(a) Chapter 643 of the Laws of 2003, as amended by Chapter 575 of the Laws of 2004 and amended further by chapter 673 of the laws of 2006, imposed the requirement of criminal history record checks on each prospective operator, employee, or volunteer of certain mental health treatment providers who will have regular and substantial unsupervised or unrestricted physical contact with the clients of such providers.

2. Subdivision (c) of Section 550.4 of such Title is amended to read as follows:

(c) “Criminal history information,” “criminal background,” or “criminal history record” means a record of pending criminal charges, criminal convictions which are not vacated or reversed, and certificates filed pursuant to subdivision (2) of Section 705 of the Correction Law, and which the New York State Division of Criminal Justice Services is authorized to maintain pursuant to subdivision (6) of Section 837 of the Executive Law. For purposes of this Part, on or after March 12, 2007, “criminal history information,” “criminal background,” or “criminal history record” shall also include information from the federal bureau of investigation as a result of a national criminal history record check.

3. Subdivisions (a) and (b) of Section 550.5 of such Title are amended to read as follows:

(a) The Office shall perform a criminal history record check regarding any prospective operator, employee, or volunteer of a provider of services which is required to comply with Chapter 575 of the Laws of 2004, as set forth in subdivision (a) of Section 550.2 of this Part. For purposes of this Part, the inclusion of a national criminal history background check shall apply to all prospective operators, employees, or volunteers whose applications are submitted to the office for a criminal history background check on or after March 12, 2007.

(b) Any provider of services subject to compliance with this Part which is issued an operating certificate on or after April 1, 2005 shall require a criminal history record check of natural persons with an ownership interest in such providers, provided, however, that for purposes of this Part, the inclusion of a national criminal history background check of natural persons with such an ownership interest shall apply to all providers of service issued an operating certificate on or after March 12, 2007. Any change in the ownership interest of any provider on or after April 1, 2005, for which a new natural person becomes or joins as an operator shall require a criminal history record check of such new natural person or persons, which shall be performed in concert with the prior approval process established in Section 551.6 of Part 551 of this Title, or the application process established in Section 87.3 of Part 87 of this Title, as applicable. For purposes of this Part, the inclusion of a national criminal history background check of new or additional natural person operators shall apply to all such changes in ownership proposed on or after March 12, 2007.

4. Subparagraph (iii) of paragraph (4) of subdivision (e) of Section 550.5 of such Title is amended to read as follows:

(ii) the provider of services has informed the prospective employee or volunteer that he or she has the right to obtain, review, and seek correction of his or her criminal history record in accordance with regulations and procedures of the Division and the Federal Bureau of Investigation;

(iii) the provider of services has obtained the signed, informed consent of the prospective employee or volunteer on a form supplied by the Office which indicates that such person:

(A) has been informed of the right and procedures necessary to obtain, review, and seek correction of his or her criminal history information;

(B) has been informed of the reason for the request for his or her criminal history information;

(C) has been informed that the criminal history information sought will include both a New York State and, on or after March 12, 2007, a national criminal history information check;

(D) has consented to such request for a report of his or her criminal history information, with respect to New York State and, on or after March 12, 2007, national criminal history information;

[(D)] (E) has supplied a current mailing or home address on the form;

[(E)] (F) has or has not, to the best of his or her knowledge, ever been convicted of a crime in New York State or any other jurisdiction; and

(G) has or has not, to the best of his or her knowledge, any felony or misdemeanor charges currently pending against him or her that remain unresolved.

5. Subparagraph (ii) of paragraph (2) of subdivision (f) of Section 550.5 of such Title is amended to read as follows:

(ii) prevent any person with a conviction or pending charge of one or more of the following from being temporarily approved, provided that the provider of services has been previously informed by the prospective employee or volunteer in the application process, or by the Office prior to issuance of its determination, of such conviction or pending charge:

(A) a felony sex offense;

(B) a felony within the past ten years involving violence; [or]

(C) endangering the welfare of an incompetent or physically disabled person pursuant to Section 260.25 of the Penal Law; [and] or

(D) on or after March 12, 2007, any comparable offense in any other jurisdiction; and

6. Paragraphs (1) and (2) of subdivision (a) of Section 550.6 of such Title is amended to read as follows:

(1) Applicant to be a natural person operator of a new provider of services after April 1, 2005; or a new natural person operator of an existing provider after April 1, 2005.

(i) Where an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, has no criminal history, the Office shall promptly resume its review of the application in accordance with the provisions of Part 551 or Part 87 of this Title, as applicable.

(ii) Where the criminal history record of an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, 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, for an applicant to be an operator of a new provider of services on or after March 12, 2007, or an applicant to be a new operator of an existing provider on or after March 12, 2007, any comparable offense in any other jurisdiction, the Office shall deny the application unless the Office determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of clients in the facility or program.

