(i) facilities holding an operating certificate issued by OPWDD (e.g., residences, family care homes, day treatment, day training, sheltered workshops), home and community based waiver services, State plan services enumerated in section 619.2(d)(10) of this Title, family support services, individual support services; and

(ii) providers of services which contract with and/or are approved by OPWDD;

(i) OPWDD;

(ii) a hospital as defined in article 28 of the Public Health Law; and

(iii) a licensed professional under title 8 of the Education Law who does not have employees or volunteers (see section 633.99 of this Part) who have or will have regular and substantial unsupervised or unrestricted physical contact with people receiving services.

(i) directly employed by the agency or provider of services or registered provider; or

(ii) used by the agency or provider of services or registered provider to provide services substantially similar to those that are or could be provided by someone who is directly employed by the agency or provider of services. Such parties shall be deemed to be employees of the agency or provider of services and shall include, but not be limited to, those who are employed by other entities on behalf of or for the benefit of the agency or provider of services.

(i) determining whether particular employee or volunteer applicants are subject to a criminal history record check;

(ii) protecting the safety of persons receiving services when in the physical proximity of temporarily approved provisional employees and volunteers, which includes:

(iii) providing notifications to the Justice Center when a party ceases to be a subject party; and

(iv) evaluating and, if warranted, taking appropriate steps upon receipt of a notice about a conviction or pending criminal charge against a current employee, volunteer, family care provider or party living in the home of a family care provider subsequent to the initial criminal history record check.

(i) prospective employees and operators who will have regular and substantial unsupervised or unrestricted physical contact with people receiving services, according to the criteria established by policies and procedures. Unless the agency or provider of services has documented the grounds for determining that the party does not have such contact, the following employees and operators are presumed to have regular and substantial unsupervised or unrestricted physical contact:

(ii) family care providers and all parties 18 years of age or older who are to reside in the family care home (except for individuals receiving family care services) as follows:

(iii) prospective volunteers who will have regular and substantial unsupervised or unrestricted physical contact with persons receiving services, as determined by the agency or provider of services according to criteria established by policies and procedures;

(iv) employees, volunteers and operators who currently have a position or volunteer opportunity which does not involve regular and substantial unsupervised or unrestricted physical contact with persons receiving services, who will be assuming a position or volunteer opportunity which does involve such contact;

(v) for an agency or other potential provider of services which applies to become certified, authorized, approved or funded through contract by OPWDD; all its current and potential operators, employees and volunteers who will have regular and substantial unsupervised or unrestricted physical contact with persons receiving services in the new program; and

(vi) for an agency or other provider of services which has a change in ownership interest, any natural person that will become an operator due to such change, if he or she will have regular and substantial unsupervised or unrestricted physical contact with persons receiving services.

(i) the contractor is itself an agency or provider or services which provides services that are certified, authorized (HCBS waiver services), or funded through contract by OPWDD as family support services, individual support services, or Medicaid service coordination and the contractor is complying with the requirements of this section with regard to the employees utilized under contract; or

(ii) the contractor is a registered provider that has been approved by OPWDD pursuant to the provisions of subdivision (n) of this section.

(i) Policies and procedures shall address the need for all temporarily approved provisional employees and volunteers to be monitored. Such policies and procedures shall:

(ii) In order to be approved, temporarily approved provisional employees and volunteers shall provide an attestation that they understand basic elements of what is considered abuse according to the definition in Part 624 of this Title and that they know whom to contact, and in what manner, if they have questions about incidents/abuse; and that they affirm that they will not engage in abusive practices or knowingly endanger the physical or emotional well-being of people receiving services.

(iii) If the temporarily approved provisional employee or volunteer is in the physical proximity of people receiving services, an employee meeting the standards specified in subparagraph (i) of this paragraph shall be in reasonable physical proximity of the temporarily approved provisional employee or volunteer at all times.

(iv) The temporarily approved provisional employee or volunteer shall not be assigned personal care activities which require privacy for people receiving services (e.g., bathing, dressing and toileting), unless an employee meeting the standards of subparagraph (i) of this paragraph is present in the same room with the temporarily approved provisional employee or volunteer at all times while personal care activities are occurring.

(v) A temporarily approved provisional employee or volunteer shall not be assigned to work at a residential facility during the typical nighttime shift (e.g., 11 p.m. to 7 a.m.).

(vi) Temporary approval shall be denied if the agency or provider of services possesses written documentation, such as a statement provided by the subject party as part of the application process, that:

(vii) At any time after the agency or provider of services receives a determination that the Justice Center is not issuing a denial or directing the agency or provider of services to issue a denial, the restrictions imposed during the period of temporary approval may be lifted. The agency or provider of services does not need to notify the OPWDD or the Justice Center regarding the end of temporary approval in this situation.

