Bill Text: NY A01071 | 2011-2012 | General Assembly | Introduced
Bill Title: Relates to the review of criminal history information of certain persons rendering community based services to individuals with mental illness or mental retardation and developmental disabilities.
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Introduced - Dead) 2012-01-04 - referred to mental health [A01071 Detail]
Download: New_York-2011-A01071-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 1071 2011-2012 Regular Sessions I N A S S E M B L Y (PREFILED) January 5, 2011 ___________ Introduced by M. of A. ORTIZ -- read once and referred to the Committee on Mental Health 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 mental retardation and developmental disabilities THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision (a) of section 31.35 of the mental hygiene law, 2 as amended by chapter 575 of the laws of 2004, is amended to read as 3 follows: 4 (a) Every provider of services who contracts with or is approved or IS 5 otherwise authorized by the office to provide services, except (1) a 6 department facility, (2) a hospital as defined in article twenty-eight 7 of the public health law, or (3) a licensed professional under title 8 eight of the education law who does not have employees or volunteers who 9 will have regular and substantial unsupervised or unrestricted physical 10 contact with the clients of such provider, and every applicant to be 11 such a provider of services except (i) a department facility, (ii) a 12 hospital as defined in article twenty-eight of the public health law, or 13 (iii) a licensed professional under title eight of the education law who 14 does not have employees or volunteers who will have regular and substan- 15 tial unsupervised or unrestricted physical contact with the clients of 16 such provider, shall request that the office check, and upon such 17 request the office shall request and shall be authorized to receive from 18 the division of criminal justice services criminal history information, 19 as such phrase is defined in paragraph (c) of subdivision one of section 20 eight hundred forty-five-b of the executive law, concerning each (A) 21 prospective operator, employee or volunteer of such provider who will 22 have regular and substantial unsupervised or unrestricted physical EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03968-01-1 A. 1071 2 1 contact with the clients of such provider, OR (B) OTHER PERSON OVER THE 2 AGE OF EIGHTEEN WHO IS TO RESIDE IN A FAMILY CARE HOME OR FAMILY BASED 3 TREATMENT PROGRAM EXCEPT ANY PERSON RECEIVING FAMILY CARE OR FAMILY 4 BASED TREATMENT SERVICES, WHO WILL HAVE REGULAR AND SUBSTANTIAL UNSUPER- 5 VISED OR UNRESTRICTED PHYSICAL CONTACT WITH THE CLIENTS OF SUCH 6 PROVIDER. For purposes of this section, "operator" shall include any 7 natural person with an ownership interest in the provider of services. 8 S 2. Paragraph (c) of subdivision 1, paragraphs (a), (b) and (c) of 9 subdivision 3 and subdivisions 4, 5, 7 and 8 of section 845-b of the 10 executive law, as amended by chapter 769 of the laws of 2005, the clos- 11 ing paragraph of subparagraph (iii) of paragraph (c) of subdivision 3 as 12 amended and paragraph (b-1) of subdivision 4 as added by chapter 673 of 13 the laws of 2006 and subdivisions 4 and 5 as amended by chapter 331 of 14 the laws of 2006, are amended and two new paragraphs (f) and (g) are 15 added to subdivision 1 to read as follows: 16 (c) "Criminal history information" means a record of pending criminal 17 charges, criminal convictions which are not vacated or reversed, and 18 certificates filed pursuant to subdivision two of section seven hundred 19 five of the correction law, and which the division is authorized to 20 maintain pursuant to subdivision six of section eight hundred thirty- 21 seven of this article. For the purposes of [criminal history information 22 checks authorized pursuant to article twenty-eight-E of the public 23 health law] THIS SECTION, criminal history information shall also 24 include information from the federal bureau of investigation as a result 25 of a national criminal history record check. 