Section 402.6 - Criminal History Record Check Process

Section 402.6 Criminal History Record Check Process.

(a) The provider shall ensure the submission of a request for a criminal history record check for each prospective employee. If a permanent record does not exist for the prospective employee, the Department shall be authorized to request and receive criminal history information from the Division concerning the prospective employee in accordance with the provisions of section 845-b of the Executive Law. Access to and the use of such information shall be governed by the provisions of such section of the Executive Law. The Division is authorized to submit fingerprints to the FBI for a national criminal history record check.

(b) A provider requesting a criminal history record check pursuant to this Part shall do so by completing and submitting a form developed and provided by the Department after consultation with the Division and transmitting two sets of fingerprints to the Department. An authorized person, and only an authorized person, shall complete such form and shall submit the original with the authorized person’s signature (not a facsimile signature) and two sets of fingerprints to the Department not more than ten days (excluding Saturdays, Sundays and legal holidays) after taking the fingerprints of the prospective employee. The Department shall maintain such form, in the form and format prescribed by the Department, which:

(1) identifies the name of each person for whom the provider requests a criminal record check, and attests that each such person is a prospective employee of the provider, and, as such, the person is a subject individual, as defined in this Part;

(2) identifies the specific duties of the subject individual which qualify the provider to request a check of the subject individual’s criminal history information;

(3) attests that the results of the criminal history record check will be used by the provider solely for the purposes authorized by law; and

(4) attests that the provider, its agents, and employees are aware of and will abide by the confidentiality requirements and all other provisions of Public Health Law Article 28-E and Executive Law section 845-b, as they may from time to time be amended.

(c)(1) In obtaining fingerprints as required by this Part, the provider shall require that the prospective employee present two forms of identification. One form shall be a government-issued identification containing the prospective employee’s signature. Examples of such identification are a valid driver’s license or a Department of Motor Vehicle ID, a current passport, valid military identification or valid school identification. At least one of the two forms of identification shall have a photograph of the prospective employee.

(2) If an external entity is used by the provider to obtain fingerprints, the provider shall ensure that the external entity shall require two of the forms of identification listed in paragraph (1) of this subdivision and that the external entity completes its part of the Department form and returns the fingerprints and the Department form required by this section only to the provider.

(3) If a fingerprint form is rejected by the division or the FBI the provider shall resubmit new prints within 14 days of notice from the Department of the rejection.

(d) A provider may temporarily approve a prospective employee while the results of the criminal history record check are pending. The provider shall implement the supervision requirements identified in section 402.4 of this Part, applicable to the provider, during the period of temporary employment.

(e) For subject individuals who have had a previous criminal history record check and determination issued by the Department, or for whom a criminal history record check has been submitted to the Department and a determination is pending, the provider shall submit a request for an expedited review in lieu of a regular submission provided for in this Part in the form, format and manner required by the Department. If the Department finds that an expedited request is not warranted, the Department will inform the authorized party that a regular submission is required, including fingerprints, so that a new criminal history record check can be conducted.

Effective Date: 
Wednesday, December 2, 2009
Doc Status: 
Complete