senate Bill S3016B

2011-2012 Legislative Session

Relates to the review of criminal history information of certain persons rendering community based services to individuals with mental illness or developmental disabilities

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 05, 2012 print number 3016b
amend and recommit to mental health and developmental disabilities
Jan 04, 2012 referred to mental health and developmental disabilities
returned to senate
died in assembly
Jun 14, 2011 referred to mental health
delivered to assembly
passed senate
Jun 13, 2011 ordered to third reading cal.1153
Jun 11, 2011 committee discharged and committed to rules
Jun 06, 2011 reported and committed to finance
Apr 18, 2011 print number 3016a
amend (t) and recommit to mental health and developmental disabilities
Apr 11, 2011 notice of committee consideration - withdrawn
Apr 04, 2011 notice of committee consideration - requested
Feb 07, 2011 referred to mental health and developmental disabilities

Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

S3016 - Bill Details

See Assembly Version of this Bill:
A8470A
Current Committee:
Law Section:
Mental Hygiene Law
Laws Affected:
Amd §31.35, Ment Hyg L; amd §845-b, Exec L
Versions Introduced in 2009-2010 Legislative Session:
S3484

S3016 - Bill Texts

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Relates to the review of criminal history information of certain persons rendering community based services to individuals with mental illness or developmental disabilities.

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BILL NUMBER:S3016 REVISED 04/08/11

TITLE OF BILL:
An act
to amend the mental hygiene law and the
executive law, in relation to the review of
criminal history information of certain
persons rendering community based services
to individuals with mental illness or mental
retardation and developmental disabilities

PURPOSE:
This bill would amend Mental Hygiene Law (MHL) § 31.35(a) and
Executive Law § 845-b to require criminal history record checks for
each prospective operator, employee, or volunteer of certain
providers of mental health or mental retardation and developmental
services who will have regular and substantial unsupervised or
unrestricted physical contact with clients of such providers.

SUMMARY OF PROVISIONS:
Section 1 of the bill would amend MHL § 31.35(a) to clarify that
criminal history background checks performed by the Office of Mental
Health (OMH) and the Office of People with Developmental Disabilities
(OPWDD) must include criminal history background checks for employees
of providers who receive funds from or are licensed or certified to
provide services to persons with mental illness or developmental
disabilities. In addition, § 1 would enable OMH to perform a criminal
history background check for any person over the age of 18 living in
a Family Care Home that was approved by OMH on or after April 1, 2009.

Section 2 of the bill would amend Executive Law § 845-b(1) (c) to
clarify that the term "criminal history information" includes
information obtained from the Federal Bureau of Investigation (FBI)
as a result of a national criminal history check for purposes of OMH
and OPWDD.

Section 2 of the bill would also amend Executive Law §§ 845-b(3) (a),
(b) and (c) to provide for the use of attestations by authorized
persons and to clarify that the attestation requirement may be
achieved through a single submission that is applicable to all
requests made by the authorized person. It further clarifies that
provisions applicable to FBI checks, which currently appear to apply
only to the Department of Health (DOH), also include OMH and OPWDD,
in accordance with Chapter 673 of the Laws of 2006, and makes
additional technical amendments in these paragraphs.

Section 2 of the bill would also amend Executive Law § 845-b(4) to
expand provisions applicable to the processing of FBI checks, which
currently apply only to DOH, to include OMH and OPWDD.

Section 2 of the bill would also amend Executive Law § 845-b(5) 10
establish provisions that enable the agencies to take appropriate
action, depending on the nature of the criminal history at issue,
while ensuring sufficient due process protections are afforded to the
provider.
This section would include amendments that would enable OMH and OPWDD


to take action in cases in which a natural person operator of a
family care home or family based treatment program, or a person over
the age of 18 residing in such home or program, have problematic
criminal histories. These amendments would provide OMH and OPWDD with
flexibility in cases in which an applicant has an outstanding charge
that does not
presumptively disqualify him or her from employment, but the
disposition of the charge cannot be readily ascertained.

Section 2 of the bill would also make a technical amendment to
Executive Law § 845-b(d) (5) to ensure that OMH and OPWDD have the
ability to directly contact any subject individual of a criminal
history background check and request' additional information in the
event that the individual's criminal history information is
incomplete or requires clarification.

Section 2 would also renumber and make technical, clarifying changes
to the criminal history background check processes to Executive Law
845-b(5) (e) and, (f), and would add a new paragraph (h) to make a
technical process clarification with respect to provisions requiring
OMH and OPWDD to send a written summary notifying a provider of a
subject individual's criminal history information.

This section would also repeal the opening sentence of Executive Law
845-b(6) and amend Executive Law § 845-b(11) (currently subdivision
10) The new subdivision 11 would be amended to remove the requirement
that the definition of "unsupervised physical contact with clients,"
to be defined in regulations promulgated by the authorizing agency,
must take into consideration the differences in the staffing patterns
of various service models and the supervision required to ensure the
safety of clients. This provision is no longer necessary, as
implementing regulations for the agencies are in effect.

Section 3 of the bill would take effect on the 180th day after it
shall become a law.

EXISTING LAW:
Chapter 643 of the Laws of 2003, as amended by Chapter 575 of the Laws
of 2004, requires criminal history record checks for each prospective
operator, employee, or volunteer of certain mental health treatment
providers who will have regular and substantial unsupervised or
unrestricted physical contact with the clients of such providers. OMH
and OPWDD are required to process these requests and to perform an
analysis pursuant to Correction Law Article 23-A with respect to the
results.
After undertaking such review, OMH and OPWDD are required to summarily
advise providers whether or not the applicant can be approved for
consideration. OMH and OPWDD are required to promulgate regulations
that establish the standards and procedures for such criminal history
record checks.

Chapter 673 of the Laws of 2006 amended these provisions and extended
the authority of OMH and OPWDD pursuant to Executive Law § 845-b to
request criminal history background information on a national level
from the FBI.


Chapter 331 of the Laws of 2006 amended Executive Law § 845-b to
authorize DOH to request both state and national criminal history
information.

LEGISLATIVE HISTORY:
2009-10: S.3484 - Passed in Senate.

This proposal represents part of a bill (S.7674/A.II035) which passed
the Senate and was referred to the Assembly Mental Health Committee.
In the 2009 Legislative Session, the proposal has been modified to
remove provisions that impacted State employees.

STATEMENT IN SUPPORT:
In April of 2005, OMH and OPWDD began processing requests for criminal
histories on behalf of local providers of mental hygiene, reviewing
them, and responding to providers with respect to the results of its
review. Over the course of implementation, several process questions
and concerns arose, the answers to which were not immediately clear
from the language of the statute. The proposed amendments are
intended, in large part, to clarify the answers to these process
questions to ensure effective implementation of the law's requirements.

Specifically, Chapter 575 requires that, for each criminal history
check requested by an authorized person, a notarized attestation must
be made indicating a number of elements designed to ensure that the
request is justified under the law. During the implementation of the
law, it became apparent that to require a notarized statement for
each request submitted was unduly onerous to providers. This bill
permits the use of a single attestation or affirmation from each
authorized provider signed under penalty of perjury, in lieu of a
notarized statement that indicates every request that it submits will
meet these applicable criteria.

In addition, the bill authorizes OMH to review criminal histories of
every person over the age of 18 residing in a family care home or a
family based treatment program. As currently enacted, OMH is only
able to review the histories of new operators of family care homes,
unlike OPWDD, which is authorized to review the operators of such
homes, as well as every person over the age of 18 living in the home.
As residents of family care homes and family based treatment programs
approved by OMH should have the same safety assurances as residents
of family care homes approved by OPWDD, this proposal would provide
consistent authority for both OMH and OPWDD.

Other changes are made in the bill to address the actions OMH and
OPWDD can take in the event that a natural person who operates a
family care home or, family-based treatment provider, or a person
over the age of 18 living in such home or program, has a problematic
criminal history.
Currently, it is not clear what options are available to OPWDD in
cases where a problematic criminal history is revealed with respect
to a person over the age of 18 who resides in the home. Furthermore,
as stated above, the law does not specifically indicate that OMH has
authority to obtain and review the criminal histories of a person
over the age of 18 who resides in a family care home or family based
treatment program. As a result, in most cases, OMH will not even know
if such a person has a problematic criminal background and may be


unable to take action in
the event it is learned that such a problematic history exists. These
amendments would address these issues, by establishing provisions
that enable the agencies to take appropriate action, depending on the
nature of the criminal history at issue, while ensuring that
sufficient due process protections are afforded to the provider.

The bill would also create additional flexibility for the agencies
with respect to situations in which a criminal history contains
charges for the commission of non-presumptive crimes that were placed
on the record ten or more years ago, but the agency is not reasonably
able to determine the disposition of such charges. Under current law,
all applications that contain charges for felonies must be held in
abeyance, and those with misdemeanors may be held in abeyance, until
such charges are resolved. Experimentally, the agencies. have
discovered that it is sometimes very difficult, if not impossible, to
obtain information from courts or other sources when trying to
resolve old charges. This creates particular problems for OPWDD,
because the only alternatives now available to a provider when an
application is placed in abeyance are to dismiss the individual or
ensure constant supervision of him or her. The proposal would allow
OMH or OPWDD to permit providers to make their own decisions with
respect to applicants who have charges for non-presumptive crimes on
their record, that are more than ten years old and the disposition of
which is not readily available, if a safety assessment is performed
and the provider determines that the individual
does not pose an unreasonable risk to its clients.

The bill also removes the requirement established in Chapter 575 that
the definition of "unsupervised contact," for purposes of temporary
approval, must take into consideration the differences in staffing
patterns of various service models and the supervision required to
ensure the safety of clients. This language was originally included
based on a fear that certain provider types with less "rich" staffing
patterns would be disadvantaged if their unique characteristics were
not considered. After taking such differences into consideration, OMH
and OPWDD promulgated regulations that established a definition of
this term, applicable to all service types, based on the notion that
a service recipient's need for safety should not be variable based
upon which service setting in which he or she was receiving care. The
definition has been working well, and no service types have been
significantly disadvantaged in this respect, because the prompt
turnaround times for criminal history reviews have diminished the
need to utilize the temporary approval option. Thus, this qualifying
language in the statute is not necessary.

Finally, Chapter 575 of the Laws of 2004 was further amended by
Chapter 673 of the Laws of 2006, which extended the authority of OMH
and OPWDD in Executive Law § 845-b to request criminal history
background information on a national level from the FBI. However,
also in 2006, Chapter 331 of the Laws of 2006 amended Executive Law
845-b to authorize QOH to request both State and national criminal
history information. However, the bills establishing these Chapters
were not reconciled, which has resulted in an awkwardly worded
statute. This proposal would amend Executive Law § 845-b so that it
is internally consistent, accurately reflects the roles and
responsibilities of each agency to which it applies with respect to


the receipt and distribution of information from the FBI, and
clarifies that the provisions unique to FBI information do not apply
only to DOH, but also to OMH and OPWDD.

This proposal also repeals the requirement that OMH, OPWOD and DOH
adhere to previous decisions in cases in which an employee already
cleared for employment leaves a particular employer and applies for
employment with another, when the criminal history is unchanged and
the circumstances of employment are substantially similar. This
provision fails to reflect current practices where FBI checks, unlike
New York State checks, do not provide for search and retain status to
allow for an individual's criminal history, once hired or retained,
to be continuously updated and sent to the authorized agencies. This
confounds the agencies' ability to obtain up-to-date federal
information on a subject individual's criminal history information.
While agencies should certainly be guided by a previous decision, a.
mandate to adhere to a previous determination is unduly onerous in
light of the new authority to conduct FBI checks, where the national
criminal history may have
changed, but the agency may not know it unless new FBI checks are
performed.

Authority for OMH and PWOD to request FBI checks was established by
Chapter 673 of the Laws of 2006, but the definition of "criminal
history information" was not amended in this legislation. An expanded
definition of "criminal history information" to include FBI checks
was included in Chapter 331 of the Laws of 2006, which extends this
authority to DOH with respect to nursing homes and home health care
service agencies. This amendment clarifies that the expanded
definition applies to OMH, and OPWW as well as DOH.

BUDGET IMPLICATIONS:
The proposal is expected to have a minimal fiscal impact. The
provision that adds persons over the age of 18 living in OMH family
care homes or family based treatment programs would only include a
very small pool of individuals whose histories must be obtained and
reviewed, and there would be extremely minimal associated costs in
implementing the background check process. OMH pays the fee for
criminal history background checks for its local providers, which
represents a cost of $99 (including both State and national checks)
per applicant.

EFFECTIVE DATE:
The bill would take effect 180 days after enactment.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3016

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 7, 2011
                               ___________

Introduced  by  Sen. HUNTLEY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities

AN ACT to amend the  mental  hygiene  law  and  the  executive  law,  in
  relation  to  the  review  of  criminal history information of certain
  persons rendering community based services to individuals with  mental
  illness or mental retardation and developmental disabilities

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision (a) of section 31.35 of the mental hygiene law,
as amended by chapter 575 of the laws of 2004, is  amended  to  read  as
follows:
  (a)  Every  provider  of  services  who contracts with, RECEIVES FUNDS
FROM, or is LICENSED, CERTIFIED, approved or IS otherwise authorized  by
the  office to provide services, except (1) a department facility, (2) a
hospital as defined in article twenty-eight of the public health law, or
(3) a licensed professional under title eight of the education  law  who
does not have employees or volunteers who will have regular and substan-
tial  unsupervised  or unrestricted physical contact with the clients of
such provider, and every applicant to be such  a  provider  of  services
except  (i) a department facility, (ii) a hospital as defined in article
twenty-eight of the public health law, or (iii) a licensed  professional
under  title  eight  of the education law who does not have employees or
volunteers who will have regular and substantial unsupervised  or  unre-
stricted  physical  contact  with  the  clients  of such provider, shall
request that the office check, and upon such request  the  office  shall
request and shall be authorized to receive from the division of criminal
justice services criminal history information, as such phrase is defined
in   paragraph   (c)   of  subdivision  one  of  section  eight  hundred
forty-five-b of the executive law, concerning each (A) prospective oper-
ator, employee or volunteer of such provider who will have  regular  and
substantial  unsupervised  or  unrestricted  physical  contact  with the
clients of such provider, OR (B) OTHER PERSON OVER THE AGE  OF  EIGHTEEN
WHO IS TO RESIDE IN A FAMILY CARE HOME OR FAMILY BASED TREATMENT PROGRAM