26 (F) "SAFETY ASSESSMENT" SHALL MEAN A SAFETY REVIEW CONDUCTED BY AN 27 AUTHORIZED AGENCY OR PROSPECTIVE EMPLOYER WHICH SHALL INCLUDE, BUT NOT 28 BE LIMITED TO, A REVIEW OF THE DUTIES OF A SUBJECT INDIVIDUAL WITH A 29 CRIMINAL CONVICTION OR CHARGE, THE EXTENT TO WHICH SUCH INDIVIDUAL MAY 30 HAVE CONTACT WITH CLIENTS RECEIVING SERVICES, AND THE STATUS AND NATURE 31 OF THE CRIMINAL CHARGE OR CONVICTION. 32 (G) "SUMMARY OF THE CRIMINAL HISTORY INFORMATION" SHALL MEAN A COMPRE- 33 HENSIVE SYNOPSIS OF CRIMINAL HISTORY INFORMATION WHICH SHALL INCLUDE AN 34 INDIVIDUALIZED STATEMENT FOR EACH PENDING CRIMINAL CHARGE, CRIMINAL 35 CONVICTIONS WHICH HAVE NOT BEEN VACATED OR REVERSED, AND ANY OTHER 36 INFORMATION THE AUTHORIZED AGENCY TAKES INTO ACCOUNT WHEN DETERMINING 37 THE ELIGIBILITY OF AN APPLICATION. 38 (a) A provider authorized to request a check of criminal history 39 information pursuant to subdivision two of this section shall designate 40 one authorized person who shall request a check of criminal history 41 information on behalf of such provider pursuant to this section and 42 review the results of such check. Only such authorized person or his or 43 her designee and the subject individual to whom such criminal history 44 information relates shall have access to such information; provided, 45 however, that criminal history information received by a provider may be 46 disclosed to other persons who are directly participating in any deci- 47 sion in regard to such subject individual; and provided, further, that 48 such other persons shall also be subject to the confidentiality require- 49 ments and all other provisions of this section. [In the case of requests 50 made pursuant to article twenty-eight-E of the public health law,] WITH 51 RESPECT TO INFORMATION OBTAINED FROM THE FEDERAL BUREAU OF INVESTIGATION 52 AS A RESULT OF A NATIONAL CRIMINAL HISTORY RECORD CHECK only information 53 authorized for disclosure under applicable federal laws shall be trans- 54 mitted to the provider. Each provider shall specifically identify to the 55 authorized agency in writing, in advance of disclosure, the authorized 56 person and each other such agent or employee of the provider who is A. 1071 3 1 authorized to have access to the results of a check of criminal history 2 information pursuant to this section. Any person who willfully permits 3 the release of any confidential criminal history information contained 4 in the report to persons not permitted by this section to receive such 5 information shall be guilty of a misdemeanor. 6 (b) A provider requesting a check of criminal history information 7 pursuant to this section shall do so by completing a form established 8 for such purpose by the authorized agency in consultation with the divi- 9 sion. Such form shall include a sworn statement of the authorized 10 person, OR A STATEMENT SUBSCRIBED TO BY THE AUTHORIZED PERSON CONTAINING 11 AN AFFIRMATION OF SUCH PERSON THAT THE STATEMENTS THEREIN ARE TRUE UNDER 12 PENALTIES OF PERJURY, certifying OR AFFIRMING, AS APPLICABLE that: (i) 13 [the] EACH person for whose criminal history information a check is 14 requested is a subject individual for whom criminal history information 15 is available by law; (ii) FOR EACH CRIMINAL HISTORY CHECK REQUESTED, the 16 specific duties which qualify the provider to request a check of crimi- 17 nal history information SHALL BE IDENTIFIED; (iii) the results of [such] 18 ANY criminal history information check MADE PURSUANT TO THIS SECTION 19 will be used by the provider solely for purposes authorized by law; and 20 (iv) the provider and its agents and employees are aware of and will 21 abide by the confidentiality requirements and all other provisions of 22 this article. 