Senator Alesi Cosponsors Criminal Background Checks For Nursing Home Employees

James S. Alesi

June 27, 2005

Senator Jim Alesi (R/C-Perinton) today announced that the Senate passed a bill which would permit nursing homes, home health agencies, personal care providers and temporary employment agencies to request criminal history statements on prospective employees.

"This legislation responds to the growing number of crimes committed against our most vulnerable population -- the elderly and infirm," said Senator Alesi. "As our population ages, there is an increased need for the services and expertise provided by those in the long term health care industry. While proprietors are committed to providing high-quality health care to their clients, current law hinders their ability to ascertain the true identity of potential employees through fingerprints and criminal background checks."

This legislation, Senate bill S.4371-A, encompasses a proposal originally introduced by Senator Alesi several years ago in response to a heinous crime in a Rochester nursing home.

"Not too long ago, a young, comatose nursing home patient was raped and impregnated by her attacker, an employee at the nursing home," said Senator Alesi. "This measure will ensure that such tragic situations will never happen again. By simply enabling nursing homes, home health care services and personal care providers to thoroughly examine the criminal history of possible employees, these organizations can provide clients the necessary health care service they deserve, safely and effectively."

Regulations were recently enacted by the New York State Department of Health (DOH) that require nursing homes and home care services agencies to perform and to pay for criminal history checks for prospective employees. Federal statute, which is extremely limiting, was used to implement these regulations. In order to rectify the problems created by the use of the federal statute, the state must enact legislation that allows for the creation of a criminal history record check system to be run through the Division of Criminal Justice Services (DCJS) using the Federal Bureau of Investigation's (FBI) criminal history database.

Senate bill S.4371-A allows for the creation of a criminal history record check system that provides nursing homes, home care agencies and temporary staffing agencies with easy access to an employee's employability based on the criminal history record determination made by the Department of Health. This bill amends current Executive Law as it relates to the criminal background check provisions enacted in 2004 relative to the Office of Mental Health to include similar provisions for nursing homes and home care and follows many of the same provisions included in the current regulations. The changes made through this bill will provide for faster, more efficient and effective criminal history record checks. It will enable employers to have access to information they can use to hire competent and qualified employees while also ensuring their patients are protected.

Under the system created in this bill, home care agencies, nursing homes and temporary employment agencies who provide qualified staff to nursing homes and home care agencies would submit a prospective employee's personal information and fingerprints to DOH who in turn will forward the information to DCJS for an FBI criminal record check. DCJS would then forward the employee's criminal history record check to DOH for a determination of whether such employee is qualified to work in the home care or nursing home industry. Prospective employees would provide a sworn statement, which is not required to be notarized, to the employer upon application for employment.

Moreover, this bill should significantly decrease the fiscal impact to the state in future years because it creates a system to collect and maintain an employee's criminal background check information, thus eliminating the need for duplicative checks as are required by the current regulations. The federal statute used to implement current regulation does not allow for the creation of such a system and thus employers must check an employee's criminal history each and every time a worker moves to a different work setting. This is burdensome to the employee and very costly and time consuming for the employer.

Lastly, both the nursing home and home care industries experience a great amount of turnover, something recognized by DOH in the justification for its current regulation. The creation of a system which collects and maintains the employee's criminal history information provides both employers and employees with an efficient and cost effective method of checking to see whether an employee is eligible to work in these industries.