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03968-02-1

S. 3016                             2

APPROVED  BY  THE  OFFICE  ON OR AFTER APRIL FIRST, TWO THOUSAND ELEVEN,
EXCEPT ANY PERSON  RECEIVING  FAMILY  CARE  OR  FAMILY  BASED  TREATMENT
SERVICES,  WHO  WILL  HAVE REGULAR AND SUBSTANTIAL UNSUPERVISED OR UNRE-
STRICTED  PHYSICAL  CONTACT  WITH  THE  CLIENTS  OF  SUCH  PROVIDER. For
purposes of this section, "operator" shall include  any  natural  person
with an ownership interest in the provider of services.
  S  2.  Paragraph  (c) of subdivision 1, paragraphs (a), (b) and (c) of
subdivision 3 and subdivisions 4, 5, 6, 7,  8,  9,  10,  11  and  12  of
section  845-b  of  the  executive law, as amended by chapter 769 of the
laws of 2005, the closing paragraph of subparagraph (iii)  of  paragraph
(c)  of subdivision 3 as amended and paragraph (b-1) of subdivision 4 as
added by chapter 673 of the laws of 2006 and subdivisions  4  and  5  as
amended  by  chapter  331  of  the  laws of 2006, are amended to read as
follows:
  (c) "Criminal history information" means a record of pending  criminal
charges,  criminal  convictions  which  are not vacated or reversed, and
certificates filed pursuant to subdivision two of section seven  hundred
five  of  the  correction  law,  and which the division is authorized to
maintain pursuant to subdivision six of section  eight  hundred  thirty-
seven of this article. For the purposes of [criminal history information
checks  authorized  pursuant  to  article  twenty-eight-E  of the public
health law]  THIS  SECTION,  criminal  history  information  shall  also
include information from the federal bureau of investigation as a result
of a national criminal history record check.
  (a)  A  provider  authorized  to  request  a check of criminal history
information pursuant to subdivision two of this section shall  designate
one  OR  MORE  authorized [person] PERSONS, who shall request a check of
criminal history information on behalf of such provider pursuant to this
section and review the results  of  such  check.  Only  such  authorized
[person  or  his  or her designee] PERSONS and the subject individual to
whom such criminal history information relates shall have access to such
information;  provided,  however,  that  criminal  history   information
received by a provider may be disclosed to other persons who are direct-
ly  participating  in any decision in regard to such subject individual;
and provided, further, that such other persons shall also be subject  to
the  confidentiality  requirements  and  all  other  provisions  of this
section[.  In  the  case  of   requests   made   pursuant   to   article
twenty-eight-E  of  the public health law], 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  trans-
mitted to the provider. Each provider shall specifically identify to the
authorized  agency  in writing, in advance of disclosure, the authorized
person and each other such agent or employee  of  the  provider  who  is
authorized  to have access to the results of a check of criminal history
information pursuant to this section. Any person who  willfully  permits
the  release  of any confidential criminal history information contained
in the report to persons not permitted by this section to  receive  such
information shall be guilty of a misdemeanor.
  (b)  A  provider  requesting  a  check of criminal history information
pursuant to this section shall do so by completing  a  form  established
for such purpose by the authorized agency in consultation with the divi-
sion.  Such  form  shall  include  a  sworn  statement of the authorized
person, OR A STATEMENT SUBSCRIBED TO BY THE AUTHORIZED PERSON CONTAINING
AN AFFIRMATION OF SUCH PERSON THAT THE STATEMENTS THEREIN ARE TRUE UNDER
PENALTIES OF PERJURY, certifying OR AFFIRMING, AS APPLICABLE that:

S. 3016                             3

  (i) [the] EACH person for whose criminal history information  a  check
is requested [is] SHALL BE a subject individual for whom criminal histo-
ry information is available by law;
  (ii)  FOR  EACH  CRIMINAL HISTORY CHECK REQUESTED, the specific duties
which qualify the provider to request a check of criminal history infor-
mation SHALL BE IDENTIFIED;
  (iii) the results of [such] ANY  criminal  history  information  check
MADE  PURSUANT  TO  THIS SECTION will be used by the provider solely for
purposes authorized by law; and
  (iv) the provider and its agents and employees are aware of  and  will
abide  by  the  confidentiality requirements and all other provisions of
this article.
  (c) A provider authorized to request a  criminal  history  information
check  pursuant  to  this section may inquire of a subject individual in
the manner authorized by subdivision  sixteen  of  section  two  hundred
ninety-six  of  this  chapter.  Prior  to requesting such information, a
provider shall:
  (i) inform the subject individual in  writing  that  the  provider  is
authorized  or,  where applicable, required to request a check of his or
her criminal history information and review the results  of  such  check
pursuant to this section;
  (ii)  inform  the  subject  individual that he or she has the right to
obtain, review and seek correction of his or her criminal history infor-
mation under regulations and procedures established by the division  AND
THE FEDERAL BUREAU OF INVESTIGATION;
  (iii) obtain the signed, informed consent of the subject individual on
a  form  supplied  by  the  authorized  agency which indicates that such
person has:
  A. been informed of the right  and  procedures  necessary  to  obtain,
review and seek correction of his or her criminal history information;
  B. been informed of the reason for the request for his or her criminal
history information;
  C.  BEEN  INFORMED  THAT  THE CRIMINAL HISTORY INFORMATION SOUGHT WILL
INCLUDE BOTH A NEW YORK STATE AND A NATIONAL CRIMINAL  HISTORY  INFORMA-
TION CHECK;
  D. consented to such request for a report[; and
  D.]  WITH RESPECT TO BOTH NEW YORK STATE AND NATIONAL CRIMINAL HISTORY
INFORMATION; AND
  E. supplied on the form a current mailing or home address.
  Upon receiving such written consent, the  provider  shall  receive  or
obtain  [two sets of] THE fingerprints of such subject individual pursu-
ant to such regulations AND PROCEDURES as may be necessary to be  estab-
lished  by  the authorized agency in consultation with the division, and
promptly transmit them to the authorized agency.
  4. Procedures for criminal history information  checks  by  authorized
agencies. (a) The authorized agency shall pay the processing fee imposed
pursuant to subdivision eight-a of section eight hundred thirty-seven of
this  article,  and  [in  the  case of the authorized agency pursuant to
article twenty-eight-E of the public health law,] any fee imposed by the
federal bureau of investigation, and shall promptly submit  the  finger-
prints  and  the  processing fee to the division for its full search and
retain processing, and [in the case of the authorized agency pursuant to
article twenty-eight-E of the public health  law,]  the  division  shall
immediately  forward  the fingerprints to the federal bureau of investi-
gation for a national criminal  history  record  check.  The  authorized
agency  may charge a provider a fee in AN amount no greater than the fee

S. 3016                             4

established pursuant to law by the division for processing such a crimi-
nal history information check, in such amounts as may be established  by
the  authorized  agency  and approved by the director of the division of
the  budget, and [in the case of the authorized agency pursuant to arti-
cle twenty-eight-E of the public health law,] a fee no greater than  any
fee  imposed  by  the  federal bureau of investigation.  Nothing in this
section shall prohibit the authorized agency or provider  from  claiming
the cost of such fees and related costs, including administrative costs,
as a reimbursable cost under the medical assistance program, Medicare or
other payor, to the extent permitted by state and federal law.
  (b)  THE  AUTHORIZED  AGENCY IS AUTHORIZED TO RECEIVE CRIMINAL HISTORY
INFORMATION FROM THE DIVISION AND THE FEDERAL BUREAU  OF  INVESTIGATION,
AFTER THE RECEIPT OF A REQUEST PURSUANT TO THIS SECTION, IF SUCH REQUEST
IS:
  (I)  MADE PURSUANT TO A REQUEST BY AN AUTHORIZED PERSON ON BEHALF OF A
PROVIDER AUTHORIZED TO MAKE SUCH A REQUEST PURSUANT TO  SUBDIVISION  TWO
OF THIS SECTION;
  (II)  ACCOMPANIED  BY THE COMPLETED FORM DESCRIBED IN PARAGRAPH (B) OF
SUBDIVISION THREE OF THIS SECTION; AND
  (III) ACCOMPANIED BY FINGERPRINTS OF THE SUBJECT  INDIVIDUAL  OBTAINED
PURSUANT TO THIS SECTION.
  (C)  The  division  shall  promptly  provide  requested state criminal
history information to the authorized agency and,  [in  accordance  with
article  twenty-eight-E  of  the  public  health  law, the department of
health is authorized also to receive criminal history  information  from
the  federal  bureau  of  investigation,  after the receipt of a request
pursuant to this section if such request is:
  (i) made pursuant to a request by an authorized person on behalf of  a
provider  authorized  to make such a request pursuant to subdivision two
of this section;
  (ii) accompanied by the completed form described in this section; and
  (iii) accompanied by fingerprints of the subject  individual  obtained
pursuant to this section.
  (b-1)  The  division] ALSO shall promptly forward a set of the subject
individual's fingerprints to the federal bureau of investigation for the
purpose of a nationwide  criminal  history  record  check  to  determine
whether  such  applicant has been convicted of a criminal offense in any
state or federal jurisdiction. The division shall forward the results of
such nationwide search to the authorized agency in  the  same  form  and
manner  as the criminal history report created and provided by the divi-
sion pursuant to this section.
  [(c)] (D) Criminal history information provided by the division pursu-
ant to this section shall be furnished only by mail or other  method  of
secure  and  confidential  delivery, addressed to the authorized agency.
Such information and the envelope in which it is enclosed, if any, shall
be prominently marked "confidential", and shall at all  times  be  main-
tained by the authorized agency in a secure place.
  5.  After  reviewing  any criminal history information provided by the
division concerning a subject individual, the  authorized  agency  shall
take the following actions:
  (a)  Where the criminal history information concerning a subject indi-
vidual reveals a felony conviction at any time  for  a  sex  offense,  a
felony  conviction  FOR  ANY  CRIME  within the past ten 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 ANY COMPARABLE OFFENSE IN ANY   OTHER JURISDICTION; and  in  the

S. 3016                             5

case  of criminal history information obtained pursuant to section twen-
ty-eight hundred ninety-nine-a of the public health law, where the crim-
inal history information  concerning  a  subject  individual  reveals  a
conviction  at  any  time of any class A felony; a conviction within the
past ten years of any class B or C felony,  any  class  D  or  E  felony
defined  in  article one hundred twenty, one hundred thirty, one hundred
fifty-five, one hundred sixty, one hundred seventy-eight or two  hundred
twenty  of  the  penal  law;  or any crime defined in sections 260.32 or
260.34 of the penal law; or any comparable offense in any  other  juris-
diction[,];  the authorized agency shall deny or disapprove the applica-
tion for or renewal of the operating  certificate,  contract,  approval,
employment  of  the subject individual or other authorization to provide
services, or direct the provider  to  deny  employment,  as  applicable,
unless  the  authorized  agency  determines,  in  its  discretion,  that
approval of the application or renewal or employment will not in any way
jeopardize the health, safety or welfare of the  beneficiaries  of  such
services.
  (b)  Where the criminal history information concerning a subject indi-
vidual reveals a conviction for a crime other  than  one  set  forth  in
paragraph  (a)  of  this subdivision, the authorized agency may deny the
application or renewal, or direct the provider to deny employment of the
subject individual, [or approve or] disapprove the [prospective  employ-
ee's]  SUBJECT  INDIVIDUAL'S eligibility for employment by the provider,
OR VOLUNTEER SERVICE WITH A PROVIDER  OF  SERVICE  WHO  CONTRACTS  WITH,
RECEIVES FUNDS FROM, OR IS LICENSED, CERTIFIED, APPROVED OR IS OTHERWISE
AUTHORIZED  BY THE OFFICE OF MENTAL HEALTH OR THE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES, consistent with  article  twenty-three-A  of
the correction law.
  (c)  Where the criminal history information concerning a subject indi-
vidual reveals a charge for any felony, ANY CRIME  IDENTIFIED  IN  PARA-
GRAPH  (A) OF THIS SUBDIVISION, OR FOR ANY COMPARABLE OFFENSE IN ANOTHER
JURISDICTION, the authorized agency shall, and for any  misdemeanor,  OR
ANY  COMPARABLE  OFFENSE  IN ANOTHER JURISDICTION, the authorized agency
may hold the application, renewal or employment in  abeyance  until  the
charge is finally resolved[.], PROVIDED, HOWEVER, IF THE CRIMINAL HISTO-
RY  INFORMATION CONCERNING A SUBJECT INDIVIDUAL REVEALS A CHARGE FOR ANY
CRIME NOT IDENTIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, OR A COMPARA-
BLE OFFENSE IN ANOTHER JURISDICTION, WHICH IS MORE THAN  TEN  YEARS  OLD
AND  WHERE  INFORMATION  NECESSARY  TO RESOLVE THE CHARGE IS NOT READILY
AVAILABLE TO THE AUTHORIZED AGENCY, THE AUTHORIZED AGENCY MAY EITHER:
  (I) HOLD THE APPLICATION, RENEWAL, OR EMPLOYMENT IN ABEYANCE UNTIL THE
CHARGE IS FINALLY RESOLVED; OR
  (II) ADVISE THE PROVIDER OF SERVICES  THAT  IT  MAY  ACT  ON  ITS  OWN
DISCRETION,  IF  SUCH  PROVIDER  PERFORMS A SAFETY ASSESSMENT AND DETER-
MINES, CONSISTENT WITH ARTICLE TWENTY-THREE-A  OF  THE  CORRECTION  LAW,
THAT  APPROVAL  OF THE APPLICATION WILL NOT POSE AN UNREASONABLE RISK TO
THE HEALTH, SAFETY OR WELFARE OF THE BENEFICIARIES OF SUCH SERVICES.
  (d) WHERE THE SUBJECT INDIVIDUAL IS A NATURAL  PERSON  OPERATOR  OF  A
FAMILY  CARE  HOME  OR FAMILY BASED TREATMENT PROVIDER, OR A PERSON OVER
THE AGE OF EIGHTEEN WHO IS TO RESIDE, OR RESIDES, IN A FAMILY CARE  HOME
OR FAMILY BASED TREATMENT PROVIDER:
  (I)  IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS A CONVICTION FOR ANY CRIME IDENTIFIED IN PARAGRAPH (A) OF
THIS SUBDIVISION,  THE  AUTHORIZED  AGENCY  SHALL  PROMPTLY  ADVISE  THE
AUTHORIZED  PERSON  OF  THE  FAMILY  CARE HOME OR FAMILY BASED TREATMENT
PROVIDER THAT IT SHALL NOT PERMIT, OR MUST CEASE AND DESIST FROM PERMIT-