23 (c) A provider authorized to request a criminal history information 24 check pursuant to this section may inquire of a subject individual in 25 the manner authorized by subdivision sixteen of section two hundred 26 ninety-six of this chapter. Prior to requesting such information, a 27 provider shall: 28 (i) inform the subject individual in writing that the provider is 29 authorized or, where applicable, required to request a check of his or 30 her criminal history information and review the results of such check 31 pursuant to this section; 32 (ii) inform the subject individual that he or she has the right to 33 obtain, review and seek correction of his or her criminal history infor- 34 mation under regulations and procedures established by the division AND 35 THE FEDERAL BUREAU OF INVESTIGATION; 36 (iii) obtain the signed, informed consent of the subject individual on 37 a form supplied by the authorized agency which indicates that such 38 person has: 39 A. been informed of the right and procedures necessary to obtain, 40 review and seek correction of his or her criminal history information; 41 B. been informed of the reason for the request for his or her criminal 42 history information; 43 C. BEEN INFORMED THAT THE CRIMINAL HISTORY INFORMATION SOUGHT WILL 44 INCLUDE BOTH A NEW YORK STATE AND A NATIONAL CRIMINAL HISTORY INFORMA- 45 TION CHECK; 46 D. consented to such request for a report[; and 47 D.] WITH RESPECT TO BOTH NEW YORK STATE AND NATIONAL CRIMINAL HISTORY 48 INFORMATION; AND 49 E. supplied on the form a current mailing or home address. 50 Upon receiving such written consent, the provider shall receive or 51 obtain [two sets of] THE fingerprints of such subject individual pursu- 52 ant to such regulations as may be necessary to be established by the 53 authorized agency in consultation with the division, and promptly trans- 54 mit them to the authorized agency. 55 4. Procedures for criminal history information checks by authorized 56 agencies. (a) The authorized agency shall pay the processing fee imposed A. 1071 4 1 pursuant to subdivision eight-a of section eight hundred thirty-seven of 2 this article, and [in the case of the authorized agency pursuant to 3 article twenty-eight-E of the public health law,] any fee imposed by the 4 federal bureau of investigation, and shall promptly submit the finger- 5 prints and the processing fee to the division for its full search and 6 retain processing, and [in the case of the authorized agency pursuant to 7 article twenty-eight-E of the public health law,] the division shall 8 immediately forward the fingerprints to the federal bureau of investi- 9 gation for a national criminal history record check. The authorized 10 agency may charge a provider a fee in AN amount no greater than the fee 11 established pursuant to law by the division for processing such a crimi- 12 nal history information check, in such amounts as may be established by 13 the authorized agency and approved by the director of the division of 14 the budget, and [in the case of the authorized agency pursuant to arti- 15 cle twenty-eight-E of the public health law,] a fee no greater than any 16 fee imposed by the federal bureau of investigation. Nothing in this 17 section shall prohibit the authorized agency or provider from claiming 18 the cost of such fees and related costs, including administrative costs, 19 as a reimbursable cost under the medical assistance program, Medicare or 20 other payor, to the extent permitted by state and federal law. 21 (b) THE AUTHORIZED AGENCY IS AUTHORIZED TO RECEIVE CRIMINAL HISTORY 22 INFORMATION FROM THE DIVISION AND THE FEDERAL BUREAU OF INVESTIGATION, 23 AFTER THE RECEIPT OF A REQUEST PURSUANT TO THIS SECTION, IF SUCH REQUEST 24 IS: 25 (I) MADE PURSUANT TO A REQUEST BY AN AUTHORIZED PERSON ON BEHALF OF A 26 PROVIDER AUTHORIZED TO MAKE SUCH A REQUEST PURSUANT TO SUBDIVISION TWO 27 OF THIS SECTION; 28 (II) ACCOMPANIED BY THE COMPLETED FORM DESCRIBED IN PARAGRAPH (B) OF 29 SUBDIVISION THREE OF THIS SECTION; AND 30 (III) ACCOMPANIED BY FINGERPRINTS OF THE SUBJECT INDIVIDUAL OBTAINED 31 PURSUANT TO THIS SECTION. 