Bill Text: NY S04428 | 2019-2020 | General Assembly | Introduced
Bill Title: Provides for the review of the criminal history information of prospective residents of nursing homes by the department of health to determine whether such resident has a prior sex offense conviction or a recent completion of the sentence for a criminal conviction; in any such case information on such conviction shall be disclosed to the nursing home.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO HEALTH [S04428 Detail]
Download: New_York-2019-S04428-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4428 2019-2020 Regular Sessions IN SENATE March 11, 2019 ___________ Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law and the executive law, in relation to the review of criminal history information concerning prospective residents of nursing homes The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The public health law is amended by adding a new article 2 28-F to read as follows: 3 ARTICLE 28-F 4 REVIEW OF CRIMINAL HISTORY INFORMATION 5 OF PROSPECTIVE RESIDENTS OF NURSING HOMES 6 Section 2899-b. Definitions. 7 2899-c. Requests for criminal history information concerning 8 prospective residents. 9 § 2899-b. Definitions. As used in this article, the following words 10 and phrases shall have the following meanings: 11 1. "Criminal history information" shall mean a record of pending crim- 12 inal charges, criminal convictions which have not been vacated or 13 reversed, information from the federal bureau of investigation as a 14 result of a national criminal history record check, and certificates 15 filed pursuant to subdivision two of section seven hundred five of the 16 correction law and which the division of criminal justice services is 17 required to maintain pursuant to subdivision six of section eight 18 hundred thirty-seven of the executive law. 19 2. "Determination" shall mean the decision made by the department 20 after reviewing criminal history information to approve or disapprove a 21 prospective resident's eligibility for residence at a nursing home. All 22 such determinations shall be made in accordance with section eight 23 hundred forty-five-c of the executive law. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10362-01-9S. 4428 2 1 3. "Nursing home" shall mean a nursing home as defined in section 2 twenty-eight hundred one of this chapter. 3 4. "Permanent record" shall mean a permanent, written record of a 4 determination and the criminal history information maintained by the 5 department for a period not to exceed ten years. 6 5. "Prospective resident" shall mean any individual, not currently a 7 resident, who files an application for residence in a nursing home and 8 the nursing home has a reasonable expectation to accept such individual 9 as a resident. 10 § 2899-c. Requests for criminal history information concerning 11 prospective residents. 1. A nursing home shall request that the depart- 12 ment check, and upon such request the department shall check its perma- 13 nent record according to this section for a determination on a prospec- 14 tive resident. If a permanent record does not exist for the prospective 15 resident, the department shall be authorized to request and receive 16 criminal history information concerning the prospective resident from 17 the division of criminal justice services in accordance with the 18 provisions of section eight hundred forty-five-c of the executive law. 19 Access to and the use of such information shall be governed by the 20 provisions of such section. The division of criminal justice services is 21 authorized to submit fingerprints to the federal bureau of investigation 22 for a national criminal history record check. 23 2. To the extent permitted by law, a nursing home shall request and 24 receive from a prospective resident a sworn statement disclosing any 25 prior finding as a sex offender, as defined in section one hundred 26 sixty-eight-a of the correction law, or any criminal conviction the 27 sentence for which expired within the previous five years. Nursing homes 28 shall evaluate such statements in all residence decisions, including any 29 temporary approvals allowed under section eight hundred forty-five-c of 30 the executive law and the provisions of this section. The failure or 31 refusal of any prospective resident to provide any consent, information 32 or fingerprints necessary for a determination of such prospective resi- 33 dent's criminal history shall result in the denial of eligibility for 34 residence at the nursing home. 35 3. No person who has been fingerprinted pursuant to this article and 36 whose fingerprints remain on file with the division of criminal justice 37 services shall be required to undergo fingerprinting for purposes of a 38 new state check required by this article. 39 4. The commissioner shall promulgate all rules and regulations neces- 40 sary to implement the provisions of this article, which shall include 41 convenient procedures for prospective residents to verify the accuracy 42 of their criminal history information and, to the extent authorized by 43 law, to have access to relevant documents related thereto. 44 5. The department may accept digital fingerprint images or any other 45 acceptable technological devices used to obtain and/or transmit finger- 46 print images for the purposes of this article, as provided for in the 47 rules and regulations established by the commissioner pursuant to subdi- 48 vision four of this section. To the extent funds are available therefor, 49 grants to assist and facilitate the purchase of technology shall be 50 available to nursing homes which demonstrate the need for financial 51 assistance as determined by the department. 52 6. The department promptly shall make all determinations and actions 53 required by section eight hundred forty-five-c of the executive law upon 54 receipt of the information from the division of criminal justice 55 services and the federal bureau of investigation. The department shall 56 create a permanent record, update the information in accordance withS. 4428 3 1 section eight hundred forty-five-c of the executive law and make such 2 records available to nursing homes pursuant to this section. 3 7. The department shall allow all nursing homes access to any determi- 4 nation made upon a prospective resident at such time as such prospective 5 resident presents himself or herself to such nursing home for residence. 