(iii) Where the criminal history record of an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, reveals a conviction for any crime other than one set forth in subparagraph (ii) of paragraph (1) of this subdivision, the Office may, consistent with article 23-A of the Correction Law, deny the application.

(iv) Where the criminal history record of an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, reveals a charge for any felony or, for applications made on or after March 12, 2007, any comparable offense in any other jurisdiction, the Office shall hold the application in abeyance until the charge is finally resolved.

(v) Where the criminal history record of an applicant to be an operator of a new provider of services, or an applicant to be a new operator of an existing provider of services, reveals a charge for any misdemeanor or, for applications made on or after March 12, 2007, any comparable offense in any other jurisdiction, the Office may hold the application in abeyance until the charge is finally resolved.

(2) Applicant to be an employee or volunteer.

(i) Where a prospective employee or volunteer of a provider of services has no criminal history, the Office shall promptly advise the provider of services that it shall not issue a denial for employment or volunteer service and is not directing the provider of services to issue a denial.

(ii) Where the criminal history record of a prospective employee or volunteer of a provider of services 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, for applications made on or after March 12, 2007, any comparable offense in any other jurisdiction, the Office shall direct the provider to deny employment of or authorization to provide services by such person, unless the Office determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of clients in the facility or program.

(A) The Office shall provide a summary of the criminal history record along with such notification, provided, however, that 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 transmitted to the provider.

(B) In cases where the Office does not issue a denial, or does not direct the provider of services to issue a denial, the provider of services may act on the application in its own discretion, consistent with all applicable laws and regulations.

(iii) Where the criminal history record of a prospective employee or volunteer of a provider of services reveals a conviction for any crime other than one set forth in subparagraph (ii) of paragraph (1) of this subdivision, the Office may, consistent with article 23-A of the Correction Law, direct the provider to deny employment/authorization to provide services.

(A) The Office shall provide a summary of the criminal history record along with such notification, provided, however, that 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 transmitted to the provider.

(B) In cases where the Office does not issue a denial, or does not direct the provider of services to issue a denial, the provider of services may act on the application on its own discretion, consistent with all applicable laws and regulations.

(iv) Where the criminal history record of a prospective employee or volunteer of a provider of services reveals a charge for any felony or, for applications made on or after March 12, 2007, any comparable offense in any other jurisdiction, the Office shall hold the application in abeyance until the charge is finally resolved.

(v) Where the criminal history record of a prospective employee or volunteer of operator of a provider of services reveals a charge for any misdemeanor or, for applications made on or after March 12, 2007, any comparable offense in any other jurisdiction, the Office may hold the application in abeyance until the charge is finally resolved.

6. Paragraph (1) of subdivision (d) of Section 550.6 of such Title is amended to read as follows:

(d) Documentation and confidentiality requirements.

(1) Only the authorized person or his or her designee and the relevant subject party shall have access to criminal history information received by a provider of services. However, criminal history information may be disclosed by the authorized person to other parties who are directly participating in any decision with regard to such subject party, to which this information is relevant, provided, however, that 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 transmitted to the provider.

Chapter 643 of the Laws of 2003, as amended by Chapter 575 of the Laws of 2004, imposed the requirement of criminal history record checks on each prospective operator, employee, or volunteer of certain mental health treatment providers who will have regular and substantial unsupervised or unrestricted physical contact with the clients of such providers. The OMH is required to process these requests, to perform a Correction Law Article 23-A analysis with respect to the results. After undertaking such review, the OMH will summarily advise providers whether or not the applicant can be approved for consideration. This statute also authorized OMH to promulgate regulations that establish the standards and procedures for such criminal history record checks, which are embodied in 14 NYCRR Part 550.

This law was amended by Chapter 673 of the Laws of 2006, which extended the authority of OMH and OMRDD in Executive Law Section 845-b to request criminal history background information on a national level from the FBI, effective March 12, 2007. The proposed rule will amend 14 NYCRR Part 550 to incorporate this requirement into its existing criminal history background check process, as required by, and consistent with, Chapter 673 of the Laws of 2006. As such, it is noncontroversial since it implements nondiscretionary State statutory provisions.

The proposed amendments to 14 NYCRR Part 550 should not have any adverse impact on the existing employees and volunteers of providers of mental health services as it applies only to future prospective employees and volunteers, i.e., those whose applications are submitted on or after March 12, 2007. Nonetheless, as a result of the implementation of this nondiscretionary statutory requirement to perform a national criminal history background check, it is anticipated that the number of all future prospective employees/volunteers of mental health providers of services who have regular and substantial unsupervised or unrestricted physical contact with clients will be reduced to the degree that the national criminal history record check reveals a criminal record barring employment.