32 (C) The division shall promptly provide requested state criminal 33 history information to the authorized agency and, [in accordance with 34 article twenty-eight-E of the public health law, the department of 35 health is authorized also to receive criminal history information from 36 the federal bureau of investigation, after the receipt of a request 37 pursuant to this section if such request is: 38 (i) made pursuant to a request by an authorized person on behalf of a 39 provider authorized to make such a request pursuant to subdivision two 40 of this section; 41 (ii) accompanied by the completed form described in this section; and 42 (iii) accompanied by fingerprints of the subject individual obtained 43 pursuant to this section. 44 (b-1) The division] ALSO shall promptly forward a set of the subject 45 individual's fingerprints to the federal bureau of investigation for the 46 purpose of a nationwide criminal history record check to determine 47 whether such applicant has been convicted of a criminal offense in any 48 state or federal jurisdiction. The division shall forward the results of 49 such nationwide search to the authorized agency in the same form and 50 manner as the criminal history report created and provided by the divi- 51 sion pursuant to this section. 52 [(c)] (D) Criminal history information provided by the division pursu- 53 ant to this section shall be furnished only by mail or other method of 54 secure and confidential delivery, addressed to the authorized agency. 55 Such information and the envelope in which it is enclosed, if any, shall A. 1071 5 1 be prominently marked "confidential", and shall at all times be main- 2 tained by the authorized agency in a secure place. 3 5. After reviewing any criminal history information provided by the 4 division concerning a subject individual, the authorized agency shall 5 take the following actions: 6 (a) Where the criminal history information concerning a subject indi- 7 vidual reveals a felony conviction at any time for a sex offense, a 8 felony conviction within the past ten years involving violence, or a 9 conviction for endangering the welfare of an incompetent or physically 10 disabled person pursuant to section 260.25 of the penal law, OR ANY 11 COMPARABLE OFFENSE IN ANY OTHER JURISDICTION; and in the case of crimi- 12 nal history information obtained pursuant to section twenty-eight 13 hundred ninety-nine-a of the public health law, where the criminal 14 history information concerning a subject individual reveals a conviction 15 at any time of any class A felony; a conviction within the past ten 16 years of any class B or C felony, any class D or E felony defined in 17 article one hundred twenty, one hundred thirty, one hundred fifty-five, 18 one hundred sixty, one hundred seventy-eight or two hundred twenty of 19 the penal law; or any crime defined in sections 260.32 or 260.34 of the 20 penal law; or any comparable offense in any other jurisdiction[,]; the 21 authorized agency shall deny or disapprove the application for or 22 renewal of the operating certificate, contract, approval, employment of 23 the subject individual or other authorization to provide services, or 24 direct the provider to deny employment, as applicable, unless the 25 authorized agency determines, in its discretion, that approval of the 26 application or renewal or employment will not in any way jeopardize the 27 health, safety or welfare of the beneficiaries of such services. 28 (b) Where the criminal history information concerning a subject indi- 29 vidual reveals a conviction for a crime other than one set forth in 30 paragraph (a) of this subdivision, the authorized agency may deny the 31 application or renewal, or direct the provider to deny employment of the 32 subject individual, or approve or disapprove the prospective employee's 33 eligibility for employment by the provider, OR VOLUNTEER SERVICE WITH A 34 PROVIDER OF SERVICE WHO CONTRACTS WITH, IS APPROVED OR IS OTHERWISE 35 AUTHORIZED BY THE OFFICE OF MENTAL HEALTH OR THE OFFICE OF MENTAL RETAR- 36 DATION AND DEVELOPMENTAL DISABILITIES, consistent with article twenty- 37 three-A of the correction law. 38 (c) Where the criminal history