§ 2899-a. Requests for criminal history information concerning
prospective employees. 1. A provider shall request that the department
check, and upon such request the department shall check its permanent
record according to this section for a determination on a 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 concerning the prospective employee from
the division of criminal justice services in accordance with the
provisions of section eight hundred forty-five-b of the executive law.
Access to and the use of such information shall be governed by the
provisions of such section. The division of criminal justice services is
authorized to submit fingerprints to the federal bureau of investigation
for a national criminal history record check.

2. To the extent permitted by law, a provider shall request from a
prospective employee a sworn statement disclosing any prior finding of
patient or resident abuse, or a criminal conviction in this state or any
other jurisdiction. Providers shall evaluate such statements in all
hiring decisions, including any temporary approvals allowed under
subdivision eleven of section eight hundred forty-five-b of the
executive law and subdivision ten of this section.

3. No person who has been fingerprinted pursuant to this article and
whose fingerprints remain on file with the division of criminal justice
services shall be required to undergo fingerprinting for purposes of a
new state check required by this article.

4. The commissioner shall promulgate all rules and regulations
necessary to implement the provisions of this article, which shall
include convenient procedures for prospective employees to promptly
verify the accuracy of their criminal history information and, to the
extent authorized by law, to have access to relevant documents related
thereto.

5. Nothing in this article shall be construed or interpreted to in any
way diminish the integrity of any collective bargaining agreement
negotiated on or before April first, two thousand five between an
employer and any certified or authorized collective bargaining agent for
employees, or to diminish rights which accrue to such employees pursuant
to such agreements.

6. The department may accept digital fingerprint images or any other
acceptable technological devices used to obtain and/or transmit
fingerprint images for the purposes of this article, as provided for in
the rules and regulations created by the commissioner pursuant to
subdivision four of this section. To the extent funds are available
therefor, grants to assist and facilitate the purchase of technology
shall be made available to providers who demonstrate the need for
financial assistance as determined by the department.

7. The department promptly shall make all determinations and actions
required by subdivision five of section eight hundred forty-five-b of
the executive law upon receipt of the information from the division of
criminal justice services and the federal bureau of investigation,
provided that when rendering a determination to propose denial of
employment eligibility, the department shall provide the individual who
is the subject of the criminal history information check with a copy of
such criminal history information and a copy of article twenty-three-A
of the correction law and inform such individual of his or her right to
seek correction of any incorrect information contained in such criminal
history information pursuant to the regulations and procedures
established by the division of criminal justice services. The department
shall create a permanent record, update the information in accordance
with section eight hundred forty-five-b of the executive law and make
only records or information received from the division of criminal
justice services available to providers pursuant to this section.

8. The department shall allow all providers access to any
determination made upon a prospective employee at such time as such
prospective employee presents himself or herself to such provider for
employment. In the event that the prospective employee has a permanent
record already on file with the department, this information promptly
shall be made available to the provider who intends to hire such
prospective employee.

9. * (a) In the event that funds are appropriated in any given fiscal
year for the reimbursement for the costs of providing such criminal
history information, reimbursement shall be made available in an
equitable and direct manner for the projected cost of the fee
established pursuant to law by the division of criminal justice services
for processing a criminal history information check, the fee imposed by
the federal bureau of investigation for a national criminal history
check, and costs associated with obtaining the fingerprints to all
providers licensed, but not certified under article thirty-six of this
chapter, providers certified under article forty of this chapter, and
all adult care facilities licensed under article seven of the social
services law, including those that are subject to this article and are
unable to access direct reimbursement from state and/or federal funded
health programs.

* NB Effective until March 31, 2029

* (a) In the event that funds are appropriated in any given fiscal
year for the reimbursement for the costs of providing such criminal
history information, reimbursement shall be made available in an
equitable and direct manner for the projected cost of the fee
established pursuant to law by the division of criminal justice services
for processing a criminal history information check, the fee imposed by
the federal bureau of investigation for a national criminal history
check, and costs associated with obtaining the fingerprints to all
providers licensed, but not certified under article thirty-six of this
chapter, and all adult care facilities licensed under article seven of
the social services law, including those that are subject to this
article and are unable to access direct reimbursement from state and/or
federal funded health programs.