6 In the event that the prospective resident has a permanent record 7 already on file with the department, this information promptly shall be 8 made available to the nursing home which may provide residence to such 9 prospective resident. 10 8. The application fee for residence in a nursing home shall include 11 an additional sum of money sufficient to pay for the projected cost of 12 the fee established by law by the division of criminal justice services 13 for processing a criminal history information check, the fee imposed by 14 the federal bureau of investigation for a national criminal history 15 check, and costs associated with obtaining fingerprints. 16 § 2. The executive law is amended by adding a new section 845-c to 17 read as follows: 18 § 845-c. Requests for criminal history information; prospective nurs- 19 ing home residents. 1. As used in this section: 20 (a) "Authorized person" means the one individual designated by a 21 provider who is authorized to request, receive and review criminal 22 history information pursuant to this section, except that where the 23 number of applications received by a provider is so great that one 24 person cannot reasonably perform the functions of the authorized person, 25 a provider may designate one or more additional persons to serve as 26 authorized persons pursuant to this section. 27 (b) "Criminal history information" means a record of pending criminal 28 charges, criminal convictions which are not vacated or reversed, and 29 certificates filed pursuant to subdivision two of section seven hundred 30 five of the correction law, and which the division is authorized to 31 maintain pursuant to subdivision six of section eight hundred thirty- 32 seven of this article. For the purposes of criminal history information 33 checks authorized pursuant to article twenty-eight-E of the public 34 health law, criminal history information shall also include information 35 from the federal bureau of investigation as a result of a national crim- 36 inal history record check. 37 (c) "Nursing home" means a nursing home as defined in section twenty- 38 eight hundred one of the public health law. 39 (d) "Prospective resident" means any individual, not currently a resi- 40 dent, who files an application for residence in a nursing home and the 41 nursing home has a reasonable expectation to accept such individual as a 42 resident. 43 2. Where a nursing home is required to request a check of criminal 44 history information by the department of health pursuant to article 45 twenty-eight-F of the public health law, such nursing home shall proceed 46 pursuant to the provisions of this section and in a manner consistent 47 with the provisions of article twenty-three-A of the correction law, 48 subdivisions fifteen and sixteen of section two hundred ninety-six of 49 this chapter and all other applicable laws. 50 3. (a) A nursing home required to request a check of criminal history 51 information pursuant to subdivision two of this section shall designate 52 one authorized person who shall request a check of criminal history 53 information on behalf of such nursing home pursuant to this section and 54 review the results of such check. Only such authorized person or his or 55 her designee and the prospective resident to whom such criminal history 56 information relates shall have access to such information; provided,S. 4428 4 1 however, that criminal history information received by a nursing home 2 may be disclosed to other persons who are directly participating in any 3 decision in regard to such prospective resident; and provided, further, 4 that such other persons shall also be subject to the confidentiality 5 requirements and all other provisions of this section. In the case of 6 requests made pursuant to article twenty-eight-F of the public health 7 law, only information authorized for disclosure under applicable federal 8 laws shall be transmitted to the nursing home. Each nursing home shall 9 specifically identify to the department of health in writing, in advance 10 of disclosure, the authorized person and each other such agent or 11 employee of the nursing home who is authorized to have access to the 12 results of a check of criminal history information pursuant to this 13 section. Any person who willfully permits the release of any confiden- 14 tial criminal history information contained in the report to persons not 15 permitted by this section to receive such information shall be guilty of 16 a misdemeanor. 17 (b) A nursing home requesting a check of criminal history information 18 pursuant to this section shall do so by completing a form established 19 for such purpose by the department of health in consultation with the 20 division. Such form shall include a sworn statement of the authorized 21 person certifying that: 22 (i) the person for whose criminal history information a check is 23 requested is a prospective resident for whom criminal history informa- 24 tion is available by law; 25 (ii) the results of such criminal history information check will be 26 used by the nursing home solely for purposes authorized by law; and 27 (iii) the nursing home and its agents and employees are aware of and 28 will abide by the confidentiality requirements and all other provisions 29 of this article. 30 (c) A nursing home required to request a criminal history information 31 check pursuant to this section shall inquire of a prospective resident 32 in the manner authorized by subdivision sixteen of section two hundred 33 ninety-six of this chapter. Prior to requesting such information, a 34 nursing home shall: 35 (i) inform the prospective resident in writing that the nursing home 36 is required to request a check of his or her criminal history informa- 37 tion and review the results of such check pursuant to this section; 38 (ii) inform the prospective resident that he or she has the right to 39 obtain, review and seek correction of his or her criminal history infor- 40 mation under regulations and procedures established by the division; 41 (iii) obtain the signed, informed consent of the prospective resident 42 on a form supplied by the department of health which indicates that such 43 prospective resident has: 44 (A) been informed of the right and procedures necessary to obtain, 45 review and seek correction of his or her criminal history information; 46 (B) been informed of the reason for the request for his or her crimi- 47 nal history information; 48 (C) consented to such request for a report; and 49 (D) supplied on the form a current mailing or home address. 