(viii) When an agency or provider of services receives Justice Center notification of any result of the criminal history record check, except as specified in subparagraph (vii) of this paragraph, any temporary approval of the subject party shall be revoked immediately, or as soon as reasonably possible. However, revocation of the temporary approval shall not be delayed if such delay may compromise the safety of people receiving services.

(ix) Registered providers are not permitted to temporarily approve a subject party on a provisional basis.

(i) the family care provider shall be notified regarding the issuance of the denial;

(ii) the sponsoring agency shall conduct a safety assessment of the service environment, and shall take all steps necessary to protect the health and safety of people receiving services. The safety assessment and steps shall be documented; and

(iii) people receiving services shall be promptly relocated unless the family care provider and sponsoring agency document in writing that the relevant subject party is no longer residing in the family care home.

(i) The authorized party and any other party to whom such criminal history record information or summary of the criminal history record information is disclosed shall be subject to the confidentiality requirements and other provisions of this section and section 845-b of the Executive Law relating to access to the criminal history record information and the summary.

(ii) Any party who willfully permits the release of any confidential criminal history record information or the summary of the criminal history record information obtained from a criminal history record check pursuant to this section to parties not permitted by section 845-b of the Executive Law to receive such information shall be guilty of a misdemeanor.

(i) a current roster of employees and volunteers who are subject parties. The roster shall indicate the staffing assignment (employees only), the date that the criminal history record check was requested, and the date that the subject party was hired or assumed duties which involved regular and substantial unsupervised or unrestricted physical contact with people receiving services;

(ii) a current roster of family care providers and parties age 18 years and over who reside in each family care home, and whether the provider or party was the subject of a criminal history record check;

(iii) a list of parties whom have had a subject party change in status (e.g., separation from service) pursuant to subdivision (l) of this section within the past 12 months. The list shall indicate the date the criminal history record check was requested and the date OPWDD or the Justice Center was notified that the party was no longer a subject party;

(iv) for each subject party concerning whom a request for a criminal history record check was submitted, a copy of his or her signed informed consent form, a copy of the form submitted by the authorized party to request the criminal history record check, the notification of a change in subject party status (if applicable), and the results of the criminal history record check and determination of OPWDD or the Justice Center; unless the agency, sponsoring agency or provider of services has disposed of such records pursuant to paragraph (3) or (4) of this subdivision;

(v) a record identifying whether such subject parties were:

(vi) for employees, the position held by the employee; and

(vii) any other information necessary to determine compliance with this section as may be specified by OPWDD or the Justice Center.

(i) conduct a safety assessment of the service environment and take all appropriate steps to protect the health and safety of the persons receiving services. The safety assessment and steps shall be documented; and

(ii) monitor the outcome of any pending charge, if the subject party continues to have regular and substantial unsupervised or unrestricted physical contact with people receiving services.

(i) the provider contracts with (or will contract with) OPWDD (or an entity on behalf of OPWDD) or an agency which provides services certified by OPWDD or HCBS waiver services (or with an entity on behalf of the agency);

(ii) either:

(iii) the provider of services is not a professional corporation or other entity whose function is the provision of services as opposed to the provision of staff; and

(iv) the provider itself does not provide any of the following services:

(i) The agency or provider of services shall develop and implement written policies and procedures to monitor whether the registered provider is in compliance with the requirements of this section, section 633.24 and terms established by OPWDD for the approval of a registered provider. At a minimum, the policies and procedures shall require that the agency or provider of services verify that the contractor has attained registered provider status initially and, on at least a quarterly basis, that the contractor maintains registered provider status. The requirement for policies and procedures applies regardless of whether the registered provider also contracts with OPWDD, or an entity on behalf of OPWDD. If an entity contracts with the registered provider on behalf of an agency or provider of services, the entity and agency (or provider of services) shall both develop and implement such written policies and procedures.

(ii) If the agency or provider of services becomes aware that the registered provider is out of compliance with the requirements of this section, section 633.24 or any term established by OPWDD for the approval of a registered provider, the agency or provider of services shall notify OPWDD by the close of the fifth working day after it becomes aware of the non-compliance.

(i) a professional corporation or other entity whose function is the provision of services as opposed to the provision of staff; or

(ii) a contractor who is a sole party; or

(iii) a contractor who supplies transportation services or staff that does not have employees who have or will have regular and substantial unsupervised or unrestricted physical contact with people receiving services;