S. 3016                             6

TING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINUING  TO  RESIDE  IN
THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT PROVIDER, UNLESS
THE AUTHORIZED AGENCY DETERMINES THAT THE SUBJECT INDIVIDUAL WILL NOT IN
ANY  WAY  JEOPARDIZE  THE  HEALTH,  SAFETY,  OR WELFARE OF THE CLIENT OR
CLIENTS OF THE FAMILY CARE HOME  OR  FAMILY  BASED  TREATMENT  PROVIDER.
FAILURE  TO  COMPLY WITH THIS DIRECTIVE SHALL, AS APPLICABLE, CONSTITUTE
GROUNDS FOR DENIAL OF AN OPERATING CERTIFICATE OR REMOVAL OF THE OPERAT-
ING CERTIFICATE OF THE  FAMILY  CARE  HOME  OR  FAMILY  BASED  TREATMENT
PROGRAM  IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SIXTEEN OR THIRTY-
ONE OF THE MENTAL HYGIENE LAW; OR
  (II) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS A CONVICTION FOR ANY CRIME OTHER THAN ONE  IDENTIFIED  IN
PARAGRAPH  (A)  OF  THIS SUBDIVISION, THE AUTHORIZED AGENCY MAY PROMPTLY
ADVISE THE AUTHORIZED PERSON OF THE FAMILY CARE  HOME  OR  FAMILY  BASED
TREATMENT  PROVIDER  IT  SHALL NOT PERMIT, OR MUST CEASE AND DESIST FROM
PERMITTING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINUING TO RESIDE
IN THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT PROVIDER  IF,
AFTER  PERFORMING  A  SAFETY ASSESSMENT THE AUTHORIZED AGENCY DETERMINES
THAT THE SUBJECT INDIVIDUAL WILL NOT JEOPARDIZE THE HEALTH,  SAFETY,  OR
WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMILY BASED
TREATMENT  PROVIDER.  FAILURE  TO  COMPLY  WITH THIS DIRECTIVE SHALL, AS
APPLICABLE, CONSTITUTE GROUNDS FOR DENIAL OF AN  OPERATING  CERTIFICATE,
OR REMOVAL OF THE OPERATING CERTIFICATE OF THE FAMILY CARE HOME OR FAMI-
LY BASED TREATMENT PROVIDER IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR
  (III)  IF  THE  CRIMINAL  HISTORY  INFORMATION CONCERNING SUCH SUBJECT
INDIVIDUAL REVEALS AN OUTSTANDING CHARGE FOR  ANY  CRIME  IDENTIFIED  IN
PARAGRAPH  (A)  OF  THIS  SUBDIVISION,  THE  AUTHORIZED AGENCY SHALL, AS
APPLICABLE, HOLD THE APPLICATION FOR AN OPERATING CERTIFICATE  IN  ABEY-
ANCE UNTIL THE CHARGE IS RESOLVED, OR REQUIRE A SAFETY ASSESSMENT OF THE
FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER TO BE PERFORMED, AND
SHALL  DIRECT THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER OF
ANY ACTIONS THAT MUST BE TAKEN TO ENSURE  THAT  THE  SUBJECT  INDIVIDUAL
WILL  NOT  IN  ANY  WAY JEOPARDIZE THE HEALTH, SAFETY, OR WELFARE OF THE
CLIENT OR CLIENTS OF THE FAMILY CARE  HOME  OR  FAMILY  BASED  TREATMENT
PROVIDER.  FAILURE TO PROMPTLY IMPLEMENT SUCH ACTIONS BY THE FAMILY CARE
HOME OR FAMILY BASED TREATMENT PROVIDER  SHALL  CONSTITUTE  GROUNDS  FOR
REMOVAL  OF  ITS OPERATING CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS
OF ARTICLE SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR
  (IV) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS AN OUTSTANDING CHARGE FOR ANY CRIME OTHER THAN ONE  IDEN-
TIFIED  IN PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY MAY,
AS APPLICABLE, HOLD THE APPLICATION  FOR  AN  OPERATING  CERTIFICATE  IN
ABEYANCE OR REQUIRE A SAFETY ASSESSMENT OF THE FAMILY CARE HOME OR FAMI-
LY  BASED  TREATMENT PROVIDER TO BE PERFORMED, AND MAY DIRECT THE FAMILY
CARE HOME OR FAMILY CARE TREATMENT PROVIDER OF ANY ACTIONS THAT MUST  BE
TAKEN  TO  ENSURE  THAT  THE  SUBJECT INDIVIDUAL WILL NOT JEOPARDIZE THE
HEALTH, SAFETY, OR WELFARE OF THE CLIENT OR CLIENTS OF THE  FAMILY  CARE
HOME  OR  FAMILY BASED TREATMENT PROVIDER. FAILURE TO PROMPTLY IMPLEMENT
SUCH ACTIONS BY THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER,
IF DIRECTED TO DO SO, SHALL CONSTITUTE GROUNDS FOR REMOVAL OF ITS  OPER-
ATING  CERTIFICATE  IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SIXTEEN
OR THIRTY-ONE OF THE MENTAL HYGIENE LAW.
  (E) Prior to  making  a  determination  to  deny  an  application  [or
renewal,]  or  directing  [an employer] A PROVIDER to deny employment OR
VOLUNTEER SERVICE, the authorized agency shall afford the subject  indi-

S. 3016                             7

vidual an opportunity to explain, in writing, why the application should
not  be  denied.    IN  ITS  DISCRETION,  THE AUTHORIZED AGENCY MAY ALSO
DIRECTLY CONTACT A SUBJECT INDIVIDUAL FOR ADDITIONAL INFORMATION IN  THE
EVENT HIS OR HER CRIMINAL HISTORY INFORMATION REQUIRES CLARIFICATION.
  [(e)]  (F) Upon receipt of criminal history information from the divi-
sion, the authorized agency may request, and is [entitled] AUTHORIZED to
receive, information pertaining to any crime identified in such criminal
history information from any state  or  local  law  enforcement  agency,
district  attorney,  parole  officer, probation officer or court for the
purposes of determining whether any ground relating to such crime exists
for  denying  an  application,  renewal,  or  employment,  AND  PROVIDED
FURTHER, THAT WITH RESPECT TO CRIMES COMMITTED IN THE STATE OF NEW YORK,
SUCH AUTHORIZED AGENCY IS ENTITLED TO RECEIVE SUCH INFORMATION.
  [(f)]  (G)  The authorized agency shall thereafter promptly notify the
provider concerning whether its check has revealed any criminal  history
information,  and  if  so,  what  actions  shall  or may be taken by the
authorized agency and the provider. SUCH NOTIFICATION  SHALL  INCLUDE  A
WRITTEN  SUMMARY BY THE AUTHORIZED AGENCY OF THE CRIMINAL HISTORY INFOR-
MATION PROVIDED BY THE DIVISION AND/OR THE FEDERAL  BUREAU  OF  INVESTI-
GATION.  THE WRITTEN SUMMARY SHALL INCLUDE A NOTATION OF ANY OUTSTANDING
CHARGES, IF ANY, ABOUT WHICH THE AUTHORIZED AGENCY IS  AWAITING  FURTHER
INFORMATION  CONCERNING  THE  FINAL  DISPOSITION  OF  SUCH  CHARGES. THE
AUTHORIZED AGENCY SHALL SUPPLEMENT SUCH NOTIFICATION WHEN THE AUTHORIZED
AGENCY RECEIVES INFORMATION FROM THE  DIVISION  RELATING  TO  A  SUBJECT
INDIVIDUAL AS PART OF THE SEARCH AND RETAIN PROCESSING CONDUCTED BY SUCH
DIVISION  OR WHEN THE AUTHORIZED AGENCY RECEIVES INFORMATION RELATIVE TO
THE FINAL DISPOSITION OF AN OUTSTANDING CHARGE.
  [(g) Where the authorized agency denies the application for or renewal
of an operating certificate, contract, approval or  other  authorization
to  provide  services,  or  directs a provider to deny employment of the
subject individual on  account  of  the  subject  individual's  criminal
history  information,  the  notification  by the authorized agency shall
include a summary of the criminal history information  provided  by  the
division.]
  (h) IN THE EVENT THAT THE INFORMATION OBTAINED BY THE AUTHORIZED AGEN-
CY  FROM  THE  DIVISION AND/OR THE FEDERAL BUREAU OF INVESTIGATION INDI-
CATES THAT EITHER  ENTITY  HAS  NO  CRIMINAL  HISTORY  INFORMATION  WITH
RESPECT  TO  THE  SUBJECT INDIVIDUAL, THE AUTHORIZED AGENCY SHALL NOTIFY
THE PROVIDER THAT SUCH INDIVIDUAL HAS NO  CRIMINAL  HISTORY  INFORMATION
RECORD.
  (I)  Where the authorized agency directs a provider to deny employment
OR VOLUNTEER SERVICE based on criminal history information, the provider
must notify the subject individual that such information is the basis of
the denial.  WHERE THE AUTHORIZED AGENCY DENIES THE ISSUANCE OF AN OPER-
ATING CERTIFICATE, CONTRACT, APPROVAL OR OTHER AUTHORIZATION TO  PROVIDE
SERVICES  BASED  ON  CRIMINAL HISTORY INFORMATION, THE AUTHORIZED AGENCY
MUST NOTIFY THE SUBJECT INDIVIDUAL THAT SUCH INFORMATION IS THE BASIS OF
THE DENIAL.
  6. [Upon request from an employee who has  already  been  cleared  for
employment by an authorized agency and who subsequently leaves a partic-
ular  employer  and applies for employment with another, the authorizing
agency shall adhere to its  previous  authorization  when  the  criminal
history information is unchanged and the circumstances of employment are
substantially similar for the purposes of this section.
  7.] Any criminal history information provided by the division, and any
summary  of  the criminal history information provided by the authorized

S. 3016                             8

agency to [an employer] A PROVIDER pursuant to this section is confiden-
tial and shall not be available for public inspection; provided,  howev-
er,  nothing  in  this subdivision shall prevent an authorized agency or
provider from disclosing criminal history information at any administra-
tive  or  judicial proceeding relating to the denial or revocation of an
application, employment, license or registration. Where  the  authorized
agency  denies  the  application  for or renewal of an operating certif-
icate, contract, approval or other authorization to provide services, or
directs a provider to  deny  employment  OR  VOLUNTEER  SERVICE  of  the
subject  individual,  the  subject  of  the criminal history information
check conducted pursuant to this section shall be entitled  to  receive,
upon  written  request,  a  copy  of the summary of the criminal history
information provided by the authorized agency to the  provider,  IF  ANY
SUCH SUMMARY WAS SO PROVIDED.
  [8.]  7.  A provider shall advise the authorized agency when a subject
individual is no longer subject to such  check.  The  authorized  agency
shall inform the division when a subject individual is no longer subject
to  such  check so that the division may terminate its retain processing
with regard to such individual. At least once  a  year,  the  authorized
agency  shall  be  required to conduct a validation of the records main-
tained by the division, including information obtained from the  federal
bureau  of  investigation  [pursuant  to  article  twenty-eight-E of the
public health law] and provide such results to the authorized agency for
purposes of updating the  permanent  record  of  such  criminal  history
information results.
  [9.]  8.  Provided  that an authorized agency or a provider reasonably
and in good faith complies with the provisions of  this  section,  there
shall  be  no criminal or civil liability on the part of and no cause of
action for damages shall accrue against any authorized agency,  provider
or  employee thereof on account of, arising out of or relating to crimi-
nal history information pursuant to this section, or any act or omission
relating to criminal history information pursuant to this section.
  [10.] 9. Fingerprints  received  by  the  division  pursuant  to  this
section  shall be used only to assist the division in providing criminal
history information to authorized agencies under this section.
  [11.] 10. An authorized agency or provider authorized to request crim-
inal history  information  pursuant  to  this  section  may  temporarily
approve  an applicant while the results of the criminal history informa-
tion check are pending, so long as such person does  not  have  unsuper-
vised  physical contact with clients, as shall be defined by the author-
ized agency pursuant to regulation;  provided  however,  that  providers
subject  to  the  provisions  of subdivision ten of section twenty-eight
hundred ninety-nine-a of the public health law shall be subject  to  the
supervision requirements provided therein. [Such regulation shall recog-
nize  the differences in the staffing patterns of various service models
and the supervision required to ensure the safety of clients.
  12.] 11. The authorized agency in consultation with  the  commissioner
shall  promulgate  any  rules and regulations necessary to implement the
provisions of this section, which shall  include  convenient  procedures
for  persons  to  promptly  verify  the accuracy of their NEW YORK STATE
criminal history information and, to the extent authorized  by  law,  to
have access to relevant documents related thereto.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

Co-Sponsors

S3016A - Bill Details

See Assembly Version of this Bill:
A8470A
Current Committee:
Law Section:
Mental Hygiene Law
Laws Affected:
Amd §31.35, Ment Hyg L; amd §845-b, Exec L
Versions Introduced in 2009-2010 Legislative Session:
S3484

S3016A - Bill Texts

view summary

Relates to the review of criminal history information of certain persons rendering community based services to individuals with mental illness or developmental disabilities.

view sponsor memo
BILL NUMBER:S3016A

TITLE OF BILL:
An act
to amend the mental hygiene law and the
executive law, in relation to the review of
criminal history information of certain
persons rendering community based services
to individuals with mental illness or
developmental disabilities

PURPOSE:
This bill would amend Mental Hygiene Law (MHL) § 31.35(a) and
Executive Law § 845-b to require criminal history record checks for
each prospective operator, employee, or volunteer of certain
providers of mental health or developmental disabilities services who
will have regular and substantial unsupervised or unrestricted
physical contact with clients of such providers.

SUMMARY OF PROVISIONS:
Section 1 of the bill would amend MHL § 31.35(a) to clarify that
criminal history background checks performed by the Office of Mental
Health (OMH) and the Office of People with Developmental Disabilities
(OPWDD) must include criminal history background checks for employees
of providers who receive funds from or are licensed or certified to
provide services to persons with mental illness or developmental
disabilities.
In addition, § 1 would enable OMH to perform a criminal history
background check for any person over the age of 18 living in a Family
Care Home that was approved by OMH on or after April 1, 2009.

Section 2 of the bill would amend Executive Law § 845-b(1) (c) to
clarify that the term "criminal history information" includes
information obtained from the Federal Bureau of Investigation (FBI)
as a result of a national criminal history check for purposes of OMH
and OPWDD.

Section 2 of the bill would also amend Executive Law §§ 845-b(3)(a),
(b) and (c) to provide for the use of attestations by authorized
persons and to clarify that the attestation requirement may be
achieved through a single submission that is applicable to all
requests made by the authorized person. It further clarifies that
provisions applicable to FBI checks, which currently appear to apply
only to the Department of Health (DOH), also include OMH and OPWDD,
in accordance with Chapter 673 of the Laws of 2006, and makes
additional technical amendments in these paragraphs.

Section 2 of the bill would also amend Executive Law § 845-b(4) to
expand provisions applicable to the processing of FBI checks, which
currently apply only to DOH, to include OMH and OPWDD.

Section 2 of the bill would also amend Executive Law § 845-b(5) 10
establish provisions that enable the agencies to take appropriate
action, depending on the nature of the criminal history at issue,
while ensuring sufficient due process protections are afforded to the
provider. This section would include amendments that would enable OMH


and OPWDD to take action in cases in which a natural person operator
of a family care home or family based treatment program, or a person
over the age of 18 residing in such home or program, have problematic
criminal histories. These amendments would provide OMH and OPWDD with
flexibility in cases in which an applicant has an outstanding charge
that does not
presumptively disqualify him or her from employment, but the
disposition of the charge cannot be readily ascertained.

Section 2 of the bill would also make a technical amendment to
Executive Law § 845-b(d) (5) to ensure that OMH and OPWDD have the
ability to directly contact any subject individual of a criminal
history background check and request' additional information in the
event that the individual's criminal history information is
incomplete or requires clarification.

Section 2 would also renumber and make technical, clarifying changes
to the criminal history background check processes to Executive Law
845-b(5) (e) and, (f), and would add a new paragraph (h) to make a
technical process clarification with respect to provisions requiring
OMH and OPWDD to send a written summary notifying a provider of a
subject individual's criminal history information.

This section would also repeal the opening sentence of Executive Law
845-b(6) and amend Executive Law § 845-b(11) (currently subdivision
10). The new subdivision 11 would be amended to remove the
requirement that the definition of "unsupervised physical contact
with clients," to be defined in regulations promulgated by the
authorizing agency, must take into consideration the differences in
the staffing patterns of various service models and the supervision
required to ensure the safety of clients. This provision is no
longer necessary, as implementing regulations for the agencies are
in effect.

Section 3 of the bill would take effect on the 180th day after it
shall become a law.

EXISTING LAW:
Chapter 643 of the Laws of 2003, as amended by Chapter 575 of the Laws
of 2004, requires criminal history record checks for each prospective
operator, employee, or volunteer of certain mental health treatment
providers who will have regular and substantial unsupervised or
unrestricted physical contact with the clients of such providers. OMH
and OPWDD are required to process these requests and to perform an
analysis pursuant to Correction Law Article 23-A with respect to the
results.
After undertaking such review, OMH and OPWDD are required to summarily
advise providers whether or not the applicant can be approved for
consideration. OMH and OPWDD are required to promulgate regulations
that establish the standards and procedures for such criminal history
record checks.