* NB Effective March 31, 2029

(b) Residential health care facilities licensed pursuant to article
twenty-eight of this chapter and certified home health care agencies and
long-term home health care programs certified or approved pursuant to
article thirty-six of this chapter or a health home, or any
subcontractor of such health home, who contracts with or is approved or
otherwise authorized by the department to provide health home services,
including enrollees who are under twenty-one years of age, under section
three hundred sixty-five-l of the social services law, except for a
health home, or any subcontractor of such health home, who contracts
with or is approved or otherwise authorized by the department to provide
health home services to all those enrolled pursuant to a diagnosis of a
developmental disability as defined in subdivision twenty-two of section
1.03 of the mental hygiene law; or any entity that provides home and
community based services to enrollees who are under twenty-one years of
age under a demonstration program pursuant to section eleven hundred
fifteen of the federal social security act, may, subject to the
availability of federal financial participation, claim as reimbursable
costs under the medical assistance program, costs reflecting the fee
established pursuant to law by the division of criminal justice services
for processing a criminal history information check, the fee imposed by
the federal bureau of investigation for a national criminal history
check, and costs associated with obtaining the fingerprints, provided,
however, that for the purposes of determining rates of payment pursuant
to article twenty-eight of this chapter for residential health care
facilities, such reimbursable fees and costs shall be reflected as
timely as practicable in such rates within the applicable rate period.

10. Notwithstanding subdivision eleven of section eight hundred
forty-five-b of the executive law, a certified home health agency,
licensed home care services agency or long term home health care program
certified, licensed or approved under article thirty-six of this chapter
or a home care services agency exempt from certification or licensure
under article thirty-six of this chapter, a hospice program under
article forty of this chapter, or an adult home, enriched housing
program or residence for adults licensed under article seven of the
social services law, or a health home, or any subcontractor of such
health home, who contracts with or is approved or otherwise authorized
by the department to provide health home services, including enrollees
who are under twenty-one years of age, under section three hundred
sixty-five-l of the social services law, except for a health home, or
any subcontractor of such health home, who contracts with or is approved
or otherwise authorized by the department to provide health home
services to all those enrolled pursuant to a diagnosis of a
developmental disability as defined in subdivision twenty-two of section
1.03 of the mental hygiene law; or any entity that provides home and
community based services to enrollees who are under twenty-one years of
age under a demonstration program pursuant to section eleven hundred
fifteen of the federal social security act may temporarily approve a
prospective employee while the results of the criminal history
information check and the determination are pending, upon the condition
that the provider conducts appropriate direct observation and evaluation
of the temporary employee, while he or she is temporarily employed, and
the care recipient; provided, however, that for a health home, or any
subcontractor of a health home, who contracts with or is approved or
otherwise authorized by the department to provide health home services,
including enrollees who are under twenty-one years of age, under section
three hundred sixty-five-l of the social services law, except for a
health home, or any subcontractor of such health home, who contracts
with or is approved or otherwise authorized by the department to provide
health home services to all those enrolled pursuant to a diagnosis of a
developmental disability as defined in subdivision twenty-two of section
1.03 of the mental hygiene law; or any entity that provides home and
community based services to enrollees who are under twenty-one years of
age under a demonstration program pursuant to section eleven hundred
fifteen of the federal social security act, direct observation and
evaluation of temporary employees shall not be required until July
first, two thousand nineteen. The results of such observations shall be
documented in the temporary employee's personnel file and shall be
maintained. For purposes of providing such appropriate direct
observation and evaluation, the provider shall utilize an individual
employed by such provider with a minimum of one year's experience
working in an agency certified, licensed or approved under article
thirty-six of this chapter or an adult home, enriched housing program or
residence for adults licensed under article seven of the social services
law, a health home, or any subcontractor of such health home, who
contracts with or is approved or otherwise authorized by the department
to provide health home services, including enrollees who are under
twenty-one years of age, under section three hundred sixty-five-l of the
social services law, except for a health home, or any subcontractor of
such health home, who contracts with or is approved or otherwise
authorized by the department to provide health home services to all
those enrolled pursuant to a diagnosis of a developmental disability as
defined in subdivision twenty-two of section 1.03 of the mental hygiene
law; or any entity that provides home and community based services to
enrollees who are under twenty-one years of age under a demonstration
program pursuant to section eleven hundred fifteen of the federal social
security act. If the temporary employee is working under contract with
another provider certified, licensed or approved under article
thirty-six of this chapter, such contract provider's appropriate direct
observation and evaluation of the temporary employee, shall be
considered sufficient for the purposes of complying with this
subdivision.

11. No provider shall seek, directly or indirectly, to obtain from a
prospective employee, temporary employee or employee compensation in any
form for the payment of the fee or any facility costs associated with
obtaining the criminal history information check required by this
article.

12. This article shall be deemed to supersede and apply in lieu of any
local laws or laws of any political subdivision of the state or any
regulations of the department requiring a criminal history record check
to the extent provided for in this article.