A8470A-2011 Actions

• Feb 14, 2012: print number 8470a
• Feb 14, 2012: amend (t) and recommit to mental health
• Jan 4, 2012: referred to mental health
• Jun 17, 2011: referred to mental health

A8470A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 8470--A
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 June 17, 2011
 
 Introduced  by M. of A. ORTIZ -- read once and referred to the Committee
 on Mental Health -- recommitted to the Committee on Mental  Health  in
 accordance  with Assembly Rule 3, sec. 2 -- committee discharged, bill
 amended, ordered reprinted as amended and recommitted to said  commit
 tee
 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
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD03968-05-2
 
       A. 8470--A                          2
 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
 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
 
       A. 8470--A                          3
 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
 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
 
       A. 8470--A                          4
 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.
 5.  After  reviewing  any criminal history information provided by the
 division concerning a subject individual, the  authorized  agency  shall
 take the following actions:

 
       A. 8470--A                          5
 (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.
 (d) WHERE THE SUBJECT INDIVIDUAL IS A NATURAL  PERSON  OPERATOR  OF  A
 FAMILY  CARE  HOME  OR FAMILY BASED TREATMENT PROVIDER, OR A PERSON OVER
 
       A. 8470--A                          6
 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
 HEALTH, SAFETY, OR WELFARE OF THE CLIENT OR CLIENTS OF THE  FAMILY  CARE
 HOME  OR  FAMILY BASED TREATMENT PROVIDER. FAILURE TO PROMPTLY IMPLEMENT
 
       A. 8470--A                          7
 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
 MUST NOTIFY THE SUBJECT INDIVIDUAL THAT SUCH INFORMATION IS THE BASIS OF
 THE DENIAL.
 
       A. 8470--A                          8
 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.
 12.]  11.  The authorized agency in consultation with the commissioner
 shall promulgate any rules and regulations necessary  to  implement  the
 
       A. 8470--A                          9
 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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