Chapter 673 of the Laws of 2006 amended these provisions and extended
the authority of OMH and OPWDD pursuant to Executive Law § 845-b to
request criminal history background information on a national level
from the FBI.


Chapter 331 of the Laws of 2006 amended Executive Law § 845-b to
authorize DOH to request both state and national criminal history
information.

LEGISLATIVE HISTORY:
2009-10: S.3484 - Passed in Senate.

This proposal represents part of a bill (S.7674/A.11035) which passed
the Senate and was referred to the Assembly Mental Health Committee. In
the 2009 Legislative Session, the proposal has been modified to remove
provisions that impacted State employees.

STATEMENT IN SUPPORT:
In April of 2005, OMH and OPWDD began processing requests for criminal
histories on behalf of local providers of mental hygiene, reviewing
them, and responding to providers with respect to the results of its
review. Over the course of implementation, several process questions
and concerns arose, the answers to which were not immediately clear
from the language of the statute. The proposed amendments are
intended, in large part, to clarify the answers to these process
questions to ensure effective implementation of the law's requirements.

Specifically, Chapter 575 requires that, for each criminal history
check requested by an authorized person, a notarized attestation must
be made indicating a number of elements designed to ensure that the
request is justified under the law. During the implementation of the
law, it became apparent that to require a notarized statement for
each request submitted was unduly onerous to providers. This bill
permits the use of a single attestation or affirmation from each
authorized provider signed under penalty of perjury, in lieu of a
notarized statement that indicates every request that it submits will
meet these applicable criteria.

In addition, the bill authorizes OMH to review criminal histories of
every person over the age of 18 residing in a family care home or a
family based treatment program. As currently enacted, OMH is only
able to review the histories of new operators of family care homes,
unlike OPWDD, which is authorized to review the operators of such
homes, as well as every person over the age of 18 living in the home.
As residents of family care homes and family based treatment programs
approved by OMH should have the same safety assurances as residents
of family care homes approved by OPWDD, this proposal would provide
consistent authority for both OMH and OPWDD.

Other changes are made in the bill to address the actions OMH and
OPWDD can take in the event that a natural person who operates a
family care home or, family-based treatment provider, or a person
over the age of 18 living in such home or program, has a problematic
criminal history.
Currently, it is not clear what options are available to OPWDD in
cases where a problematic criminal history is revealed with respect
to a person over the age of 18 who resides in the home. Furthermore,
as stated above, the law does not specifically indicate that OMH has
authority
to obtain and review the criminal histories of a person over the age
of 18 who resides in a family care home or family based treatment
program. As a result, in most cases, OMH will not even know if such a


person has a problematic criminal background and may be unable to
take action in the event it is learned that such a problematic
history exists. These amendments would address these issues, by
establishing provisions that enable the agencies to take appropriate
action, depending on the nature of the criminal history at issue,
while ensuring that sufficient due process protections are afforded
to the provider.

The bill would also create additional flexibility for the agencies
wit.h respect to situations in which a criminal history contains
charges for the commission of non-presumptive crimes that were placed
on the record ten or more years ago, but the agency is not reasonably
able to determine the disposition of such charges. Under current law,
all applications that contain charges for felonies must be held in
abeyance, and those with misdemeanors may be held in abeyance, until
such charges are resolved. Experimentally, the agencies. have
discovered that it is sometimes very difficult, if not impossible, to
obtain information from courts or other sources when trying to
resolve old charges. This creates particular problems for OPWDD,
because the only alternatives now available to a provider when an
application is placed in abeyance are to dismiss the individual or
ensure constant supervision of him or her. The proposal would allow
OMH or OPWDD to permit providers to make their own decisions with
respect to applicants who have charges for non-presumptive crimes on
their record, that are more than ten years old and the disposition of
which is not readily available, if a safety assessment is performed
and the provider determines that the individual
does not pose an unreasonable risk to its clients.

The bill also removes the requirement established in Chapter 575 that
the definition of "unsupervised contact," for purposes of temporary
approval, must take into consideration the differences in staffing
patterns of various service models and the supervision required to
ensure the safety of clients. This language was originally included
based on a fear that certain provider types with less "rich" staffing
patterns would be disadvantaged if their unique characteristics were
not considered. After taking such differences into consideration, OMH
and OPWDD promulgated regulations that established a definition of
this term, applicable to all service types, based on the notion that
a service recipient's need for safety should not be variable based
upon which service setting in which he or she was receiving care. The
definition has been working well, and no service types have been
significantly disadvantaged in this respect, because the prompt
turnaround times for criminal history reviews have diminished the
need to utilize the temporary approval option. Thus, this qualifying
language in the statute is not necessary.

Finally, Chapter 575 of the Laws of 2004 was further amended by
Chapter 673 of the Laws of 2006, which extended the authority of OMH
and OPWDD in Executive Law § 845-b to request criminal history
background information on a national level from the FBI. However,
also in 2006, Chapter 331 of the Laws of 2006 amended Executive Law
§845-b to authorize QOH to request both State and national criminal
history information. However, the bills establishing these Chapters
were not reconciled, which has resulted in an awkwardly worded
statute. This proposal would amend Executive Law § 845-b so that it
is internally consistent, accurately


reflects the roles and responsibilities of each agency to which it
applies with respect to the receipt and distribution of information
from the FBI, and clarifies that the provisions unique to FBI
information do not apply only to DOH, but also to OMH and OPWDD.

This proposal also repeals the requirement that OMH, OPWDD and DOH
adhere to previous decisions in cases in which an employee already
cleared for employment leaves a particular employer and applies for
employment with another, when the criminal history is unchanged and
the circumstances of employment are substantially similar. This
provision fails to reflect current practices where FBI checks, unlike
New York State checks, do not provide for search and retain status to
allow for an individual's criminal history, once hired or retained,
to be continuously updated and sent to the authorized agencies. This
confounds the agencies' ability to obtain up-to-date federal
information on a subject individual's criminal history information.
While agencies should certainly be guided by a previous decision, a.
mandate to adhere to a previous determination is unduly onerous in
light of the new authority to conduct FBI cheeks, where the national
criminal history may have changed, but the agency may not know it
unless new FBI checks are performed.

Authority for OMH and OPWDD to request FBI checks was established by
Chapter 673 of the Laws of 2006, but the definition of "criminal
history information" was not amended in this legislation. An expanded
definition of "criminal history information" to include FBI checks
was included in Chapter 331 of the Laws of 2006, which extends this
authority to DOH with respect to nursing homes and home health care
service agencies. This amendment clarifies that the expanded
definition applies to OMH, and OPWDD as well as DOH.

BUDGET IMPLICATIONS:
The proposal is expected to have a minimal fiscal impact. The
provision that adds persons over the age of 18 living in OMH family
care homes or family based treatment programs would only include a
very small pool of individuals whose histories must be obtained and
reviewed, and there would be extremely minimal associated costs in
implementing the background check process. OMH pays the fee for
criminal history background checks for its local providers, which
represents a cost of $99 (including both State and national checks)
per applicant.

EFFECTIVE DATE:
The bill would take effect 180 days after enactment.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3016--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 7, 2011
                               ___________

Introduced  by  Sen. HUNTLEY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities -- committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to  amend  the  mental  hygiene  law  and the executive law, in
  relation to the review of  criminal  history  information  of  certain
  persons  rendering community based services to individuals with mental
  illness or developmental disabilities

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision (a) of section 31.35 of the mental hygiene law,
as  amended  by  chapter  575 of the laws of 2004, is amended to read as
follows:
  (a) Every provider of services  who  contracts  with,  RECEIVES  FUNDS
FROM,  or is LICENSED, CERTIFIED, approved or IS otherwise authorized by
the office to provide services, except (1) a department facility, (2)  a
hospital as defined in article twenty-eight of the public health law, or
(3)  a  licensed professional under title eight of the education law who
does not have employees or volunteers who will have regular and substan-
tial unsupervised or unrestricted physical contact with the  clients  of
such  provider,  and  every  applicant to be such a provider of services
except (i) a department facility, (ii) a hospital as defined in  article
twenty-eight  of the public health law, or (iii) a licensed professional
under title eight of the education law who does not  have  employees  or
volunteers  who  will have regular and substantial unsupervised or unre-
stricted physical contact with  the  clients  of  such  provider,  shall
request  that  the  office check, and upon such request the office shall
request and shall be authorized to receive from the division of criminal
justice services criminal history information, as such phrase is defined
in  paragraph  (c)  of  subdivision  one  of   section   eight   hundred
forty-five-b of the executive law, concerning each (A) prospective oper-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03968-03-1

S. 3016--A                          2

ator,  employee  or volunteer of such provider who will have regular and
substantial unsupervised  or  unrestricted  physical  contact  with  the
clients  of  such provider, OR (B) OTHER PERSON OVER THE AGE OF EIGHTEEN
WHO IS TO RESIDE IN A FAMILY CARE HOME OR FAMILY BASED TREATMENT PROGRAM
APPROVED  BY  THE  OFFICE  ON OR AFTER APRIL FIRST, TWO THOUSAND ELEVEN,
EXCEPT ANY PERSON  RECEIVING  FAMILY  CARE  OR  FAMILY  BASED  TREATMENT
SERVICES,  WHO  WILL  HAVE REGULAR AND SUBSTANTIAL UNSUPERVISED OR UNRE-
STRICTED PHYSICAL  CONTACT  WITH  THE  CLIENTS  OF  SUCH  PROVIDER.  For
purposes  of  this  section, "operator" shall include any natural person
with an ownership interest in the provider of services.
  S 2. Paragraph (c) of subdivision 1, paragraphs (a), (b)  and  (c)  of
subdivision  3  and  subdivisions  4,  5,  6,  7, 8, 9, 10, 11 and 12 of
section 845-b of the executive law, as amended by  chapter  769  of  the
laws  of  2005, the closing paragraph of subparagraph (iii) of paragraph
(c) of subdivision 3 as amended and paragraph (b-1) of subdivision 4  as
added  by  chapter  673  of the laws of 2006 and subdivisions 4 and 5 as
amended by chapter 331 of the laws of  2006,  are  amended  to  read  as
follows:
  (c)  "Criminal history information" means a record of pending criminal
charges, criminal convictions which are not  vacated  or  reversed,  and
certificates  filed pursuant to subdivision two of section seven hundred
five of the correction law, and which  the  division  is  authorized  to
maintain  pursuant  to  subdivision six of section eight hundred thirty-
seven of this article. For the purposes of [criminal history information
checks authorized pursuant  to  article  twenty-eight-E  of  the  public
health  law]  THIS  SECTION,  criminal  history  information  shall also
include information from the federal bureau of investigation as a result
of a national criminal history record check.
  (a) A provider authorized to  request  a  check  of  criminal  history
information  pursuant to subdivision two of this section shall designate
one OR MORE authorized [person] PERSONS, who shall request  a  check  of
criminal history information on behalf of such provider pursuant to this
section  and  review  the  results  of  such check. Only such authorized
[person or his or her designee] PERSONS and the  subject  individual  to
whom such criminal history information relates shall have access to such
information;   provided,  however,  that  criminal  history  information
received by a provider may be disclosed to other persons who are direct-
ly participating in any decision in regard to such  subject  individual;
and  provided, further, that such other persons shall also be subject to
the confidentiality  requirements  and  all  other  provisions  of  this
section[.   In   the   case   of   requests  made  pursuant  to  article
twenty-eight-E of the public health law], 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 trans-
mitted to the provider. Each provider shall specifically identify to the
authorized agency in writing, in advance of disclosure,  the  authorized
person  and  each  other  such  agent or employee of the provider who is
authorized to have access to the results of a check of criminal  history
information  pursuant  to this section. Any person who willfully permits
the release of any confidential criminal history  information  contained
in  the  report to persons not permitted by this section to receive such
information shall be guilty of a misdemeanor.
  (b) A provider requesting a  check  of  criminal  history  information
pursuant  to  this  section shall do so by completing a form established
for such purpose by the authorized agency in consultation with the divi-

S. 3016--A                          3

sion. Such form shall  include  a  sworn  statement  of  the  authorized
person, OR A STATEMENT SUBSCRIBED TO BY THE AUTHORIZED PERSON CONTAINING
AN AFFIRMATION OF SUCH PERSON THAT THE STATEMENTS THEREIN ARE TRUE UNDER
PENALTIES OF PERJURY, certifying OR AFFIRMING, AS APPLICABLE that:
  (i)  [the]  EACH person for whose criminal history information a check
is requested [is] SHALL BE a subject individual for whom criminal histo-
ry information is available by law;
  (ii) FOR EACH CRIMINAL HISTORY CHECK REQUESTED,  the  specific  duties
which qualify the provider to request a check of criminal history infor-
mation SHALL BE IDENTIFIED;
  (iii)  the  results  of  [such] ANY criminal history information check
MADE PURSUANT TO THIS SECTION will be used by the  provider  solely  for
purposes authorized by law; and
  (iv)  the  provider and its agents and employees are aware of and will
abide by the confidentiality requirements and all  other  provisions  of
this article.
  (c)  A  provider  authorized to request a criminal history information
check pursuant to this section may inquire of a  subject  individual  in
the  manner  authorized  by  subdivision  sixteen of section two hundred
ninety-six of this chapter. Prior  to  requesting  such  information,  a
provider shall:
  (i)  inform  the  subject  individual  in writing that the provider is
authorized or, where applicable, required to request a check of  his  or
her  criminal  history  information and review the results of such check
pursuant to this section;
  (ii) inform the subject individual that he or she  has  the  right  to
obtain, review and seek correction of his or her criminal history infor-
mation  under regulations and procedures established by the division AND
THE FEDERAL BUREAU OF INVESTIGATION;
  (iii) obtain the signed, informed consent of the subject individual on
a form supplied by the  authorized  agency  which  indicates  that  such
person has:
  A.  been  informed  of  the  right and procedures necessary to obtain,
review and seek correction of his or her criminal history information;
  B. been informed of the reason for the request for his or her criminal
history information;
  C. BEEN INFORMED THAT THE CRIMINAL  HISTORY  INFORMATION  SOUGHT  WILL
INCLUDE  BOTH  A NEW YORK STATE AND A NATIONAL CRIMINAL HISTORY INFORMA-
TION CHECK;
  D. consented to such request for a report[; and
  D.] WITH RESPECT TO BOTH NEW YORK STATE AND NATIONAL CRIMINAL  HISTORY
INFORMATION; AND
  E. supplied on the form a current mailing or home address.
  Upon  receiving  such  written  consent, the provider shall receive or
obtain [two sets of] THE fingerprints of such subject individual  pursu-
ant  to such regulations AND PROCEDURES as may be necessary to be estab-
lished by the authorized agency in consultation with the  division,  and
promptly transmit them to the authorized agency.
  4.  Procedures  for  criminal history information checks by authorized
agencies. (a) The authorized agency shall pay the processing fee imposed
pursuant to subdivision eight-a of section eight hundred thirty-seven of
this article, and [in the case of  the  authorized  agency  pursuant  to
article twenty-eight-E of the public health law,] any fee imposed by the
federal  bureau  of investigation, and shall promptly submit the finger-
prints and the processing fee to the division for its  full  search  and
retain processing, and [in the case of the authorized agency pursuant to

