N.Y. Comp. Codes R. & Regs. tit. 10 § 402.4

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

Section 402.4 - General requirements

(a)

(1) Each provider shall assure that criminal history information is requested, received, reviewed, and acted upon in a timely manner. Each provider shall designate one authorized person or, when necessary to assure compliance with this Part more authorized persons, and shall submit the name, position and contact information for each authorized person to the department in the form and format required by the department.

(2) A provider may request the designation of more authorized persons, as provided for in paragraph (1) of this subdivision, with the basis for such request. The department shall determine the reasonableness of such request weighing the need for maintaining confidentiality of the criminal history information against the provider's administration of criminal history record checks.

(b) Each provider shall develop and implement written policies and procedures related to conducting criminal history record checks. Such policies and procedures shall include criteria for:

(1) determining whether a particular prospective employee is subject to a criminal history record check;

(2) protecting the safety of persons receiving services from temporary employees as follows:

(i) residential health care facilities shall ensure that temporary employees do not have unsupervised physical contact with patients, by utilizing a person employed by the provider on the same nursing unit as the temporary employee but such person employed by the provider need not be employed in the same department as the temporary employee. Such person must know the identity and assignment of each temporary employee so supervised in the residential health care facility at all times. Supervision must be documented in writing on a weekly basis and maintained in the temporary employee's personnel folder;

(ii) certified home health agencies, licensed home care service agencies, and long term home health care programs shall provide appropriate direct observation and evaluation of the temporary employee by utilizing an individual employed by such provider with a minimum of one year's experience working in a provider certified, licensed or approved under article 36 of the Public Health Law. Such observation and evaluation shall occur on a weekly basis provided, however, that such direct observation and evaluation shall occur on-site in the home the first week by a licensed health care professional, senior aide or other paraprofessional who meets the one year requirement of employment in home care and at least once every other week thereafter by an individual meeting the minimum one year experience as set forth in this subparagraph. On alternate weeks direct observation and evaluation may be on-site in the home or by phone call to the patient or the patient's representative. The results of such observations shall be documented in the temporary employee's personnel file and shall be maintained;

(iii) if the temporary employee is working under contract with another provider certified, licensed or approved under article 36 of the Public Health Law, such contract provider's appropriate direct observation and evaluation of the temporary employee, as described in this subparagraph, shall be considered sufficient for the purposes of complying with this paragraph. The results of such observations shall be documented in the temporary employee's personnel file and shall be maintained;

(iv) Adult homes, enriched housing programs, and residences for adults shall provide appropriate direct observation and evaluation of the temporary employee by utilizing an individual employed by the provider to conduct on-site supervision. Such individual must know the identity and assignment of each temporary employee so supervised in the adult home, enriched housing program, or residence for adults at all times. Supervision must be documented in writing on a weekly basis and maintained in the temporary employee's personnel folder.

(v) Hospice programs certified under Article 40 of the Public Health Law shall provide appropriate direct observation and evaluation of the temporary employee by utilizing an individual employed by such provider with a minimum of one year's experience working for a provider certified, licensed or approved under Article 40 the Public Health Law or through a contract with another provider certified, licensed or approved under Article 36 of the Public Health Law. Such observation and evaluation shall occur on a weekly basis provided, however, that such direct observation and evaluation shall occur on-site in the home the first week by a licensed health care professional, senior aide or other paraprofessional who meets the one year requirement of employment in home care or hospice and at least once every other week thereafter by an individual meeting the minimum one year experience as set forth in this subparagraph. On alternate weeks direct observation and evaluation may be on-site in the home or by phone call to the patient or the patient's representative. The results of such observations shall be documented in the temporary employee's personnel file and shall be maintained.

(3) providing notice to the department when a person ceases to be a subject individual since the person is no longer employed or used by the provider or such person's job duties no longer meet the definition of employee set forth in section 402.3(i) of this Part to provide direct care or supervision to patients, residents, or clients of the provider in the form, format and manner required by the department.

(c) No person who has been fingerprinted pursuant to this Part, whose fingerprints remain on file with the division, shall be required to undergo fingerprinting for purposes of a new criminal history record check required by this Part.

(d) Nothing in this Part shall be construed or interpreted to in any way diminish the integrity of any collective bargaining agreement negotiated on or before April 1, 2005 between a provider and any certified or authorized collective bargaining agent for employees, or to diminish rights which accrue to such employees pursuant to such agreements.

(e) 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 fees or any provider or facility costs associated with obtaining the criminal history record check required by this Part.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 402.4

Amended New York State Register December 12, 2018/Volume XL, Issue 50, eff. 12/12/2018