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SECTION 845-B
Requests for criminal history information
Executive (EXC) CHAPTER 18, ARTICLE 35
§ 845-b. Requests for criminal history information. 1. Definitions. As
used in this section:

(a) "Authorized agency" means a state agency authorized to check
criminal history information pursuant to subdivision two of this
section.

(b) "Authorized person" means the one individual designated by a
provider who is authorized to request, receive and review criminal
history information pursuant to this section, except that where the
number of applications received by a provider is so great that one
person cannot reasonably perform the functions of the authorized person,
a provider may designate one or more additional persons to serve as
authorized persons pursuant to this section.

(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, criminal history information shall also include
information from the federal bureau of investigation as a result of a
national criminal history record check.

(d) "Subject individual" means a person for whom a provider is
authorized to request a check of criminal history information pursuant
to subdivision two of this section.

(e) "Provider" means a person or entity authorized to request a check
of criminal history information pursuant to subdivision two of this
section.

2. Where a provider is authorized or required to request a check of
criminal history information by an authorized agency pursuant to section
16.33 or 31.35 of the mental hygiene law, article twenty-eight-E of the
public health law or subdivision one of section three hundred
seventy-eight-a of the social services law, such provider shall proceed
pursuant to the provisions of this section and in a manner consistent
with the provisions of article twenty-three-A of the correction law,
subdivisions fifteen and sixteen of section two hundred ninety-six of
this chapter and all other applicable laws.

3. Procedures for criminal history information check requests by
providers. (a) A provider authorized to request a check of criminal
history information pursuant to subdivision two of this section shall
designate one authorized person 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 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 directly 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, only information authorized for disclosure under applicable federal
laws shall be transmitted 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
division. Such form shall include a sworn statement of the authorized
person certifying that:

(i) the person for whose criminal history information a check is
requested is a subject individual for whom criminal history information
is available by law;

(ii) the specific duties which qualify the provider to request a check
of criminal history information;

(iii) the results of such criminal history information check 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
information under regulations and procedures established by the
division;

(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. consented to such request for a report; and

D. supplied on the form a current mailing or home address.

Upon receiving such written consent, the provider shall receive or
obtain two sets of fingerprints of such subject individual pursuant to
such regulations as may be necessary to be established by the authorized
agency in consultation with the division, and promptly transmit them to
the authorized agency.

(d) A subject individual may withdraw his or her application for
employment pursuant to this section, without prejudice, at any time
before employment is offered or declined, regardless of whether the
subject individual or provider has reviewed such subject individual's
criminal history information.

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
fingerprints 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
investigation for a national criminal history record check. The
authorized agency may charge a provider a fee in amount no greater than
the fee established pursuant to law by the division for processing such
a criminal 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 article 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 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 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
division pursuant to this section.

(c) Criminal history information provided by the division pursuant 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 maintained
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
individual reveals a felony conviction at any time for a sex offense, a
felony conviction within the past ten years involving violence, or a
conviction pursuant to section 260.00, 260.25, 260.32 or 260.34 of the
penal law, and in the case of criminal history information obtained
pursuant to section twenty-eight hundred ninety-nine-a of the public
health law, where the criminal 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 section 260.32 or 260.34 of the penal law; or any comparable
offense in any other jurisdiction, the authorized agency shall deny or
disapprove the application 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
individual 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 employee's
eligibility for employment by the provider, consistent with article
twenty-three-A of the correction law.

(c) Where the criminal history information concerning a subject
individual reveals a charge for any felony, the authorized agency shall,
and for any misdemeanor, the authorized agency may hold the application,
renewal or employment in abeyance until the charge is finally resolved.

(d) Prior to making a determination to deny an application or renewal,
or directing an employer to deny employment, the authorized agency shall
afford the subject individual an opportunity to explain, in writing, why
the application should not be denied.

(e) Upon receipt of criminal history information from the division,
the authorized agency may request, and is entitled 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.

(f) 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.

(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) Where the authorized agency directs a provider to deny employment
based on criminal history information, the provider 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
particular 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 pursuant to this section is confidential and shall
not be available for public inspection; provided, however, nothing in
this subdivision shall prevent an authorized agency or provider from
disclosing criminal history information at any administrative 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
certificate, contract, approval or other authorization to provide
services, or directs a provider to deny employment 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.

8. 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
maintained 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. 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 criminal history
information pursuant to this section, or any act or omission relating to
criminal history information pursuant to this section.

10. 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. An authorized agency or provider authorized to request criminal
history information pursuant to this section may temporarily approve an
applicant while the results of the criminal history information check
are pending, so long as such person does not have unsupervised physical
contact with clients, as shall be defined by the authorized 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
recognize the differences in the staffing patterns of various service
models and the supervision required to ensure the safety of clients.

12. 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 criminal history
information and, to the extent authorized by law, to have access to
relevant documents related thereto.