information concerning a subject indi- 39 vidual reveals a charge for any felony, ANY CRIME IDENTIFIED IN PARA- 40 GRAPH (A) OF THIS SUBDIVISION, OR FOR ANY COMPARABLE OFFENSE IN ANOTHER 41 JURISDICTION, the authorized agency shall, and for any misdemeanor, OR 42 ANY COMPARABLE OFFENSE IN ANOTHER JURISDICTION, the authorized agency 43 may hold the application, renewal or employment in abeyance until the 44 charge is finally resolved, PROVIDED, HOWEVER, IF THE CRIMINAL HISTORY 45 INFORMATION CONCERNING A SUBJECT INDIVIDUAL REVEALS A CHARGE FOR ANY 46 CRIME NOT IDENTIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, OR A COMPARA- 47 BLE OFFENSE IN ANOTHER JURISDICTION, WHICH IS MORE THAN THREE YEARS OLD 48 AND WHERE INFORMATION NECESSARY TO RESOLVE THE CHARGE IS NOT READILY 49 AVAILABLE TO THE AUTHORIZED AGENCY, THE AUTHORIZED AGENCY MAY EITHER: 50 (I) HOLD THE APPLICATION, RENEWAL, OR EMPLOYMENT IN ABEYANCE UNTIL THE 51 CHARGE IS FINALLY RESOLVED; PROVIDED, HOWEVER, THAT WHEN THE AUTHORIZED 52 AGENCY HOLDS THE APPLICATION, RENEWAL, OR EMPLOYMENT IN ABEYANCE PURSU- 53 ANT TO THIS SUBPARAGRAPH, SUCH AGENCY SHALL CONTACT THE ARRESTING LAW 54 ENFORCEMENT AGENCY, DISTRICT ATTORNEY OR COURT IN THE COUNTY WHERE SUCH 55 CHARGE IS PENDING AND MAKE REASONABLE EFFORTS TO DETERMINE WHETHER SUCH 56 CHARGE HAS BEEN RESOLVED; OR A. 1071 6 1 (II) ADVISE THE PROVIDER OF SERVICES THAT IT MAY ACT ON ITS OWN 2 DISCRETION, IF SUCH PROVIDER PERFORMS A SAFETY ASSESSMENT AND DETER- 3 MINES, IN A MANNER CONSISTENT WITH ARTICLE TWENTY-THREE-A OF THE 4 CORRECTION LAW, THAT APPROVAL OF THE APPLICATION WILL NOT POSE AN UNREA- 5 SONABLE RISK TO THE HEALTH, SAFETY OR WELFARE OF THE BENEFICIARIES OF 6 SUCH SERVICES. 7 (d) WHERE THE SUBJECT INDIVIDUAL IS A NATURAL PERSON OPERATOR OF A 8 FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER, OR A PERSON OVER 9 THE AGE OF EIGHTEEN WHO IS TO RESIDE, OR RESIDES, IN A FAMILY CARE HOME 10 OR FAMILY BASED TREATMENT PROVIDER: 11 (I) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI- 12 VIDUAL REVEALS A CONVICTION FOR ANY CRIME IDENTIFIED IN PARAGRAPH (A) OF 13 THIS SUBDIVISION, THE AUTHORIZED AGENCY SHALL PROMPTLY ADVISE THE 14 AUTHORIZED PERSON OF THE FAMILY CARE HOME OR FAMILY BASED TREATMENT 15 PROVIDER THAT IT SHALL NOT PERMIT, OR MUST PROMPTLY CEASE AND DESIST 16 FROM PERMITTING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINUING TO 17 RESIDE IN THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT 18 PROVIDER, UNLESS THE AUTHORIZED AGENCY DETERMINES THAT THE SUBJECT INDI- 19 VIDUAL WILL NOT IN ANY WAY JEOPARDIZE THE HEALTH, SAFETY, OR WELFARE OF 20 THE CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMILY BASED TREATMENT 21 PROVIDER. FAILURE TO COMPLY WITH THIS DIRECTIVE SHALL, AS APPLICABLE, 22 CONSTITUTE GROUNDS FOR DENIAL OF AN OPERATING CERTIFICATE OR REMOVAL OF 23 THE OPERATING CERTIFICATE OF THE FAMILY CARE HOME OR FAMILY BASED TREAT- 24 MENT PROGRAM IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SIXTEEN OR 25 THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR 26 (II) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI- 27 VIDUAL REVEALS A CONVICTION FOR ANY CRIME OTHER THAN ONE IDENTIFIED IN 28 PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY MAY PROMPTLY 29 ADVISE THE AUTHORIZED PERSON OF THE FAMILY CARE HOME OR FAMILY BASED 30 TREATMENT PROVIDER IT SHALL NOT PERMIT, OR MUST PROMPTLY CEASE AND 31 DESIST FROM PERMITTING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINU- 32 ING TO RESIDE IN THE FAMILY CARE HOME OR WITH THE FAMILY BASED TREATMENT 33 PROVIDER IF, AFTER PERFORMING A SAFETY ASSESSMENT THE AUTHORIZED AGENCY 34 DETERMINES THAT THE SUBJECT INDIVIDUAL WILL JEOPARDIZE THE HEALTH, SAFE- 35 TY, OR WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMI- 36 LY BASED TREATMENT PROVIDER. FAILURE TO COMPLY WITH THIS DIRECTIVE 37 SHALL, AS APPLICABLE, CONSTITUTE GROUNDS FOR DENIAL OF AN OPERATING 38 CERTIFICATE, OR REMOVAL OF THE OPERATING CERTIFICATE OF THE FAMILY CARE 39 HOME OR FAMILY BASED TREATMENT PROVIDER IN