S. 3016--A                          4

article  twenty-eight-E  of  the  public health law,] the division shall
immediately forward the fingerprints to the federal bureau  of  investi-
gation  for  a  national  criminal  history record check. The authorized
agency  may charge a provider a fee in AN amount no greater than the fee
established pursuant to law by the division for processing such a crimi-
nal history information check, in such amounts as may be established  by
the  authorized  agency  and approved by the director of the division of
the budget, and [in the case of the authorized agency pursuant to  arti-
cle  twenty-eight-E of the public health law,] a fee no greater than any
fee imposed by the federal bureau of investigation.    Nothing  in  this
section  shall  prohibit the authorized agency or provider from claiming
the cost of such fees and related costs, including administrative costs,
as a reimbursable cost under the medical assistance program, Medicare or
other payor, to the extent permitted by state and federal law.
  (b) THE AUTHORIZED AGENCY IS AUTHORIZED TO  RECEIVE  CRIMINAL  HISTORY
INFORMATION  FROM  THE DIVISION AND THE FEDERAL BUREAU OF INVESTIGATION,
AFTER THE RECEIPT OF A REQUEST PURSUANT TO THIS SECTION, IF SUCH REQUEST
IS:
  (I) MADE PURSUANT TO A REQUEST BY AN AUTHORIZED PERSON ON BEHALF OF  A
PROVIDER  AUTHORIZED  TO MAKE SUCH A REQUEST PURSUANT TO SUBDIVISION TWO
OF THIS SECTION;
  (II) ACCOMPANIED BY THE COMPLETED FORM DESCRIBED IN PARAGRAPH  (B)  OF
SUBDIVISION THREE OF THIS SECTION; AND
  (III)  ACCOMPANIED  BY FINGERPRINTS OF THE SUBJECT INDIVIDUAL OBTAINED
PURSUANT TO THIS SECTION.
  (C) The division  shall  promptly  provide  requested  state  criminal
history  information  to  the authorized agency and, [in accordance with
article twenty-eight-E of the  public  health  law,  the  department  of
health  is  authorized also to receive criminal history information from
the federal bureau of investigation, after  the  receipt  of  a  request
pursuant to this section if such request is:
  (i)  made pursuant to a request by an authorized person on behalf of a
provider authorized to make such a request pursuant to  subdivision  two
of this section;
  (ii) accompanied by the completed form described in this section; and
  (iii)  accompanied  by fingerprints of the subject individual obtained
pursuant to this section.
  (b-1) The division] ALSO shall promptly forward a set of  the  subject
individual's fingerprints to the federal bureau of investigation for the
purpose  of  a  nationwide  criminal  history  record check to determine
whether such applicant has been convicted of a criminal offense  in  any
state or federal jurisdiction. The division shall forward the results of
such  nationwide  search  to  the authorized agency in the same form and
manner as the criminal history report created and provided by the  divi-
sion pursuant to this section.
  [(c)] (D) Criminal history information provided by the division pursu-
ant  to  this section shall be furnished only by mail or other method of
secure and confidential delivery, addressed to  the  authorized  agency.
Such information and the envelope in which it is enclosed, if any, shall
be  prominently  marked  "confidential", and shall at all times be main-
tained by the authorized agency in a secure place.
  5. After reviewing any criminal history information  provided  by  the
division  concerning  a  subject individual, the authorized agency shall
take the following actions:
  (a) Where the criminal history information concerning a subject  indi-
vidual  reveals  a  felony  conviction  at any time for a sex offense, a

S. 3016--A                          5

felony conviction FOR ANY CRIME within  the  past  ten  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  ANY  COMPARABLE OFFENSE IN ANY  OTHER JURISDICTION; and in the
case of criminal history information obtained pursuant to section  twen-
ty-eight hundred ninety-nine-a of the public health law, where the crim-
inal  history  information  concerning  a  subject  individual reveals a
conviction at any time of any class A felony; a  conviction  within  the
past  ten  years  of  any  class  B or C felony, any class D or E felony
defined in article one hundred twenty, one hundred thirty,  one  hundred
fifty-five,  one hundred sixty, one hundred seventy-eight or two hundred
twenty of the penal law; or any crime  defined  in  sections  260.32  or
260.34  of  the penal law; or any comparable offense in any other juris-
diction[,]; the authorized agency shall deny or disapprove the  applica-
tion  for  or  renewal of the operating certificate, contract, approval,
employment of the subject individual or other authorization  to  provide
services,  or  direct  the  provider  to deny employment, as applicable,
unless  the  authorized  agency  determines,  in  its  discretion,  that
approval of the application or renewal or employment will not in any way
jeopardize  the  health,  safety or welfare of the beneficiaries of such
services.
  (b) Where the criminal history information concerning a subject  indi-
vidual  reveals  a  conviction  for  a crime other than one set forth in
paragraph (a) of this subdivision, the authorized agency  may  deny  the
application or renewal, or direct the provider to deny employment of the
subject  individual, [or approve or] disapprove the [prospective employ-
ee's] SUBJECT INDIVIDUAL'S eligibility for employment by  the  provider,
OR  VOLUNTEER  SERVICE  WITH  A  PROVIDER OF SERVICE WHO CONTRACTS WITH,
RECEIVES FUNDS FROM, OR IS LICENSED, CERTIFIED, APPROVED OR IS OTHERWISE
AUTHORIZED BY THE OFFICE OF MENTAL HEALTH OR THE OFFICE FOR PEOPLE  WITH
DEVELOPMENTAL  DISABILITIES,  consistent  with article twenty-three-A of
the correction law.
  (c) Where the criminal history information concerning a subject  indi-
vidual  reveals  a  charge for any felony, ANY CRIME IDENTIFIED IN PARA-
GRAPH (A) OF THIS SUBDIVISION, OR FOR ANY COMPARABLE OFFENSE IN  ANOTHER
JURISDICTION,  the  authorized agency shall, and for any misdemeanor, OR
ANY COMPARABLE OFFENSE IN ANOTHER JURISDICTION,  the  authorized  agency
may  hold  the  application, renewal or employment in abeyance until the
charge is finally resolved[.], PROVIDED, HOWEVER, IF THE CRIMINAL HISTO-
RY INFORMATION CONCERNING A SUBJECT INDIVIDUAL REVEALS A CHARGE FOR  ANY
CRIME NOT IDENTIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, OR A COMPARA-
BLE  OFFENSE  IN  ANOTHER JURISDICTION, WHICH IS MORE THAN TEN YEARS OLD
AND WHERE INFORMATION NECESSARY TO RESOLVE THE  CHARGE  IS  NOT  READILY
AVAILABLE TO THE AUTHORIZED AGENCY, THE AUTHORIZED AGENCY MAY EITHER:
  (I) HOLD THE APPLICATION, RENEWAL, OR EMPLOYMENT IN ABEYANCE UNTIL THE
CHARGE IS FINALLY RESOLVED; OR
  (II)  ADVISE  THE  PROVIDER  OF  SERVICES  THAT  IT MAY ACT ON ITS OWN
DISCRETION, IF SUCH PROVIDER PERFORMS A  SAFETY  ASSESSMENT  AND  DETER-
MINES,  CONSISTENT  WITH  ARTICLE  TWENTY-THREE-A OF THE CORRECTION LAW,
THAT APPROVAL OF THE APPLICATION WILL NOT POSE AN UNREASONABLE  RISK  TO
THE HEALTH, SAFETY OR WELFARE OF THE BENEFICIARIES OF SUCH SERVICES.
  (d)  WHERE  THE  SUBJECT  INDIVIDUAL IS A NATURAL PERSON OPERATOR OF A
FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER, OR  A  PERSON  OVER
THE  AGE OF EIGHTEEN WHO IS TO RESIDE, OR RESIDES, IN A FAMILY CARE HOME
OR FAMILY BASED TREATMENT PROVIDER:

S. 3016--A                          6

  (I) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT  INDI-
VIDUAL REVEALS A CONVICTION FOR ANY CRIME IDENTIFIED IN PARAGRAPH (A) OF
THIS  SUBDIVISION,  THE  AUTHORIZED  AGENCY  SHALL  PROMPTLY  ADVISE THE
AUTHORIZED PERSON OF THE FAMILY CARE  HOME  OR  FAMILY  BASED  TREATMENT
PROVIDER THAT IT SHALL NOT PERMIT, OR MUST CEASE AND DESIST FROM PERMIT-
TING,  SUCH  PERSON  FROM OPERATING, RESIDING OR CONTINUING TO RESIDE IN
THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT PROVIDER, UNLESS
THE AUTHORIZED AGENCY DETERMINES THAT THE SUBJECT INDIVIDUAL WILL NOT IN
ANY WAY JEOPARDIZE THE HEALTH, SAFETY,  OR  WELFARE  OF  THE  CLIENT  OR
CLIENTS  OF  THE  FAMILY  CARE  HOME OR FAMILY BASED TREATMENT PROVIDER.
FAILURE TO COMPLY WITH THIS DIRECTIVE SHALL, AS  APPLICABLE,  CONSTITUTE
GROUNDS FOR DENIAL OF AN OPERATING CERTIFICATE OR REMOVAL OF THE OPERAT-
ING  CERTIFICATE  OF  THE  FAMILY  CARE  HOME  OR FAMILY BASED TREATMENT
PROGRAM IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SIXTEEN OR  THIRTY-
ONE OF THE MENTAL HYGIENE LAW; OR
  (II) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL  REVEALS  A CONVICTION FOR ANY CRIME OTHER THAN ONE IDENTIFIED IN
PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED  AGENCY  MAY  PROMPTLY
ADVISE  THE  AUTHORIZED  PERSON  OF THE FAMILY CARE HOME OR FAMILY BASED
TREATMENT PROVIDER IT SHALL NOT PERMIT, OR MUST CEASE  AND  DESIST  FROM
PERMITTING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINUING TO RESIDE
IN  THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT PROVIDER IF,
AFTER PERFORMING A SAFETY ASSESSMENT THE  AUTHORIZED  AGENCY  DETERMINES
THAT  THE  SUBJECT INDIVIDUAL WILL NOT JEOPARDIZE THE HEALTH, SAFETY, OR
WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMILY BASED
TREATMENT PROVIDER. FAILURE TO COMPLY  WITH  THIS  DIRECTIVE  SHALL,  AS
APPLICABLE,  CONSTITUTE  GROUNDS FOR DENIAL OF AN OPERATING CERTIFICATE,
OR REMOVAL OF THE OPERATING CERTIFICATE OF THE FAMILY CARE HOME OR FAMI-
LY BASED TREATMENT PROVIDER IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR
  (III) IF THE CRIMINAL  HISTORY  INFORMATION  CONCERNING  SUCH  SUBJECT
INDIVIDUAL  REVEALS  AN  OUTSTANDING  CHARGE FOR ANY CRIME IDENTIFIED IN
PARAGRAPH (A) OF THIS  SUBDIVISION,  THE  AUTHORIZED  AGENCY  SHALL,  AS
APPLICABLE,  HOLD  THE APPLICATION FOR AN OPERATING CERTIFICATE IN ABEY-
ANCE UNTIL THE CHARGE IS RESOLVED, OR REQUIRE A SAFETY ASSESSMENT OF THE
FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER TO BE PERFORMED, AND
SHALL DIRECT THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER  OF
ANY  ACTIONS  THAT  MUST  BE TAKEN TO ENSURE THAT THE SUBJECT INDIVIDUAL
WILL NOT IN ANY WAY JEOPARDIZE THE HEALTH, SAFETY,  OR  WELFARE  OF  THE
CLIENT  OR  CLIENTS  OF  THE  FAMILY CARE HOME OR FAMILY BASED TREATMENT
PROVIDER. FAILURE TO PROMPTLY IMPLEMENT SUCH ACTIONS BY THE FAMILY  CARE
HOME  OR  FAMILY  BASED  TREATMENT PROVIDER SHALL CONSTITUTE GROUNDS FOR
REMOVAL OF ITS OPERATING CERTIFICATE IN ACCORDANCE WITH  THE  PROVISIONS
OF ARTICLE SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR
  (IV) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL  REVEALS AN OUTSTANDING CHARGE FOR ANY CRIME OTHER THAN ONE IDEN-
TIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY  MAY,
AS  APPLICABLE,  HOLD  THE  APPLICATION  FOR AN OPERATING CERTIFICATE IN
ABEYANCE OR REQUIRE A SAFETY ASSESSMENT OF THE FAMILY CARE HOME OR FAMI-
LY BASED TREATMENT PROVIDER TO BE PERFORMED, AND MAY DIRECT  THE  FAMILY
CARE  HOME OR FAMILY CARE TREATMENT PROVIDER OF ANY ACTIONS THAT MUST BE
TAKEN TO ENSURE THAT THE SUBJECT  INDIVIDUAL  WILL  NOT  JEOPARDIZE  THE
HEALTH,  SAFETY,  OR WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE
HOME OR FAMILY BASED TREATMENT PROVIDER. FAILURE TO  PROMPTLY  IMPLEMENT
SUCH ACTIONS BY THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER,
IF  DIRECTED TO DO SO, SHALL CONSTITUTE GROUNDS FOR REMOVAL OF ITS OPER-

S. 3016--A                          7

ATING CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS OF  ARTICLE  SIXTEEN
OR THIRTY-ONE OF THE MENTAL HYGIENE LAW.
  (E)  Prior  to  making  a  determination  to  deny  an application [or
renewal,] or directing [an employer] A PROVIDER to  deny  employment  OR
VOLUNTEER  SERVICE, the authorized agency shall afford the subject indi-
vidual an opportunity to explain, in writing, why the application should
not be denied.   IN ITS  DISCRETION,  THE  AUTHORIZED  AGENCY  MAY  ALSO
DIRECTLY  CONTACT A SUBJECT INDIVIDUAL FOR ADDITIONAL INFORMATION IN THE
EVENT HIS OR HER CRIMINAL HISTORY INFORMATION REQUIRES CLARIFICATION.
  [(e)] (F) Upon receipt of criminal history information from the  divi-
sion, the authorized agency may request, and is [entitled] AUTHORIZED to
receive, information pertaining to any crime identified in such criminal
history  information  from  any  state  or local law enforcement agency,
district attorney, parole officer, probation officer or  court  for  the
purposes of determining whether any ground relating to such crime exists
for  denying  an  application,  renewal,  or  employment,  AND  PROVIDED
FURTHER, THAT WITH RESPECT TO CRIMES COMMITTED IN THE STATE OF NEW YORK,
SUCH AUTHORIZED AGENCY IS ENTITLED TO RECEIVE SUCH INFORMATION.
  [(f)] (G) The authorized agency shall thereafter promptly  notify  the
provider  concerning whether its check has revealed any criminal history
information, and if so, what actions  shall  or  may  be  taken  by  the
authorized  agency  and  the provider. SUCH NOTIFICATION SHALL INCLUDE A
WRITTEN SUMMARY BY THE AUTHORIZED AGENCY OF THE CRIMINAL HISTORY  INFOR-
MATION  PROVIDED  BY  THE DIVISION AND/OR THE FEDERAL BUREAU OF INVESTI-
GATION. THE WRITTEN SUMMARY SHALL INCLUDE A NOTATION OF ANY  OUTSTANDING
CHARGES,  IF  ANY, ABOUT WHICH THE AUTHORIZED AGENCY IS AWAITING FURTHER
INFORMATION CONCERNING  THE  FINAL  DISPOSITION  OF  SUCH  CHARGES.  THE
AUTHORIZED AGENCY SHALL SUPPLEMENT SUCH NOTIFICATION WHEN THE AUTHORIZED
AGENCY  RECEIVES  INFORMATION  FROM  THE  DIVISION RELATING TO A SUBJECT
INDIVIDUAL AS PART OF THE SEARCH AND RETAIN PROCESSING CONDUCTED BY SUCH
DIVISION OR WHEN THE AUTHORIZED AGENCY RECEIVES INFORMATION RELATIVE  TO
THE FINAL DISPOSITION OF AN OUTSTANDING CHARGE.
  [(g) Where the authorized agency denies the application for or renewal
of  an  operating certificate, contract, approval or other authorization
to provide services, or directs a provider to  deny  employment  of  the
subject  individual  on  account  of  the  subject individual's criminal
history information, the notification by  the  authorized  agency  shall
include  a  summary  of the criminal history information provided by the
division.]
  (h) IN THE EVENT THAT THE INFORMATION OBTAINED BY THE AUTHORIZED AGEN-
CY FROM THE DIVISION AND/OR THE FEDERAL BUREAU  OF  INVESTIGATION  INDI-
CATES  THAT  EITHER  ENTITY  HAS  NO  CRIMINAL  HISTORY INFORMATION WITH
RESPECT TO THE SUBJECT INDIVIDUAL, THE AUTHORIZED  AGENCY  SHALL  NOTIFY
THE  PROVIDER  THAT  SUCH INDIVIDUAL HAS NO CRIMINAL HISTORY INFORMATION
RECORD.
  (I) Where the authorized agency directs a provider to deny  employment
OR VOLUNTEER SERVICE based on criminal history information, the provider
must notify the subject individual that such information is the basis of
the denial.  WHERE THE AUTHORIZED AGENCY DENIES THE ISSUANCE OF AN OPER-
ATING  CERTIFICATE, CONTRACT, APPROVAL OR OTHER AUTHORIZATION TO PROVIDE
SERVICES BASED ON CRIMINAL HISTORY INFORMATION,  THE  AUTHORIZED  AGENCY
MUST NOTIFY THE SUBJECT INDIVIDUAL THAT SUCH INFORMATION IS THE BASIS OF
THE DENIAL.
  6.  [Upon  request  from  an employee who has already been cleared for
employment by an authorized agency and who subsequently leaves a partic-
ular employer and applies for employment with another,  the  authorizing

