Section 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 or  article  twenty-eight-E  of
  the  public  health  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 for endangering the welfare of an incompetent  or  physically
  disabled  person pursuant to section 260.25 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 sections 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.