2012 New York Consolidated Laws
PBH - Public Health
Article 28-E - (2899 - 2899-A) REVIEW OF CRIMINAL HISTORY INFORMATION CONCERNING PROSPECTIVE EMPLOYEES OF NURSING HOMES AND HOME CARE SERVICES AGENCIES
2899-A - Requests for criminal history information concerning prospective employees.

 
    §   2899-a.  Requests  for  criminal  history  information  concerning
  prospective employees. 1. A provider shall request that  the  department
  check,  and  upon  such request the department shall check its permanent
  record according to this section for a determination  on  a  prospective
  employee.  If  a  permanent  record  does  not exist for the prospective
  employee, the department shall be  authorized  to  request  and  receive
  criminal  history  information  concerning the prospective employee from
  the division  of  criminal  justice  services  in  accordance  with  the
  provisions  of  section eight hundred forty-five-b of the executive law.
  Access to and the use of such  information  shall  be  governed  by  the
  provisions of such section. The division of criminal justice services is
  authorized to submit fingerprints to the federal bureau of investigation
  for a national criminal history record check.
    2.  To  the  extent  permitted by law, a provider shall request from a
  prospective employee a sworn statement disclosing any prior  finding  of
  patient or resident abuse, or a criminal conviction in this state or any
  other  jurisdiction.  Providers  shall  evaluate  such statements in all
  hiring  decisions,  including  any  temporary  approvals  allowed  under
  subdivision   eleven  of  section  eight  hundred  forty-five-b  of  the
  executive law and subdivision ten of this section.
    3. No person who has been fingerprinted pursuant to this  article  and
  whose  fingerprints remain on file with the division of criminal justice
  services shall be required to undergo fingerprinting for purposes  of  a
  new state check required by this article.
    4.  The  commissioner  shall  promulgate  all  rules  and  regulations
  necessary to implement the  provisions  of  this  article,  which  shall
  include  convenient  procedures  for  prospective  employees 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.
    5. Nothing in this article shall be construed or interpreted to in any
  way diminish  the  integrity  of  any  collective  bargaining  agreement
  negotiated  on  or  before  April  first,  two  thousand five between an
  employer and any certified or authorized collective bargaining agent for
  employees, or to diminish rights which accrue to such employees pursuant
  to such agreements.
    6. The department may accept digital fingerprint images or  any  other
  acceptable   technological   devices  used  to  obtain  and/or  transmit
  fingerprint images for the purposes of this article, as provided for  in
  the  rules  and  regulations  created  by  the  commissioner pursuant to
  subdivision four of this section. To  the  extent  funds  are  available
  therefor,  grants  to  assist  and facilitate the purchase of technology
  shall be made available  to  providers  who  demonstrate  the  need  for
  financial assistance as determined by the department.
    7.  The  department promptly shall make all determinations and actions
  required by subdivision five of section eight  hundred  forty-five-b  of
  the  executive  law upon receipt of the information from the division of
  criminal justice services and the federal bureau of  investigation.  The
  department  shall  create  a permanent record, update the information in
  accordance with section eight hundred forty-five-b of the executive  law
  and make such records available to providers pursuant to this section.
    8.   The   department   shall   allow  all  providers  access  to  any
  determination made upon a prospective employee  at  such  time  as  such
  prospective  employee  presents  himself or herself to such provider for
  employment. In the event that the prospective employee has  a  permanent
  record  already  on  file with the department, this information promptly
  shall be made available  to  the  provider  who  intends  to  hire  such
  prospective employee.

    9.  (a)  In  the event that funds are appropriated in any given fiscal
  year for the reimbursement for the  costs  of  providing  such  criminal
  history  information,  reimbursement  shall  be  made  available  in  an
  equitable  and  direct  manner  for  the  projected  cost  of  the   fee
  established pursuant to law by the division of criminal justice services
  for  processing a criminal history information check, the fee imposed by
  the federal bureau of investigation  for  a  national  criminal  history
  check,  and  costs  associated  with  obtaining  the fingerprints to all
  providers licensed, but not certified under article thirty-six  of  this
  chapter, including those that are subject to this article and are unable
  to  access  direct reimbursement from state and/or federal funded health
  programs.
    (b) Residential health care facilities licensed  pursuant  to  article
  twenty-eight of this chapter and certified home health care agencies and
  long-term  home  health  care programs certified or approved pursuant to
  article thirty-six of this chapter, may, subject to the availability  of
  federal  financial  participation, claim as reimbursable costs under the
  medical  assistance  program,  costs  reflecting  the  fee   established
  pursuant  to  law  by  the  division  of  criminal  justice services for
  processing a criminal history information check, the fee imposed by  the
  federal  bureau  of investigation for a national criminal history check,
  and costs associated with obtaining the fingerprints, provided, however,
  that for the purposes  of  determining  rates  of  payment  pursuant  to
  article  twenty-eight  of  this  chapter  for  residential  health  care
  facilities, such reimbursable fees  and  costs  shall  be  reflected  as
  timely as practicable in such rates within the applicable rate period.
    10.  Notwithstanding  subdivision  eleven  of  section  eight  hundred
  forty-five-b of the executive  law,  a  certified  home  health  agency,
  licensed home care services agency or long term home health care program
  certified, licensed or approved under article thirty-six of this chapter
  or  a  home  care services agency exempt from certification or licensure
  under article thirty-six of  this  chapter  may  temporarily  approve  a
  prospective   employee   while  the  results  of  the  criminal  history
  information check and the determination are pending, upon the  condition
  that the provider conducts appropriate direct observation and evaluation
  of  the temporary employee, while he or she is temporarily employed, and
  the care recipient. The results of such observations shall be documented
  in the temporary employee's personnel file and shall be maintained.  For
  purposes   of   providing   such   appropriate  direct  observation  and
  evaluation, the provider shall utilize an individual  employed  by  such
  provider  with  a  minimum of one year's experience working in an agency
  certified,  licensed  or  approved  under  article  thirty-six  of  this
  chapter.  If  the  temporary  employee  is  working  under contract with
  another  provider  certified,  licensed  or   approved   under   article
  thirty-six  of this chapter, such contract provider's appropriate direct
  observation  and  evaluation  of  the  temporary  employee,   shall   be
  considered   sufficient   for   the  purposes  of  complying  with  this
  subdivision.
    11. No provider shall seek, directly or indirectly, to obtain  from  a
  prospective employee, temporary employee or employee compensation in any
  form  for  the  payment of the fee or any facility costs associated with
  obtaining the  criminal  history  information  check  required  by  this
  article.
    12. This article shall be deemed to supersede and apply in lieu of any
  local  laws  or  laws  of  any political subdivision of the state or any
  regulations of the department requiring a criminal history record  check
  to the extent provided for in this article.