S. 3016--A                          8

agency  shall  adhere  to  its  previous authorization when the criminal
history information is unchanged and the circumstances of employment are
substantially similar for the purposes of this section.
  7.] Any criminal history information provided by the division, and any
summary  of  the criminal history information provided by the authorized
agency to [an employer] A PROVIDER pursuant to this section is confiden-
tial and shall not be available for public inspection; provided,  howev-
er,  nothing  in  this subdivision shall prevent an authorized agency or
provider from disclosing criminal history information at any administra-
tive or judicial proceeding relating to the denial or revocation  of  an
application,  employment,  license or registration. Where the authorized
agency denies the application for or renewal  of  an  operating  certif-
icate, contract, approval or other authorization to provide services, or
directs  a  provider  to  deny  employment  OR  VOLUNTEER SERVICE of the
subject individual, the subject  of  the  criminal  history  information
check  conducted  pursuant to this section shall be entitled to receive,
upon written request, a copy of the  summary  of  the  criminal  history
information  provided  by  the authorized agency to the provider, IF ANY
SUCH SUMMARY WAS SO PROVIDED.
  [8.] 7. A provider shall advise the authorized agency when  a  subject
individual  is  no  longer  subject to such check. The authorized agency
shall inform the division when a subject individual is no longer subject
to such check so that the division may terminate its  retain  processing
with  regard  to  such  individual. At least once a year, the authorized
agency shall be required to conduct a validation of  the  records  main-
tained  by the division, including information obtained from the federal
bureau of investigation  [pursuant  to  article  twenty-eight-E  of  the
public health law] and provide such results to the authorized agency for
purposes  of  updating  the  permanent  record  of such criminal history
information results.
  [9.] 8. Provided that an authorized agency or  a  provider  reasonably
and  in  good  faith complies with the provisions of this section, there
shall be no criminal or civil liability on the part of and no  cause  of
action  for damages shall accrue against any authorized agency, provider
or employee thereof on account of, arising out of or relating to  crimi-
nal history information pursuant to this section, or any act or omission
relating to criminal history information pursuant to this section.
  [10.]  9.  Fingerprints  received  by  the  division  pursuant to this
section shall be used only to assist the division in providing  criminal
history information to authorized agencies under this section.
  [11.] 10. An authorized agency or provider authorized to request crim-
inal  history  information  pursuant  to  this  section  may temporarily
approve an applicant while the results of the criminal history  informa-
tion  check  are  pending, so long as such person does not have unsuper-
vised physical contact with clients, as shall be defined by the  author-
ized  agency  pursuant  to  regulation; provided however, that providers
subject to the provisions of subdivision  ten  of  section  twenty-eight
hundred  ninety-nine-a  of the public health law shall be subject to the
supervision requirements provided therein. [Such regulation shall recog-
nize the differences in the staffing patterns of various service  models
and the supervision required to ensure the safety of clients.
  12.]  11.  The authorized agency in consultation with the commissioner
shall promulgate any rules and regulations necessary  to  implement  the
provisions  of  this  section, which shall include convenient procedures
for persons to promptly verify the accuracy  of  their  NEW  YORK  STATE

S. 3016--A                          9

criminal  history  information  and, to the extent authorized by law, to
have access to relevant documents related thereto.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

Co-Sponsors

S3016B (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A8470A
Current Committee:
Law Section:
Mental Hygiene Law
Laws Affected:
Amd §31.35, Ment Hyg L; amd §845-b, Exec L
Versions Introduced in 2009-2010 Legislative Session:
S3484

S3016B (ACTIVE) - Bill Texts

view summary

Relates to the review of criminal history information of certain persons rendering community based services to individuals with mental illness or developmental disabilities.

view sponsor memo
BILL NUMBER:S3016B

TITLE OF BILL:
An act
to amend the mental hygiene law and the
executive law, in relation to the review of
criminal history information of certain
persons rendering community based services
to individuals with mental illness or
developmental disabilities

PURPOSE:
This bill would amend Mental Hygiene Law (MHL) § 31.35(a) and
Executive Law § 845-b to require criminal history record checks for
each prospective operator, employee, or volunteer of certain
providers of mental health or developmental disabilities services who
will have regular and substantial unsupervised or unrestricted
physical contact with clients of such providers.

SUMMARY OF PROVISIONS:
Section 1 of the bill would amend MHL § 31.35(a) to clarify that
criminal history background checks performed by the Office of Mental
Health (OMH) and the Office of People with Developmental Disabilities
(OPWDD) must include criminal history background checks for employees
of providers who receive funds from or are licensed or certified to
provide services to persons with mental illness or developmental
disabilities.
In addition, § 1 would enable OMH to perform a criminal history
background check for any person over the age of 18 living in a Family
Care Home that was approved by OMH on or after April 1, 2009.

Section 2 of the bill would amend Executive Law § 845-b(1) (c) to
clarify that the term "criminal history information" includes
information obtained from the Federal Bureau of Investigation (FBI)
as a result of a national criminal history check for purposes of OMH
and OPWDD.

Section 2 of the bill would also amend Executive Law §§ 845-b(3)(a),
(b) and (c) to provide for the use of attestations by authorized
persons and to clarify that the attestation requirement may be
achieved through a single submission that is applicable to all
requests made by the authorized person. It further clarifies that
provisions applicable to FBI checks, which currently appear to apply
only to the Department of Health (DOH), also include OMH and OPWDD,
in accordance with Chapter 673 of the Laws of 2006, and makes
additional technical amendments in these paragraphs.

Section 2 of the bill would also amend Executive Law § 845-b(4) to
expand provisions applicable to the processing of FBI checks, which
currently apply only to DOH, to include OMH and OPWDD.

Section 2 of the bill would also amend Executive Law § 845-b(5) 10
establish provisions that enable the agencies to take appropriate
action, depending on the nature of the criminal history at issue,
while ensuring sufficient due process protections are afforded to the
provider. This section would include amendments that would enable OMH
and OPWDD to take action in cases in which a natural person operator
of a family care home or family based treatment program, or a person
over the age of 18 residing in such home or program, have problematic
criminal histories. These amendments would provide OMH and OPWDD with
flexibility in cases in which an applicant has an outstanding charge
that does not
presumptively disqualify him or her from employment, but the
disposition of the charge cannot be readily ascertained.

Section 2 of the bill would also make a technical amendment to
Executive Law § 845-b(d) (5) to ensure that OMH and OPWDD have the
ability to directly contact any subject individual of a criminal
history background check and request' additional information in the
event that the individual's criminal history information is
incomplete or requires clarification.

Section 2 would also renumber and make technical, clarifying changes
to the criminal history background check processes to Executive Law
845-b(5) (e) and, (f), and would add a new paragraph (h) to make a
technical process clarification with respect to provisions requiring
OMH and OPWDD to send a written summary notifying a provider of a
subject individual's criminal history information.

This section would also repeal the opening sentence of Executive Law
845-b(6) and amend Executive Law § 845-b(11) (currently subdivision
10). The new subdivision 11 would be amended to remove the
requirement that the definition of "unsupervised physical contact
with clients," to be defined in regulations promulgated by the
authorizing agency, must take into consideration the differences in
the staffing patterns of various service models and the supervision
required to ensure the safety of clients. This provision is no
longer necessary, as implementing regulations for the agencies are
in effect.

Section 3 of the bill would take effect on the 180th day after it
shall become a law.

EXISTING LAW:
Chapter 643 of the Laws of 2003, as amended by Chapter 575 of the Laws
of 2004, requires criminal history record checks for each prospective
operator, employee, or volunteer of certain mental health treatment
providers who will have regular and substantial unsupervised or
unrestricted physical contact with the clients of such providers. OMH
and OPWDD are required to process these requests and to perform an
analysis pursuant to Correction Law Article 23-A with respect to the
results.
After undertaking such review, OMH and OPWDD are required to summarily

advise providers whether or not the applicant can be approved for
consideration. OMH and OPWDD are required to promulgate regulations
that establish the standards and procedures for such criminal history
record checks.

Chapter 673 of the Laws of 2006 amended these provisions and extended
the authority of OMH and OPWDD pursuant to Executive Law § 845-b to
request criminal history background information on a national level
from the FBI.

Chapter 331 of the Laws of 2006 amended Executive Law § 845-b to
authorize DOH to request both state and national criminal history
information.

LEGISLATIVE HISTORY:
2009-10: S.3484 - Passed in Senate.

This proposal represents part of a bill (S.7674/A.11035) which passed
the Senate and was referred to the Assembly Mental Health Committee. In
the 2009 Legislative Session, the proposal has been modified to remove
provisions that impacted State employees.

STATEMENT IN SUPPORT:
In April of 2005, OMH and OPWDD began processing requests for criminal
histories on behalf of local providers of mental hygiene, reviewing
them, and responding to providers with respect to the results of its
review. Over the course of implementation, several process questions
and concerns arose, the answers to which were not immediately clear
from the language of the statute. The proposed amendments are
intended, in large part, to clarify the answers to these process
questions to ensure effective implementation of the law's requirements.

Specifically, Chapter 575 requires that, for each criminal history
check requested by an authorized person, a notarized attestation must
be made indicating a number of elements designed to ensure that the
request is justified under the law. During the implementation of the
law, it became apparent that to require a notarized statement for
each request submitted was unduly onerous to providers. This bill
permits the use of a single attestation or affirmation from each
authorized provider signed under penalty of perjury, in lieu of a
notarized statement that indicates every request that it submits will
meet these applicable criteria.

In addition, the bill authorizes OMH to review criminal histories of
every person over the age of 18 residing in a family care home or a
family based treatment program. As currently enacted, OMH is only
able to review the histories of new operators of family care homes,
unlike OPWDD, which is authorized to review the operators of such
homes, as well as every person over the age of 18 living in the home.
As residents of family care homes and family based treatment programs
approved by OMH should have the same safety assurances as residents

of family care homes approved by OPWDD, this proposal would provide
consistent authority for both OMH and OPWDD.

Other changes are made in the bill to address the actions OMH and
OPWDD can take in the event that a natural person who operates a
family care home or, family-based treatment provider, or a person
over the age of 18 living in such home or program, has a problematic
criminal history.
Currently, it is not clear what options are available to OPWDD in
cases where a problematic criminal history is revealed with respect
to a person over the age of 18 who resides in the home. Furthermore,
as stated above, the law does not specifically indicate that OMH has
authority
to obtain and review the criminal histories of a person over the age
of 18 who resides in a family care home or family based treatment
program. As a result, in most cases, OMH will not even know if such a
person has a problematic criminal background and may be unable to
take action in the event it is learned that such a problematic
history exists. These amendments would address these issues, by
establishing provisions that enable the agencies to take appropriate
action, depending on the nature of the criminal history at issue,
while ensuring that sufficient due process protections are afforded
to the provider.

The bill would also create additional flexibility for the agencies
wit.h respect to situations in which a criminal history contains
charges for the commission of non-presumptive crimes that were placed
on the record ten or more years ago, but the agency is not reasonably
able to determine the disposition of such charges. Under current law,
all applications that contain charges for felonies must be held in
abeyance, and those with misdemeanors may be held in abeyance, until
such charges are resolved. Experimentally, the agencies. have
discovered that it is sometimes very difficult, if not impossible, to
obtain information from courts or other sources when trying to
resolve old charges. This creates particular problems for OPWDD,
because the only alternatives now available to a provider when an
application is placed in abeyance are to dismiss the individual or
ensure constant supervision of him or her. The proposal would allow
OMH or OPWDD to permit providers to make their own decisions with
respect to applicants who have charges for non-presumptive crimes on
their record, that are more than ten years old and the disposition of
which is not readily available, if a safety assessment is performed
and the provider determines that the individual
does not pose an unreasonable risk to its clients.

The bill also removes the requirement established in Chapter 575 that
the definition of "unsupervised contact," for purposes of temporary
approval, must take into consideration the differences in staffing
patterns of various service models and the supervision required to
ensure the safety of clients. This language was originally included
based on a fear that certain provider types with less "rich" staffing
patterns would be disadvantaged if their unique characteristics were

not considered. After taking such differences into consideration, OMH
and OPWDD promulgated regulations that established a definition of
this term, applicable to all service types, based on the notion that
a service recipient's need for safety should not be variable based
upon which service setting in which he or she was receiving care. The
definition has been working well, and no service types have been
significantly disadvantaged in this respect, because the prompt
turnaround times for criminal history reviews have diminished the
need to utilize the temporary approval option. Thus, this qualifying
language in the statute is not necessary.

Finally, Chapter 575 of the Laws of 2004 was further amended by
Chapter 673 of the Laws of 2006, which extended the authority of OMH
and OPWDD in Executive Law § 845-b to request criminal history
background information on a national level from the FBI. However,
also in 2006, Chapter 331 of the Laws of 2006 amended Executive Law
§845-b to authorize QOH to request both State and national criminal
history information. However, the bills establishing these Chapters
were not reconciled, which has resulted in an awkwardly worded
statute. This proposal would amend Executive Law § 845-b so that it
is internally consistent, accurately
reflects the roles and responsibilities of each agency to which it
applies with respect to the receipt and distribution of information
from the FBI, and clarifies that the provisions unique to FBI
information do not apply only to DOH, but also to OMH and OPWDD.

