Title: Section 402.3 - Definitions

Section 402.3 Definitions. For purposes of this Part, the following terms shall have the following meanings.

(a) "Authorized person" means each individual designated by a provider who is authorized to request, receive and review criminal history information in accordance with this Part.

(b) "Commissioner" means the Commissioner of the New York State Department of Health.

(c) "Criminal history information" means a record of pending New York State criminal charges, New York State criminal convictions which have not been vacated or reversed, information from the Federal Bureau of Investigation (FBI) obtained as a result of a national criminal history record check, and certificates of relief from disabilities or certificates of good conduct filed pursuant to subdivision two of section seven hundred five of the Correction Law and which the Division is required to maintain pursuant to subdivision (6) of section 837 of the Executive Law.

(d) "Criminal conviction" means a judgment or sentence for a charge of a felony or misdemeanor under New York State law or a comparable crime under any other jurisdiction.

(e) "Department" means the New York State Department of Health.

(f) "Determination" means the decision made by the Department after reviewing criminal history information to approve or disapprove a prospective employee’s eligibility for employment by a provider.

(g) "Division" means the New York State Division of Criminal Justice Services.

(h) "Permanent record" means a permanent, written record of a determination and the criminal history information maintained by the Department.

(i) "Employee in direct care and supervision" means

(1) any unlicensed person employed by or used by a nursing home, licensed pursuant to Article 28 of the Public Health Law, who has physical access to a resident’s living quarters, or any unlicensed person providing face-to-face care following the resident's care plan in accordance with Section 410.2(h) of this Title;

(2) any unlicensed person employed by or used by a certified home health agency, licensed home care services agency, or long term home health care program pursuant to Article 36 of the Public Health Law, providing face-to-face care following the professional or paraprofessional plan of care developed for the individual patient in accordance with section 766.3 or 763.6 of this Title;

(3) any unlicensed person employed by or used by an adult home, enriched housing program, or residence for adults who provides residents face-to-face care or has physical access to a resident’s living quarters; or

(4) any unlicensed person employed by or used by a hospice program certified under Article 40 of the Public Health Law who provides patients face-to-face care following the professional or paraprofessional plan of care developed for the individual patient in accordance with section 793.4 of this Title.

(j) "Prospective employee" means any person to be employed or used by a provider, including those persons provided by a temporary employment agency, to provide direct care or supervision to patients, residents or clients, and whom the provider reasonably expects to hire, employ or use, where such person is hired, employed or used by:

(i) a residential health care facility on or after September 1, 2006;

(ii) a certified home health agency, licensed home care services agency, or long term home health care program on or after September 1, 2006;

(iii) an adult home, enriched housing program, or residence for adults on or after January 1, 2015; or

(iv) a hospice program on or after April 1, 2018.

Persons licensed pursuant to Title 8 of the Education Law or Article 28-D of the Public Health Law are excluded from the meaning of the term. Such term shall not include volunteers.

(k) "Provider" means any entity subject to this Part as enumerated in section 402.2 of this Part.

(l) "Subject individual" means a person for whom a provider is authorized to request a check of criminal history information pursuant to section 845-b of the Executive Law, Article 28-E of the Public Health Law, and this Part.

(m) "Temporary employee" means a prospective employee who has been temporarily approved by a provider for employment after a request for a criminal history record check and pending a determination by the Department.