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:

  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 or is 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 substantial 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 substan-
tial  unsupervised  or unrestricted 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 forty-five-b of the executive  law,  concerning  each  (A)
prospective  operator,  employee  or volunteer of such provider who will
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

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  EXCEPT  ANY  PERSON  RECEIVING FAMILY CARE OR FAMILY
BASED TREATMENT SERVICES, WHO WILL HAVE REGULAR AND SUBSTANTIAL UNSUPER-
VISED  OR  UNRESTRICTED  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, 7 and 8 of  section  845-b  of  the
executive  law, as amended by chapter 769 of the laws of 2005, the clos-
ing 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 and two new paragraphs  (f)  and  (g)  are
added to subdivision 1 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.
  (F) "SAFETY ASSESSMENT" SHALL MEAN A SAFETY  REVIEW  CONDUCTED  BY  AN
AUTHORIZED  AGENCY  OR PROSPECTIVE EMPLOYER WHICH SHALL INCLUDE, BUT NOT
BE LIMITED TO, A REVIEW OF THE DUTIES OF A  SUBJECT  INDIVIDUAL  WITH  A
CRIMINAL  CONVICTION  OR CHARGE, THE EXTENT TO WHICH SUCH INDIVIDUAL MAY
HAVE CONTACT WITH CLIENTS RECEIVING SERVICES, AND THE STATUS AND  NATURE
OF THE CRIMINAL CHARGE OR CONVICTION.
  (G) "SUMMARY OF THE CRIMINAL HISTORY INFORMATION" SHALL MEAN A COMPRE-
HENSIVE  SYNOPSIS OF CRIMINAL HISTORY INFORMATION WHICH SHALL INCLUDE AN
INDIVIDUALIZED STATEMENT FOR  EACH  PENDING  CRIMINAL  CHARGE,  CRIMINAL
CONVICTIONS  WHICH  HAVE  NOT  BEEN  VACATED  OR REVERSED, AND ANY OTHER
INFORMATION THE AUTHORIZED AGENCY TAKES INTO  ACCOUNT  WHEN  DETERMINING
THE ELIGIBILITY OF AN APPLICATION.
  (a)  A  provider  authorized  to  request  a check of criminal history
information pursuant to subdivision two of this section shall  designate
one  authorized  person  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 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 directly participating in  any  deci-
sion  in  regard to such subject individual; and provided, further, that
such other persons shall also be subject to the confidentiality require-
ments and all other provisions of this section. [In the case of requests
made pursuant to article twenty-eight-E of the public health law,]  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

A. 1071                             3

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
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 a subject individual for whom criminal history information
is available by law; (ii) FOR EACH CRIMINAL HISTORY CHECK REQUESTED, the
specific duties which qualify the provider to request a check of  crimi-
nal history information 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  as may be necessary to be established by the
authorized agency in consultation with the division, and promptly trans-
mit 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

A. 1071                             4

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
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

A. 1071                             5

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)  Where the criminal history information concerning a subject indi-
vidual reveals a felony conviction at any time  for  a  sex  offense,  a
felony  conviction  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 crimi-
nal  history  information  obtained  pursuant  to  section  twenty-eight
hundred  ninety-nine-a  of  the  public  health  law, where the criminal
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 jurisdiction[,]; the
authorized agency shall  deny  or  disapprove  the  application  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 employee's
eligibility for employment by the provider, OR VOLUNTEER SERVICE WITH  A
PROVIDER  OF  SERVICE  WHO  CONTRACTS  WITH, IS APPROVED OR IS OTHERWISE
AUTHORIZED BY THE OFFICE OF MENTAL HEALTH OR THE OFFICE OF MENTAL RETAR-
DATION AND 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 HISTORY
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 THREE 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; PROVIDED, HOWEVER, THAT WHEN THE AUTHORIZED
AGENCY HOLDS THE APPLICATION, RENEWAL, OR EMPLOYMENT IN ABEYANCE  PURSU-
ANT  TO  THIS  SUBPARAGRAPH, SUCH AGENCY SHALL CONTACT THE ARRESTING LAW
ENFORCEMENT AGENCY, DISTRICT ATTORNEY OR COURT IN THE COUNTY WHERE  SUCH
CHARGE  IS PENDING AND MAKE REASONABLE EFFORTS TO DETERMINE WHETHER SUCH
CHARGE HAS BEEN RESOLVED; OR

A. 1071                             6

  (II) ADVISE THE PROVIDER OF SERVICES  THAT  IT  MAY  ACT  ON  ITS  OWN
DISCRETION,  IF  SUCH  PROVIDER  PERFORMS A SAFETY ASSESSMENT AND DETER-
MINES, IN  A  MANNER  CONSISTENT  WITH  ARTICLE  TWENTY-THREE-A  OF  THE
CORRECTION LAW, THAT APPROVAL OF THE APPLICATION WILL NOT POSE AN UNREA-
SONABLE  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
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  PROMPTLY  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, UNLESS THE AUTHORIZED AGENCY DETERMINES THAT THE SUBJECT INDI-
VIDUAL  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 OPERATING CERTIFICATE OF THE FAMILY CARE HOME OR FAMILY BASED TREAT-
MENT  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 PROMPTLY CEASE AND
DESIST FROM PERMITTING, SUCH PERSON FROM OPERATING, RESIDING OR CONTINU-
ING 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 JEOPARDIZE THE HEALTH, SAFE-
TY, OR WELFARE OF THE CLIENT OR CLIENTS OF THE FAMILY CARE HOME OR FAMI-
LY  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  FAMILY  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

A. 1071                             7

  (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
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 to deny employment, the authorized agency shall
[afford] NOTIFY the subject individual THAT HE OR SHE HAS THE  RIGHT  TO
an opportunity to explain, in writing, why the application should not be
denied. SUCH NOTIFICATION SHALL BE IN WRITING AND:
  (I) INCLUDE A SUMMARY OF THE CRIMINAL HISTORY INFORMATION;
  (II)  INCLUDE  A COPY OF ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW;
AND
  (III) INFORM THE SUBJECT INDIVIDUAL HOW TO OBTAIN AND SEEK  CORRECTION
OF HIS OR HER CRIMINAL HISTORY INFORMATION.
  [(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-

A. 1071                             8

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.
  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.
  8.  A provider shall advise the authorized agency when a subject indi-
vidual 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 maintained 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.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that section one of  this
act  and  the  amendments  to paragraphs (b) and (d) of subdivision 5 of
section 845-b of the executive law made by section two of this act shall
apply to family care homes and family based treatment programs issued an
initial operating certificate, or a renewal  of  an  existing  operating
certificate, on or after the effective date of this act.