ACCORDANCE WITH THE 40 PROVISIONS OF ARTICLE SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; 41 OR 42 (III) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT 43 INDIVIDUAL REVEALS AN OUTSTANDING CHARGE FOR ANY CRIME IDENTIFIED IN 44 PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY SHALL, AS 45 APPLICABLE, HOLD THE APPLICATION FOR AN OPERATING CERTIFICATE IN ABEY- 46 ANCE UNTIL THE CHARGE IS RESOLVED, OR REQUIRE A SAFETY ASSESSMENT OF THE 47 FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER TO BE PERFORMED, AND 48 SHALL DIRECT THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER OF 49 ANY ACTIONS THAT MUST BE TAKEN TO ENSURE THAT THE SUBJECT INDIVIDUAL 50 WILL NOT IN ANY WAY JEOPARDIZE THE HEALTH, SAFETY, OR WELFARE OF THE 51 CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMILY BASED TREATMENT 52 PROVIDER. FAILURE TO PROMPTLY IMPLEMENT SUCH ACTIONS BY THE FAMILY CARE 53 HOME OR FAMILY BASED TREATMENT PROVIDER SHALL CONSTITUTE GROUNDS FOR 54 REMOVAL OF ITS OPERATING CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS 55 OF ARTICLE SIXTEEN OR THIRTY-ONE OF THE MENTAL HYGIENE LAW; OR A. 1071 7 1 (IV) IF THE CRIMINAL HISTORY INFORMATION CONCERNING SUCH SUBJECT INDI- 2 VIDUAL REVEALS AN OUTSTANDING CHARGE FOR ANY CRIME OTHER THAN ONE IDEN- 3 TIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, THE AUTHORIZED AGENCY MAY, 4 AS APPLICABLE, HOLD THE APPLICATION FOR AN OPERATING CERTIFICATE IN 5 ABEYANCE OR REQUIRE A SAFETY ASSESSMENT OF THE FAMILY CARE HOME OR FAMI- 6 LY BASED TREATMENT PROVIDER TO BE PERFORMED, AND MAY DIRECT THE FAMILY 7 CARE HOME OR FAMILY CARE TREATMENT PROVIDER OF ANY ACTIONS THAT MUST BE 8 TAKEN TO ENSURE THAT THE SUBJECT INDIVIDUAL WILL NOT JEOPARDIZE THE 9 HEALTH, SAFETY, OR WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE 10 HOME OR FAMILY BASED TREATMENT PROVIDER. FAILURE TO PROMPTLY IMPLEMENT 11 SUCH ACTIONS BY THE FAMILY CARE HOME OR FAMILY BASED TREATMENT PROVIDER, 12 IF DIRECTED TO DO SO, SHALL CONSTITUTE GROUNDS FOR REMOVAL OF ITS OPER- 13 ATING CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE SIXTEEN 14 OR THIRTY-ONE OF THE MENTAL HYGIENE LAW. 15 (E) Prior to making a determination to deny an application or renewal, 16 or directing an employer to deny employment, the authorized agency shall 17 [afford] NOTIFY the subject individual THAT HE OR SHE HAS THE RIGHT TO 18 an opportunity to explain, in writing, why the application should not be 19 denied. SUCH NOTIFICATION SHALL BE IN WRITING AND: 20 (I) INCLUDE A SUMMARY OF THE CRIMINAL HISTORY INFORMATION; 21 (II) INCLUDE A COPY OF ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW; 22 AND 23 (III) INFORM THE SUBJECT INDIVIDUAL HOW TO OBTAIN AND SEEK CORRECTION 24 OF HIS OR HER CRIMINAL HISTORY INFORMATION. 25 [(e)] (F) Upon receipt of criminal history information from the divi- 26 sion, the authorized agency may request, and is [entitled] AUTHORIZED to 27 receive, information pertaining to any crime identified in such criminal 28 history information from any state or local law enforcement agency, 29 district attorney, parole officer, probation officer or court for the 30 purposes of determining whether any ground relating to such crime exists 31 for denying an application, renewal, or employment, AND PROVIDED 32 FURTHER, THAT WITH RESPECT TO CRIMES COMMITTED IN THE STATE OF NEW YORK, 33 SUCH AUTHORIZED AGENCY IS ENTITLED TO RECEIVE SUCH INFORMATION. 34 [(f)] (G) The authorized agency shall thereafter promptly notify the 35 provider concerning whether its check has revealed any criminal history 36 information, and if so, what actions shall or may be taken by the 37 authorized agency and the provider. SUCH NOTIFICATION SHALL INCLUDE A 38 WRITTEN SUMMARY BY THE AUTHORIZED AGENCY OF THE CRIMINAL HISTORY INFOR- 39 MATION PROVIDED BY THE DIVISION AND/OR THE FEDERAL BUREAU OF INVESTI- 40 GATION. THE WRITTEN SUMMARY SHALL INCLUDE A NOTATION OF ANY OUTSTANDING 41 CHARGES, IF ANY, ABOUT WHICH THE AUTHORIZED AGENCY IS AWAITING FURTHER 42 INFORMATION CONCERNING THE FINAL DISPOSITION OF SUCH CHARGES. THE 43 AUTHORIZED AGENCY SHALL SUPPLEMENT SUCH NOTIFICATION WHEN THE AUTHORIZED 44 AGENCY RECEIVES INFORMATION FROM THE DIVISION RELATING TO A SUBJECT 45 INDIVIDUAL AS PART OF THE SEARCH AND RETAIN PROCESSING CONDUCTED BY SUCH 46 DIVISION OR WHEN THE AUTHORIZED AGENCY RECEIVES INFORMATION RELATIVE TO 47 THE FINAL DISPOSITION OF AN OUTSTANDING CHARGE. 