This proposal also repeals the requirement that OMH, OPWDD and DOH
adhere to previous decisions in cases in which an employee already
cleared for employment leaves a particular employer and applies for
employment with another, when the criminal history is unchanged and
the circumstances of employment are substantially similar. This
provision fails to reflect current practices where FBI checks, unlike
New York State checks, do not provide for search and retain status to
allow for an individual's criminal history, once hired or retained,
to be continuously updated and sent to the authorized agencies. This
confounds the agencies' ability to obtain up-to-date federal
information on a subject individual's criminal history information.
While agencies should certainly be guided by a previous decision, a.
mandate to adhere to a previous determination is unduly onerous in
light of the new authority to conduct FBI cheeks, where the national
criminal history may have changed, but the agency may not know it
unless new FBI checks are performed.

Authority for OMH and OPWDD to request FBI checks was established by
Chapter 673 of the Laws of 2006, but the definition of "criminal
history information" was not amended in this legislation. An expanded
definition of "criminal history information" to include FBI checks
was included in Chapter 331 of the Laws of 2006, which extends this
authority to DOH with respect to nursing homes and home health care
service agencies. This amendment clarifies that the expanded
definition applies to OMH, and OPWDD as well as DOH.

BUDGET IMPLICATIONS:
The proposal is expected to have a minimal fiscal impact. The
provision that adds persons over the age of 18 living in OMH family
care homes or family based treatment programs would only include a
very small pool of individuals whose histories must be obtained and
reviewed, and there would be extremely minimal associated costs in
implementing the background check process. OMH pays the fee for
criminal history background checks for its local providers, which
represents a cost of $99 (including both State and national checks)
per applicant.

EFFECTIVE DATE:
The bill would take effect 180 days after enactment.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3016--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 7, 2011
                               ___________

Introduced by Sens. HUNTLEY, BALL -- read twice and ordered printed, and
  when  printed  to  be  committed to the Committee on Mental Health and
  Developmental Disabilities  --  committee  discharged,  bill  amended,
  ordered  reprinted  as  amended  and  recommitted to said committee --
  recommitted to the Committee on Mental Health and Developmental  Disa-
  bilities  in  accordance  with  Senate  Rule  6,  sec.  8 -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the  mental  hygiene  law  and  the  executive  law,  in
  relation  to  the  review  of  criminal history information of certain
  persons rendering community based services to individuals with  mental
  illness or developmental disabilities

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision (a) of section 31.35 of the mental hygiene law,
as amended by chapter 575 of the laws of 2004, is  amended  to  read  as
follows:
  (a)  Every  provider  of  services  who contracts with, RECEIVES FUNDS
FROM, or is LICENSED, CERTIFIED, approved or IS otherwise authorized  by
the  office to provide services, except (1) a department facility, (2) a
hospital as defined in article twenty-eight of the public health law, or
(3) a licensed professional under title eight of the education  law  who
does not have employees or volunteers who will have regular and substan-
tial  unsupervised  or unrestricted physical contact with the clients of
such provider, and every applicant to be such  a  provider  of  services
except  (i) a department facility, (ii) a hospital as defined in article
twenty-eight of the public health law, or (iii) a licensed  professional
under  title  eight  of the education law who does not have employees or
volunteers who will have regular and substantial unsupervised  or  unre-
stricted  physical  contact  with  the  clients  of such provider, shall
request that the office check, and upon such request  the  office  shall

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03968-04-1

S. 3016--B                          2

request and shall be authorized to receive from the division of criminal
justice services criminal history information, as such phrase is defined
in   paragraph   (c)   of  subdivision  one  of  section  eight  hundred
forty-five-b of the executive law, concerning each (A) prospective oper-
ator,  employee  or volunteer of such provider who will have regular and
substantial unsupervised  or  unrestricted  physical  contact  with  the
clients  of  such provider, OR (B) OTHER PERSON OVER THE AGE OF EIGHTEEN
WHO IS TO RESIDE IN A FAMILY CARE HOME OR FAMILY BASED TREATMENT PROGRAM
APPROVED BY THE OFFICE ON OR AFTER APRIL  FIRST,  TWO  THOUSAND  TWELVE,
EXCEPT  ANY  PERSON  RECEIVING  FAMILY  CARE  OR  FAMILY BASED TREATMENT
SERVICES, WHO WILL HAVE REGULAR AND SUBSTANTIAL  UNSUPERVISED  OR  UNRE-
STRICTED  PHYSICAL  CONTACT  WITH  THE  CLIENTS  OF  SUCH  PROVIDER. For
purposes of this section, "operator" shall include  any  natural  person
with an ownership interest in the provider of services.
  S  2.  Paragraph  (c) of subdivision 1, paragraphs (a), (b) and (c) of
subdivision 3 and subdivisions 4, 5, 6, 7,  8,  9,  10,  11  and  12  of
section  845-b  of  the  executive law, as amended by chapter 769 of the
laws of 2005, the closing paragraph of subparagraph (iii)  of  paragraph
(c)  of subdivision 3 as amended and paragraph (b-1) of subdivision 4 as
added by chapter 673 of the laws of 2006 and subdivisions  4  and  5  as
amended  by  chapter  331  of  the  laws of 2006, are amended to read as
follows:
  (c) "Criminal history information" means a record of pending  criminal
charges,  criminal  convictions  which  are not vacated or reversed, and
certificates filed pursuant to subdivision two of section seven  hundred
five  of  the  correction  law,  and which the division is authorized to
maintain pursuant to subdivision six of section  eight  hundred  thirty-
seven of this article. For the purposes of [criminal history information
checks  authorized  pursuant  to  article  twenty-eight-E  of the public
health law]  THIS  SECTION,  criminal  history  information  shall  also
include information from the federal bureau of investigation as a result
of a national criminal history record check.
  (a)  A  provider  authorized  to  request  a check of criminal history
information pursuant to subdivision two of this section shall  designate
one  OR  MORE  authorized [person] PERSONS, who shall request a check of
criminal history information on behalf of such provider pursuant to this
section and review the results  of  such  check.  Only  such  authorized
[person  or  his  or her designee] PERSONS and the subject individual to
whom such criminal history information relates shall have access to such
information;  provided,  however,  that  criminal  history   information
received by a provider may be disclosed to other persons who are direct-
ly  participating  in any decision in regard to such subject individual;
and provided, further, that such other persons shall also be subject  to
the  confidentiality  requirements  and  all  other  provisions  of this
section[.  In  the  case  of   requests   made   pursuant   to   article
twenty-eight-E  of  the public health law], 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  trans-
mitted to the provider. Each provider shall specifically identify to the
authorized  agency  in writing, in advance of disclosure, the authorized
person and each other such agent or employee  of  the  provider  who  is
authorized  to have access to the results of a check of criminal history
information pursuant to this section. Any person who  willfully  permits
the  release  of any confidential criminal history information contained

S. 3016--B                          3

in the report to persons not permitted by this section to  receive  such
information shall be guilty of a misdemeanor.
  (b)  A  provider  requesting  a  check of criminal history information
pursuant to this section shall do so by completing  a  form  established
for such purpose by the authorized agency in consultation with the divi-
sion.  Such  form  shall  include  a  sworn  statement of the authorized
person, OR A STATEMENT SUBSCRIBED TO BY THE AUTHORIZED PERSON CONTAINING
AN AFFIRMATION OF SUCH PERSON THAT THE STATEMENTS THEREIN ARE TRUE UNDER
PENALTIES OF PERJURY, certifying OR AFFIRMING, AS APPLICABLE that:
  (i) [the] EACH person for whose criminal history information  a  check
is requested [is] SHALL BE a subject individual for whom criminal histo-
ry information is available by law;
  (ii)  FOR  EACH  CRIMINAL HISTORY CHECK REQUESTED, the specific duties
which qualify the provider to request a check of criminal history infor-
mation SHALL BE IDENTIFIED;
  (iii) the results of [such] ANY  criminal  history  information  check
MADE  PURSUANT  TO  THIS SECTION will be used by the provider solely for
purposes authorized by law; and
  (iv) the provider and its agents and employees are aware of  and  will
abide  by  the  confidentiality requirements and all other provisions of
this article.
  (c) A provider authorized to request a  criminal  history  information
check  pursuant  to  this section may inquire of a subject individual in
the manner authorized by subdivision  sixteen  of  section  two  hundred
ninety-six  of  this  chapter.  Prior  to requesting such information, a
provider shall:
  (i) inform the subject individual in  writing  that  the  provider  is
authorized  or,  where applicable, required to request a check of his or
her criminal history information and review the results  of  such  check
pursuant to this section;
  (ii)  inform  the  subject  individual that he or she has the right to
obtain, review and seek correction of his or her criminal history infor-
mation under regulations and procedures established by the division  AND
THE FEDERAL BUREAU OF INVESTIGATION;
  (iii) obtain the signed, informed consent of the subject individual on
a  form  supplied  by  the  authorized  agency which indicates that such
person has:
  A. been informed of the right  and  procedures  necessary  to  obtain,
review and seek correction of his or her criminal history information;
  B. been informed of the reason for the request for his or her criminal
history information;
  C.  BEEN  INFORMED  THAT  THE CRIMINAL HISTORY INFORMATION SOUGHT WILL
INCLUDE BOTH A NEW YORK STATE AND A NATIONAL CRIMINAL  HISTORY  INFORMA-
TION CHECK;
  D. consented to such request for a report[; and
  D.]  WITH RESPECT TO BOTH NEW YORK STATE AND NATIONAL CRIMINAL HISTORY
INFORMATION; AND
  E. supplied on the form a current mailing or home address.
  Upon receiving such written consent, the  provider  shall  receive  or
obtain  [two sets of] THE fingerprints of such subject individual pursu-
ant to such regulations AND PROCEDURES as may be necessary to be  estab-
lished  by  the authorized agency in consultation with the division, and
promptly transmit them to the authorized agency.
  4. Procedures for criminal history information  checks  by  authorized
agencies. (a) The authorized agency shall pay the processing fee imposed
pursuant to subdivision eight-a of section eight hundred thirty-seven of

S. 3016--B                          4

this  article,  and  [in  the  case of the authorized agency pursuant to
article twenty-eight-E of the public health law,] any fee imposed by the
federal bureau of investigation, and shall promptly submit  the  finger-
prints  and  the  processing fee to the division for its full search and
retain processing, and [in the case of the authorized agency pursuant to
article twenty-eight-E of the public health  law,]  the  division  shall
immediately  forward  the fingerprints to the federal bureau of investi-
gation for a national criminal  history  record  check.  The  authorized
agency  may charge a provider a fee in AN amount no greater than the fee
established pursuant to law by the division for processing such a crimi-
nal history information check, in such amounts as may be established  by
the  authorized  agency  and approved by the director of the division of
the budget, and [in the case of the authorized agency pursuant to  arti-
cle  twenty-eight-E of the public health law,] a fee no greater than any
fee imposed by the federal bureau of investigation.    Nothing  in  this
section  shall  prohibit the authorized agency or provider from claiming
the cost of such fees and related costs, including administrative costs,
as a reimbursable cost under the medical assistance program, Medicare or
other payor, to the extent permitted by state and federal law.
  (b) THE AUTHORIZED AGENCY IS AUTHORIZED TO  RECEIVE  CRIMINAL  HISTORY
INFORMATION  FROM  THE DIVISION AND THE FEDERAL BUREAU OF INVESTIGATION,
AFTER THE RECEIPT OF A REQUEST PURSUANT TO THIS SECTION, IF SUCH REQUEST
IS:
  (I) MADE PURSUANT TO A REQUEST BY AN AUTHORIZED PERSON ON BEHALF OF  A
PROVIDER  AUTHORIZED  TO MAKE SUCH A REQUEST PURSUANT TO SUBDIVISION TWO
OF THIS SECTION;
  (II) ACCOMPANIED BY THE COMPLETED FORM DESCRIBED IN PARAGRAPH  (B)  OF
SUBDIVISION THREE OF THIS SECTION; AND
  (III)  ACCOMPANIED  BY FINGERPRINTS OF THE SUBJECT INDIVIDUAL OBTAINED
PURSUANT TO THIS SECTION.
  (C) The division  shall  promptly  provide  requested  state  criminal
history  information  to  the authorized agency and, [in accordance with
article twenty-eight-E of the  public  health  law,  the  department  of
health  is  authorized also to receive criminal history information from
the federal bureau of investigation, after  the  receipt  of  a  request
pursuant to this section if such request is:
  (i)  made pursuant to a request by an authorized person on behalf of a
provider authorized to make such a request pursuant to  subdivision  two
of this section;
  (ii) accompanied by the completed form described in this section; and
  (iii)  accompanied  by fingerprints of the subject individual obtained
pursuant to this section.
  (b-1) The division] ALSO shall promptly forward a set of  the  subject
individual's fingerprints to the federal bureau of investigation for the
purpose  of  a  nationwide  criminal  history  record check to determine
whether such applicant has been convicted of a criminal offense  in  any
state or federal jurisdiction. The division shall forward the results of
such  nationwide  search  to  the authorized agency in the same form and
manner as the criminal history report created and provided by the  divi-
sion pursuant to this section.
  [(c)] (D) Criminal history information provided by the division pursu-
ant  to  this section shall be furnished only by mail or other method of
secure and confidential delivery, addressed to  the  authorized  agency.
Such information and the envelope in which it is enclosed, if any, shall
be  prominently  marked  "confidential", and shall at all times be main-
tained by the authorized agency in a secure place.

S. 3016--B                          5

  5. After reviewing any criminal history information  provided  by  the
division  concerning  a  subject individual, the authorized agency shall
take the following actions:
  (a)  Where the criminal history information concerning a subject indi-
vidual reveals a felony conviction at any time  for  a  sex  offense,  a
felony  conviction  FOR  ANY  CRIME  within the past ten 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 ANY COMPARABLE OFFENSE IN ANY   OTHER JURISDICTION; and  in  the
case  of criminal history information obtained pursuant to section twen-
ty-eight hundred ninety-nine-a of the public health law, where the crim-
inal history information  concerning  a  subject  individual  reveals  a
conviction  at  any  time of any class A felony; a conviction within the
past ten years of any class B or C felony,  any  class  D  or  E  felony
defined  in  article one hundred twenty, one hundred thirty, one hundred
fifty-five, one hundred sixty, one hundred seventy-eight or two  hundred
twenty  of  the  penal  law;  or any crime defined in sections 260.32 or
260.34 of the penal law; or any comparable offense in any  other  juris-
diction[,];  the authorized agency shall deny or disapprove the applica-
tion for or renewal of the operating  certificate,  contract,  approval,
employment  of  the subject individual or other authorization to provide
services, or direct the provider  to  deny  employment,  as  applicable,
unless  the  authorized  agency  determines,  in  its  discretion,  that
approval of the application or renewal or employment will not in any way
jeopardize the health, safety or welfare of the  beneficiaries  of  such
services.
  (b)  Where the criminal history information concerning a subject indi-
vidual reveals a conviction for a crime other  than  one  set  forth  in
paragraph  (a)  of  this subdivision, the authorized agency may deny the
application or renewal, or direct the provider to deny employment of the
subject individual, [or approve or] disapprove the [prospective  employ-
ee's]  SUBJECT  INDIVIDUAL'S eligibility for employment by the provider,
OR VOLUNTEER SERVICE WITH A PROVIDER  OF  SERVICE  WHO  CONTRACTS  WITH,
RECEIVES FUNDS FROM, OR IS LICENSED, CERTIFIED, APPROVED OR IS OTHERWISE
AUTHORIZED  BY THE OFFICE OF MENTAL HEALTH OR THE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES, consistent with  article  twenty-three-A  of
the correction law.
  (c)  Where the criminal history information concerning a subject indi-
vidual reveals a charge for any felony, ANY CRIME  IDENTIFIED  IN  PARA-
GRAPH  (A) OF THIS SUBDIVISION, OR FOR ANY COMPARABLE OFFENSE IN ANOTHER
JURISDICTION, the authorized agency shall, and for any  misdemeanor,  OR
ANY  COMPARABLE  OFFENSE  IN ANOTHER JURISDICTION, the authorized agency
may hold the application, renewal or employment in  abeyance  until  the
charge is finally resolved[.], PROVIDED, HOWEVER, IF THE CRIMINAL HISTO-
RY  INFORMATION CONCERNING A SUBJECT INDIVIDUAL REVEALS A CHARGE FOR ANY
CRIME NOT IDENTIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, OR A COMPARA-
BLE OFFENSE IN ANOTHER JURISDICTION, WHICH IS MORE THAN  TEN  YEARS  OLD
AND  WHERE  INFORMATION  NECESSARY  TO RESOLVE THE CHARGE IS NOT READILY
AVAILABLE TO THE AUTHORIZED AGENCY, THE AUTHORIZED AGENCY MAY EITHER:
  (I) HOLD THE APPLICATION, RENEWAL, OR EMPLOYMENT IN ABEYANCE UNTIL THE
CHARGE IS FINALLY RESOLVED; OR
  (II) ADVISE THE PROVIDER OF SERVICES  THAT  IT  MAY  ACT  ON  ITS  OWN
DISCRETION,  IF  SUCH  PROVIDER  PERFORMS A SAFETY ASSESSMENT AND DETER-
MINES, CONSISTENT WITH ARTICLE TWENTY-THREE-A  OF  THE  CORRECTION  LAW,
THAT  APPROVAL  OF THE APPLICATION WILL NOT POSE AN UNREASONABLE RISK TO
THE HEALTH, SAFETY OR WELFARE OF THE BENEFICIARIES OF SUCH SERVICES.

