N.Y. Comp. Codes R. & Regs. tit. 14 § 550.6

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

Section 550.6 - Criminal history review

(a) After reviewing a criminal history record of an individual who is subject to a criminal history record check pursuant to this section, the office and the provider of services shall take the following actions:

(1) Applicant to be a natural person operator of a new provider of services after April 1, 2005; or a new natural person operator of an existing provider after April 1, 2005.

(i) Where an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, has no criminal history, the office shall promptly resume its review of the application in accordance with the provisions of Part 551 or Part 87 of this Title, as applicable.

(ii) Where the criminal history record of an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, reveals any of the following, the Justice Center shall deny the application unless it determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of clients in the facility or program:

(a) a felony conviction at any time for a sex offense;

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

(c) a conviction for endangering the welfare of an incompetent or physically disabled person pursuant to section 260.25 of the Penal Law or, for applicants to be an operator of a new provider of services or a new operator of an existing provider that has been submitted on or after June 30, 2013, a conviction of Section 260.00, 260.25, 260.32 or 260.34 of the Penal Law; or

(d) any comparable offense in any other jurisdiction.

(iii) Where the criminal history record of an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, reveals a conviction for any crime other than one set forth in subparagraph (ii) of this paragraph, the office may, consistent with article 23-A of the Correction Law, deny the application.

(iv) Where the criminal history record of an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, reveals a charge for any felony or, for applications made on or after March 12, 2007, any comparable offense in any other jurisdiction, the office shall hold the application in abeyance until the charge is finally resolved.

(v) Where the criminal history record of an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, reveals a charge for any misdemeanor or, for applications made on or after March 12, 2007, any comparable offense in any other jurisdiction, the office may hold the application in abeyance until the charge is finally resolved.

(2) Applicant to be an employee or volunteer.

(i) Where a prospective employee or volunteer of a provider of services has no criminal history, the Justice Center shall promptly advise the provider of services that it shall not issue a denial for employment or volunteer service and is not directing the provider of services to issue a denial.

(ii) Where the criminal history record of a prospective employee or volunteer of a provider of services reveals any of the following, the Justice Center shall direct the provider to deny employment of or authorization to provide services by such person unless the Justice Center determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of clients in the facility or program:

(a) a felony conviction at any time for a sex offense;

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

(c) a conviction for endangering the welfare of an incompetent or physically disabled person pursuant to section 260.25 of the Penal Law or, for applications submitted on or after June 30, 2013, a conviction of Section 260.00, 260.25, 260.32 or 260.34 of the Penal Law; or

(d) any comparable offense in any other jurisdiction.

(iii) The Justice Center shall provide a summary of the criminal history record along with such notification provided, however, that with respect to information obtained from the Federal Bureau of Investigation as a result of a national criminal history record check, only information authorized for disclosure under applicable Federal laws shall be transmitted to the provider.

(iv) In cases where the Justice Center does not issue a denial, or does not direct the provider of services to issue a denial, the provider of services may act on the application in its own discretion, consistent with all applicable laws and regulations.

(v) Where the criminal history record of a prospective employee or volunteer of a provider of services reveals a conviction for any crime other than one set forth in subparagraph (1)(ii) of this subdivision, the Justice Center may, consistent with article 23-A of the Correction Law, direct the provider to deny employment/authorization to provide services.

(a) The Justice Center shall provide a summary of the criminal history record along with such notification provided, however, that with respect to information obtained from the Federal Bureau of Investigation as a result of a national criminal history record check, only information authorized for disclosure under applicable Federal laws shall be transmitted to the provider.

(b) In cases where the Justice Center does not issue a denial, or does not direct the provider of services to issue a denial, the provider of services may act on the application on its own discretion, consistent with all applicable laws and regulations.

(vi) Where the criminal history record of a prospective employee or volunteer of a provider of services reveals a charge for any felony or any comparable offense in any other jurisdiction, the Justice Center shall hold the application in abeyance until the charge is finally resolved.

(vii) Where the criminal history record of a prospective employee or volunteer of a provider of services reveals a charge for any misdemeanor or any comparable offense in any other jurisdiction, the Justice Center may hold the application in abeyance until the charge is finally resolved.

(b) Prior to making a determination to deny an application pursuant to subdivision (a) of this section, the office shall afford the prospective employee or volunteer an opportunity to explain in writing, within 10 calendar days from the date the notification was mailed, why the application should not be denied. The opportunity for an explanation shall be sent non-electronically, in a manner of mailing this is capable of verifying the date of mailing. For prospective operators and new operators of existing providers of service, this opportunity may, at the discretion of the office, be afforded in the application or certification renewal materials for such operators required to be submitted to the office.

(c) Where the office directs a provider of services to deny an application of a prospective employee or volunteer, or terminate a temporarily approved prospective employee or volunteer, based on the criminal history record, the provider of services must notify such person that such criminal history record is the basis of the denial. Such notification must advise the prospective employee or volunteer that a copy of the summary of the criminal history record provided by the office to the provider is available from the provider upon written request by the prospective employee or volunteer.

(d) Documentation and confidentiality requirements.

(1) Only the authorized person or his or her designee and the relevant subject party shall have access to criminal history information received by a provider of services. However, criminal history information may be disclosed by the authorized person to other parties who are directly participating in any decision with regard to such subject party, to which this information is relevant provided, however, that with respect to information obtained from the Federal Bureau of Investigation as a result of a national criminal history record check, only information authorized for disclosure under applicable Federal laws shall be transmitted to the provider.

(2) The authorized person and any other party to whom such criminal history is disclosed shall keep this information strictly confidential.

(3) Any party who willfully permits the release of any confidential criminal history information obtained from a criminal background check pursuant to this section to parties not authorized to receive same in accordance with section 845-b of the Executive Law shall be guilty of a misdemeanor.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 550.6

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