N.Y. Comp. Codes R. & Regs. tit. 10 § 402.7

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

Section 402.7 - Department 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 Part, the department and the provider shall take the following actions:

(1) Where a prospective employee of a provider has no criminal history information, the department shall promptly advise the provider that the department will not issue a disapproval for employment, is not directing the provider to issue a disapproval, and the provider may act on the application in its own discretion.

(2) Where the criminal history information of a prospective employee reveals a felony conviction at any time for a sex offense, a felony conviction within the past 10 years involving violence, or a conviction for endangering the welfare of an incompetent or physically disabled person pursuant to section 260.25 of the Penal Law, or where the criminal history information concerning such prospective employee reveals a conviction at any time of any class A felony, a conviction within the past 10 years of any class B or C felony, any class D or E felony defined in article 120, 130, 155, 160, 178 or 220 of the Penal Law or any crime defined in section 260.32 or 260.34 of the Penal Law or any comparable offense in any other jurisdiction, the department shall propose disapproval of such person's eligibility for employment unless the department determines, in its discretion, that the prospective employee's employment will not in any way jeopardize the health, safety or welfare of patients, residents or clients of the provider.

(i) The department shall provide to the provider and the prospective employee, in writing, a summary of the criminal history information along with the notification identified in this paragraph. Upon the provider's receipt from the department of a notification of proposed disapproval of eligibility for employment, the provider shall not allow the prospective employee to provide direct care or supervision to patients, residents, or clients of such provider until receipt of a final determination of eligibility for employment from the department.

(ii) In cases where the department determines that the prospective employee's employment will not in any way jeopardize the health, safety or welfare of patients, residents or clients of the provider and therefore neither issues a disapproval of eligibility for employment nor directs the provider to issue a disapproval, the provider may act on the application in its own discretion.

(3) Where the criminal history information of a prospective employee reveals a conviction for any crime other than one set forth in paragraph (2) of this subdivision, the department may, consistent with article 23-A of the Correction Law, propose disapproval of eligibility for employment.

(i) The department shall provide to the provider and the prospective employee, in writing, a summary of the prospective employee's criminal history information along with the notification identified in this paragraph. Upon the provider's receipt from the department of a notification of proposed disapproval of eligibility for employment, the provider shall not allow the prospective employee to provide direct care or supervision to patients, residents, or clients of such provider until receipt of a final determination from the department.

(ii) In cases where the department does not issue a disapproval of eligibility for employment, the provider may act on any application for employment in its own discretion, consistent with article 23-A of the Correction Law.

(4) Where the criminal history information of a prospective employee reveals a charge for any felony, the department shall hold the determination regarding a prospective employee's eligibility for employment in abeyance until the charge is finally resolved. Upon receipt of notification from the department of the abeyance, the provider shall not allow the prospective employee to provide direct care or supervision to patients, residents, or clients of such provider before final resolution of the criminal charge.

(5) Where the criminal history information of a prospective employee reveals a charge for any misdemeanor, the department may, after review of the severity of the misdemeanor, hold such determination in abeyance until the charge is finally resolved. If the department holds such determination in abeyance, the provider shall not allow, upon receipt of notification of such determination from the department, the prospective employee to provide direct care or supervision to patients, residents, or clients of such provider before final resolution of the criminal charge.

(b) Prior to making a final determination to disapprove a prospective employee's eligibility for employment pursuant to subdivision (a) of this section, the department shall afford the prospective employee an opportunity to explain in writing, within 30 calendar days from the date the notification was mailed to the prospective employee, why the prospective employee's eligibility for employment should not be disapproved. This notice shall be sent in a manner of mailing that is capable of verifying the date of mailing.

(c) Where the department directs a provider to disapprove eligibility for employment of a prospective employee, or terminate a temporarily approved prospective employee based on the criminal history information, the provider shall notify such prospective employee that such criminal history information is the basis of the disapproval. Such notification shall advise the prospective employee that a copy of the summary of the criminal history information provided by the department to the provider is available from the provider upon written request by the prospective employee.

(d) Documentation and confidentiality requirements.

(1) Only an authorized person(s) or his or her designee who shall be employed by the provider and the subject individual shall have access to criminal history information received by a provider pursuant to this Part. However, criminal history information may be disclosed by an authorized person(s) to other persons who directly participate in any decision by the provider with regard to such subject individual, to which this criminal history information is relevant.

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

(3) Any party who willfully permits the release of any confidential criminal history information obtained from a criminal history record check pursuant to this section to parties not authorized to receive it in accordance with article 28-E of the Public Health Law and section 845-b of the Executive Law shall be guilty of a misdemeanor pursuant to section 12-b of the Public Health Law.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 402.7