50 Upon receiving such written consent, the nursing home shall receive or 51 obtain two sets of fingerprints of such prospective resident pursuant to 52 such regulations as may be necessary to be established by the department 53 of health in consultation with the division, and promptly transmit them 54 to such department. 55 (d) A prospective resident may withdraw his or her application for 56 residence pursuant to this section, without prejudice, at any timeS. 4428 5 1 before residence is provided, regardless of whether the prospective 2 resident or nursing home has reviewed such prospective resident's crimi- 3 nal history information. 4 4. (a) The department of health shall pay the processing fee imposed 5 pursuant to subdivision eight-a of section eight hundred thirty-seven of 6 this article, and any fee imposed by the federal bureau of investi- 7 gation, and shall promptly submit the fingerprints and the processing 8 fee to the division for its full search and retain processing, and the 9 division shall immediately forward the fingerprints to the federal 10 bureau of investigation for a national criminal history record check. 11 The department of health shall charge a nursing home a fee, payable from 12 the application fee of the appropriate prospective resident, equal to 13 the fee established by law by the division for processing a criminal 14 history information check and the fee imposed by the federal bureau of 15 investigation for a national criminal history check. 16 (b) The division shall provide requested state criminal history infor- 17 mation to the department of health, which is also authorized also to 18 receive criminal history information from the federal bureau of investi- 19 gation, within thirty days of the receipt of a request pursuant to this 20 section if such request is: 21 (i) made pursuant to a request by an authorized person on behalf of a 22 nursing home authorized to make such a request pursuant to subdivision 23 two of this section; 24 (ii) accompanied by the completed form described in this section; and 25 (iii) accompanied by fingerprints of the prospective resident obtained 26 pursuant to this section. 27 (c) The division shall promptly forward a set of the prospective resi- 28 dent's fingerprints to the federal bureau of investigation for the 29 purpose of a nationwide criminal history record check to determine 30 whether such applicant has been convicted of a criminal offense in any 31 state or federal jurisdiction. The division shall forward the results of 32 such nationwide search to the department of health in the same form and 33 manner as the criminal history report created and provided by the divi- 34 sion pursuant to this section. 35 (d) Criminal history information provided by the division pursuant to 36 this section shall be furnished only by certified mail or hand delivery, 37 addressed to the department of health. Such information and the envelope 38 in which it is enclosed, if any, shall be prominently marked "confiden- 39 tial", and shall at all times be maintained by the department of health 40 in a secure place. 41 5. After reviewing any criminal history information provided by the 42 division concerning a subject individual, the department of health shall 43 take the following actions: 44 (a) Where the criminal history information concerning a prospective 45 resident reveals a conviction at any time for a sex offense defined in 46 subdivision two or three of section one hundred sixty-eight-a of the 47 correction law, unless the department of health determines, in its 48 discretion, that approval of the application will not in any way jeop- 49 ardize the health, safety or welfare of the residents and staff of the 50 nursing home. 51 (b) Where the criminal history information concerning a prospective 52 resident reveals a conviction for a crime other than one set forth in 53 paragraph (a) of this subdivision, and the sentence for such crime was 54 completed less than five years prior to the application, the department 55 of health shall inform the nursing home of such conviction, unless the 56 department of health determines, in its discretion, that approval of theS. 4428 6 1 application will not in any way jeopardize the health, safety or welfare 2 of the residents and staff of the nursing home. 3 (c) Where the criminal history information concerning a prospective 4 resident reveals a conviction for a crime other than one set for in 5 paragraph (a) or (b) of this subdivision, the department of health shall 6 not disclose such information to the nursing home. 7 (d) Where the department of health provides criminal history informa- 8 tion concerning a prospective resident to a nursing home, the nursing 9 home shall notify the prospective resident of its receipt of such infor- 10 mation. 11 6. Any criminal history information provided by the division, and any 12 summary of the criminal history information provided by the department 13 of health to a nursing home pursuant to this section is confidential and 14 shall not be available for public inspection. The subject of the crimi- 15 nal history information check conducted pursuant to this section shall 16 be entitled to receive, upon written request, a copy of the summary of 17 the criminal history information provided by the department of health to 18 the nursing home. 19 7. Provided that the department of health or a nursing home reasonably 20 and in good faith complies with the provisions of this section, there 21 shall be no criminal or civil liability on the part of and no cause of 22 action for damages shall accrue against the department of health, any 23 nursing home or employee thereof on account of, arising out of or relat- 24 ing to criminal history information pursuant to this section, or any act 25 or omission relating to criminal history information pursuant to this 26 section. 27 8. Fingerprints received by the division pursuant to this section 28 shall be used only to assist the division in providing criminal history 29 information to the department of health under this section. 30 9. The department of health in consultation with the commissioner 31 shall promulgate any rules and regulations necessary to implement the 32 provisions of this section, which shall include convenient procedures 33 for persons to promptly verify the accuracy of their criminal history 34 information and, to the extent authorized by law, to have access to 35 relevant documents related thereto. 36 § 3. This act shall take effect on the first of September next 37 succeeding the date on which it shall have become a law.