S. 3016--B                          6

  (d) WHERE THE SUBJECT INDIVIDUAL IS A NATURAL  PERSON  OPERATOR  OF  A
FAMILY  CARE  HOME  OR FAMILY BASED TREATMENT PROVIDER, OR A PERSON OVER
THE AGE OF EIGHTEEN WHO IS TO RESIDE, OR RESIDES, IN A FAMILY CARE  HOME
OR FAMILY BASED TREATMENT PROVIDER:
  (I)  IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS A CONVICTION FOR ANY CRIME IDENTIFIED IN PARAGRAPH (A) OF
THIS SUBDIVISION,  THE  AUTHORIZED  AGENCY  SHALL  PROMPTLY  ADVISE  THE
AUTHORIZED  PERSON  OF  THE  FAMILY  CARE HOME OR FAMILY BASED TREATMENT
PROVIDER THAT IT SHALL NOT PERMIT, OR MUST CEASE AND DESIST FROM PERMIT-
TING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINUING  TO  RESIDE  IN
THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT PROVIDER, UNLESS
THE AUTHORIZED AGENCY DETERMINES THAT THE SUBJECT INDIVIDUAL WILL NOT IN
ANY  WAY  JEOPARDIZE  THE  HEALTH,  SAFETY,  OR WELFARE OF THE CLIENT OR
CLIENTS OF THE FAMILY CARE HOME  OR  FAMILY  BASED  TREATMENT  PROVIDER.
FAILURE  TO  COMPLY WITH THIS DIRECTIVE SHALL, AS APPLICABLE, CONSTITUTE
GROUNDS FOR DENIAL OF AN OPERATING CERTIFICATE OR REMOVAL OF THE OPERAT-
ING CERTIFICATE OF THE  FAMILY  CARE  HOME  OR  FAMILY  BASED  TREATMENT
PROGRAM  IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SIXTEEN OR THIRTY-
ONE OF THE MENTAL HYGIENE LAW; OR
  (II) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS A CONVICTION FOR ANY CRIME OTHER THAN ONE  IDENTIFIED  IN
PARAGRAPH  (A)  OF  THIS SUBDIVISION, THE AUTHORIZED AGENCY MAY PROMPTLY
ADVISE THE AUTHORIZED PERSON OF THE FAMILY CARE  HOME  OR  FAMILY  BASED
TREATMENT  PROVIDER  IT  SHALL NOT PERMIT, OR MUST CEASE AND DESIST FROM
PERMITTING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINUING TO RESIDE
IN THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT PROVIDER  IF,
AFTER  PERFORMING  A  SAFETY ASSESSMENT THE AUTHORIZED AGENCY DETERMINES
THAT THE SUBJECT INDIVIDUAL WILL NOT JEOPARDIZE THE HEALTH,  SAFETY,  OR
WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMILY BASED
TREATMENT  PROVIDER.  FAILURE  TO  COMPLY  WITH THIS DIRECTIVE SHALL, AS
APPLICABLE, CONSTITUTE GROUNDS FOR DENIAL OF AN  OPERATING  CERTIFICATE,
OR REMOVAL OF THE OPERATING CERTIFICATE OF THE FAMILY CARE HOME OR FAMI-
LY BASED TREATMENT PROVIDER IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR
  (III)  IF  THE  CRIMINAL  HISTORY  INFORMATION CONCERNING SUCH SUBJECT
INDIVIDUAL REVEALS AN OUTSTANDING CHARGE FOR  ANY  CRIME  IDENTIFIED  IN
PARAGRAPH  (A)  OF  THIS  SUBDIVISION,  THE  AUTHORIZED AGENCY SHALL, AS
APPLICABLE, HOLD THE APPLICATION FOR AN OPERATING CERTIFICATE  IN  ABEY-
ANCE UNTIL THE CHARGE IS RESOLVED, OR REQUIRE A SAFETY ASSESSMENT OF THE
FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER TO BE PERFORMED, AND
SHALL  DIRECT THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER OF
ANY ACTIONS THAT MUST BE TAKEN TO ENSURE  THAT  THE  SUBJECT  INDIVIDUAL
WILL  NOT  IN  ANY  WAY JEOPARDIZE THE HEALTH, SAFETY, OR WELFARE OF THE
CLIENT OR CLIENTS OF THE FAMILY CARE  HOME  OR  FAMILY  BASED  TREATMENT
PROVIDER.  FAILURE TO PROMPTLY IMPLEMENT SUCH ACTIONS BY THE FAMILY CARE
HOME OR FAMILY BASED TREATMENT PROVIDER  SHALL  CONSTITUTE  GROUNDS  FOR
REMOVAL  OF  ITS OPERATING CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS
OF ARTICLE SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR
  (IV) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI-
VIDUAL REVEALS AN OUTSTANDING CHARGE FOR ANY CRIME OTHER THAN ONE  IDEN-
TIFIED  IN PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY MAY,
AS APPLICABLE, HOLD THE APPLICATION  FOR  AN  OPERATING  CERTIFICATE  IN
ABEYANCE OR REQUIRE A SAFETY ASSESSMENT OF THE FAMILY CARE HOME OR FAMI-
LY  BASED  TREATMENT PROVIDER TO BE PERFORMED, AND MAY DIRECT THE FAMILY
CARE HOME OR FAMILY CARE TREATMENT PROVIDER OF ANY ACTIONS THAT MUST  BE
TAKEN  TO  ENSURE  THAT  THE  SUBJECT INDIVIDUAL WILL NOT JEOPARDIZE THE

S. 3016--B                          7

HEALTH, SAFETY, OR WELFARE OF THE CLIENT OR CLIENTS OF THE  FAMILY  CARE
HOME  OR  FAMILY BASED TREATMENT PROVIDER. FAILURE TO PROMPTLY IMPLEMENT
SUCH ACTIONS BY THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER,
IF  DIRECTED TO DO SO, SHALL CONSTITUTE GROUNDS FOR REMOVAL OF ITS OPER-
ATING CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS OF  ARTICLE  SIXTEEN
OR THIRTY-ONE OF THE MENTAL HYGIENE LAW.
  (E)  Prior  to  making  a  determination  to  deny  an application [or
renewal,] or directing [an employer] A PROVIDER to  deny  employment  OR
VOLUNTEER  SERVICE, the authorized agency shall afford the subject indi-
vidual an opportunity to explain, in writing, why the application should
not be denied.   IN ITS  DISCRETION,  THE  AUTHORIZED  AGENCY  MAY  ALSO
DIRECTLY  CONTACT A SUBJECT INDIVIDUAL FOR ADDITIONAL INFORMATION IN THE
EVENT HIS OR HER CRIMINAL HISTORY INFORMATION REQUIRES CLARIFICATION.
  [(e)] (F) Upon receipt of criminal history information from the  divi-
sion, the authorized agency may request, and is [entitled] AUTHORIZED to
receive, information pertaining to any crime identified in such criminal
history  information  from  any  state  or local law enforcement agency,
district attorney, parole officer, probation officer or  court  for  the
purposes of determining whether any ground relating to such crime exists
for  denying  an  application,  renewal,  or  employment,  AND  PROVIDED
FURTHER, THAT WITH RESPECT TO CRIMES COMMITTED IN THE STATE OF NEW YORK,
SUCH AUTHORIZED AGENCY IS ENTITLED TO RECEIVE SUCH INFORMATION.
  [(f)] (G) The authorized agency shall thereafter promptly  notify  the
provider  concerning whether its check has revealed any criminal history
information, and if so, what actions  shall  or  may  be  taken  by  the
authorized  agency  and  the provider. SUCH NOTIFICATION SHALL INCLUDE A
WRITTEN SUMMARY BY THE AUTHORIZED AGENCY OF THE CRIMINAL HISTORY  INFOR-
MATION  PROVIDED  BY  THE DIVISION AND/OR THE FEDERAL BUREAU OF INVESTI-
GATION. THE WRITTEN SUMMARY SHALL INCLUDE A NOTATION OF ANY  OUTSTANDING
CHARGES,  IF  ANY, ABOUT WHICH THE AUTHORIZED AGENCY IS AWAITING FURTHER
INFORMATION CONCERNING  THE  FINAL  DISPOSITION  OF  SUCH  CHARGES.  THE
AUTHORIZED AGENCY SHALL SUPPLEMENT SUCH NOTIFICATION WHEN THE AUTHORIZED
AGENCY  RECEIVES  INFORMATION  FROM  THE  DIVISION RELATING TO A SUBJECT
INDIVIDUAL AS PART OF THE SEARCH AND RETAIN PROCESSING CONDUCTED BY SUCH
DIVISION OR WHEN THE AUTHORIZED AGENCY RECEIVES INFORMATION RELATIVE  TO
THE FINAL DISPOSITION OF AN OUTSTANDING CHARGE.
  [(g) Where the authorized agency denies the application for or renewal
of  an  operating certificate, contract, approval or other authorization
to provide services, or directs a provider to  deny  employment  of  the
subject  individual  on  account  of  the  subject individual's criminal
history information, the notification by  the  authorized  agency  shall
include  a  summary  of the criminal history information provided by the
division.]
  (h) IN THE EVENT THAT THE INFORMATION OBTAINED BY THE AUTHORIZED AGEN-
CY FROM THE DIVISION AND/OR THE FEDERAL BUREAU  OF  INVESTIGATION  INDI-
CATES  THAT  EITHER  ENTITY  HAS  NO  CRIMINAL  HISTORY INFORMATION WITH
RESPECT TO THE SUBJECT INDIVIDUAL, THE AUTHORIZED  AGENCY  SHALL  NOTIFY
THE  PROVIDER  THAT  SUCH INDIVIDUAL HAS NO CRIMINAL HISTORY INFORMATION
RECORD.
  (I) Where the authorized agency directs a provider to deny  employment
OR VOLUNTEER SERVICE based on criminal history information, the provider
must notify the subject individual that such information is the basis of
the denial.  WHERE THE AUTHORIZED AGENCY DENIES THE ISSUANCE OF AN OPER-
ATING  CERTIFICATE, CONTRACT, APPROVAL OR OTHER AUTHORIZATION TO PROVIDE
SERVICES BASED ON CRIMINAL HISTORY INFORMATION,  THE  AUTHORIZED  AGENCY

S. 3016--B                          8

MUST NOTIFY THE SUBJECT INDIVIDUAL THAT SUCH INFORMATION IS THE BASIS OF
THE DENIAL.
  6.  [Upon  request  from  an employee who has already been cleared for
employment by an authorized agency and who subsequently leaves a partic-
ular employer and applies for employment with another,  the  authorizing
agency  shall  adhere  to  its  previous authorization when the criminal
history information is unchanged and the circumstances of employment are
substantially similar for the purposes of this section.
  7.] Any criminal history information provided by the division, and any
summary of the criminal history information provided by  the  authorized
agency to [an employer] A PROVIDER pursuant to this section is confiden-
tial  and shall not be available for public inspection; provided, howev-
er, nothing in this subdivision shall prevent an  authorized  agency  or
provider from disclosing criminal history information at any administra-
tive  or  judicial proceeding relating to the denial or revocation of an
application, employment, license or registration. Where  the  authorized
agency  denies  the  application  for or renewal of an operating certif-
icate, contract, approval or other authorization to provide services, or
directs a provider to  deny  employment  OR  VOLUNTEER  SERVICE  of  the
subject  individual,  the  subject  of  the criminal history information
check conducted pursuant to this section shall be entitled  to  receive,
upon  written  request,  a  copy  of the summary of the criminal history
information provided by the authorized agency to the  provider,  IF  ANY
SUCH SUMMARY WAS SO PROVIDED.
  [8.]  7.  A provider shall advise the authorized agency when a subject
individual is no longer subject to such  check.  The  authorized  agency
shall inform the division when a subject individual is no longer subject
to  such  check so that the division may terminate its retain processing
with regard to such individual. At least once  a  year,  the  authorized
agency  shall  be  required to conduct a validation of the records main-
tained by the division, including information obtained from the  federal
bureau  of  investigation  [pursuant  to  article  twenty-eight-E of the
public health law] and provide such results to the authorized agency for
purposes of updating the  permanent  record  of  such  criminal  history
information results.
  [9.]  8.  Provided  that an authorized agency or a provider reasonably
and in good faith complies with the provisions of  this  section,  there
shall  be  no criminal or civil liability on the part of and no cause of
action for damages shall accrue against any authorized agency,  provider
or  employee thereof on account of, arising out of or relating to crimi-
nal history information pursuant to this section, or any act or omission
relating to criminal history information pursuant to this section.
  [10.] 9. Fingerprints  received  by  the  division  pursuant  to  this
section  shall be used only to assist the division in providing criminal
history information to authorized agencies under this section.
  [11.] 10. An authorized agency or provider authorized to request crim-
inal history  information  pursuant  to  this  section  may  temporarily
approve  an applicant while the results of the criminal history informa-
tion check are pending, so long as such person does  not  have  unsuper-
vised  physical contact with clients, as shall be defined by the author-
ized agency pursuant to regulation;  provided  however,  that  providers
subject  to  the  provisions  of subdivision ten of section twenty-eight
hundred ninety-nine-a of the public health law shall be subject  to  the
supervision requirements provided therein. [Such regulation shall recog-
nize  the differences in the staffing patterns of various service models
and the supervision required to ensure the safety of clients.

S. 3016--B                          9

  12.] 11. The authorized agency in consultation with  the  commissioner
shall  promulgate  any  rules and regulations necessary to implement the
provisions of this section, which shall  include  convenient  procedures
for  persons  to  promptly  verify  the accuracy of their NEW YORK STATE
criminal  history  information  and, to the extent authorized by law, to
have access to relevant documents related thereto.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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