48 [(g) Where the authorized agency denies the application for or renewal 49 of an operating certificate, contract, approval or other authorization 50 to provide services, or directs a provider to deny employment of the 51 subject individual on account of the subject individual's criminal 52 history information, the notification by the authorized agency shall 53 include a summary of the criminal history information provided by the 54 division.] 55 (h) IN THE EVENT THAT THE INFORMATION OBTAINED BY THE AUTHORIZED AGEN- 56 CY FROM THE DIVISION AND/OR THE FEDERAL BUREAU OF INVESTIGATION INDI- A. 1071 8 1 CATES THAT EITHER ENTITY HAS NO CRIMINAL HISTORY INFORMATION WITH 2 RESPECT TO THE SUBJECT INDIVIDUAL, THE AUTHORIZED AGENCY SHALL NOTIFY 3 THE PROVIDER THAT SUCH INDIVIDUAL HAS NO CRIMINAL HISTORY INFORMATION 4 RECORD. 5 (I) Where the authorized agency directs a provider to deny employment 6 OR VOLUNTEER SERVICE based on criminal history information, the provider 7 must notify the subject individual that such information is the basis of 8 the denial. WHERE THE AUTHORIZED AGENCY DENIES THE ISSUANCE OF AN OPER- 9 ATING CERTIFICATE, CONTRACT, APPROVAL OR OTHER AUTHORIZATION TO PROVIDE 10 SERVICES BASED ON CRIMINAL HISTORY INFORMATION, THE AUTHORIZED AGENCY 11 MUST NOTIFY THE SUBJECT INDIVIDUAL THAT SUCH INFORMATION IS THE BASIS OF 12 THE DENIAL. 13 7. Any criminal history information provided by the division, and any 14 summary of the criminal history information provided by the authorized 15 agency to [an employer] A PROVIDER pursuant to this section is confiden- 16 tial and shall not be available for public inspection; provided, howev- 17 er, nothing in this subdivision shall prevent an authorized agency or 18 provider from disclosing criminal history information at any administra- 19 tive or judicial proceeding relating to the denial or revocation of an 20 application, employment, license or registration. Where the authorized 21 agency denies the application for or renewal of an operating certif- 22 icate, contract, approval or other authorization to provide services, or 23 directs a provider to deny employment OR VOLUNTEER SERVICE of the 24 subject individual, the subject of the criminal history information 25 check conducted pursuant to this section shall be entitled to receive, 26 upon written request, a copy of the summary of the criminal history 27 information provided by the authorized agency to the provider. 28 8. A provider shall advise the authorized agency when a subject indi- 29 vidual is no longer subject to such check. The authorized agency shall 30 inform the division when a subject individual is no longer subject to 31 such check so that the division may terminate its retain processing with 32 regard to such individual. At least once a year, the authorized agency 33 shall be required to conduct a validation of the records maintained by 34 the division, including information obtained from the federal bureau of 35 investigation [pursuant to article twenty-eight-E of the public health 36 law] and provide such results to the authorized agency for purposes of 37 updating the permanent record of such criminal history information 38 results. 39 S 3. This act shall take effect on the one hundred eightieth day after 40 it shall have become a law; provided, however, that section one of this 41 act and the amendments to paragraphs (b) and (d) of subdivision 5 of 42 section 845-b of the executive law made by section two of this act shall 43 apply to family care homes and family based treatment programs issued an 44 initial operating certificate, or a renewal of an existing operating 45 certificate, on or after the effective date of this act.