Subdivision (b) of section 763.13 of Title 10 NYCRR is amended to read as follows:

(b)(i) that qualifications as specified in section 700.2 of this Title are met; and

(ii) a criminal history record check to the extent required by [section 400.23] Part 402 of this Title.

Subdivision (f) of section 766.11 of Title 10 NYCRR is amended to read as follows:

(f)(i) that prior to patient contact, employment history from previous employers, if applicable, and recommendations from other persons unrelated to the applicant if not previously employed, are verified; and

(ii) a criminal history record check to the extent required by [section 400.23] Part 402 of this Title.

Subparagraph (v), section 505.14(d)(4) of Title 18 NYCRR is amended to read as follows:

(d) Providers of personal care services.

(4) The minimum criteria for the selection of all persons providing personal care services shall include, but are not limited to, the following:

* * *

(v) a criminal history record check to the extent required by 10 NYCRR [400.23] Part 402.

Statutory Authority:

The statutory authority for these regulations is contained in sections 201, 2800, 2803, 2812, 3600, and 3612 of the Public Health Law which authorize the State Hospital Review and Planning Council to adopt and amend rules and regulations, subject to the approval of the commissioner and section 363-a of the Social Services Law.

Basis:

Chapter 769 of the Laws of 2005, as amended by Chapter 331 of the Laws of 2006, created a new Article 28-E entitled Review of Criminal History Information Concerning Prospective Employees of Nursing Homes and Home Care Services Agencies. This new law requires nursing homes licensed under Public Health Law Article 28, and Certified Home Health Care Agencies, Licensed Home Health Care Services Agencies and Long Term Home Health Care Programs licensed or certified under Public Health Law Article 36 to request of the Department of Health (DOH) a criminal history record check for any prospective employee covered under the statute.

The regulations at 10 NYCRR section 400.23, “Criminal history record check for certain applicants for employment in certain health care facilities and programs,” were promulgated prior to enactment of Chapters 769 and 331 under general state authority using a program design authorized by federal statute in the absence of specific state authorizing legislation. Public Health Law section 2899-a (12) provides that any pre-existing regulations of the department requiring criminal history record checks of prospective employees of nursing homes or home health care agencies contemplated by the statute are superseded. Therefore, this legislation explicitly repeals the regulations at 10 NYCRR section 400.23. Regulations authorized by the new statute, 10 NYCRR Part 402, “Criminal History Record Check”, were adopted on an emergency basis on September 1, 2006, November 29, 2006 and February 26, 2007. Removing the text of section 400.23 and amending cross references to it to refer to Part 402 will avoid confusion for those providers subject to regulations implementing the new law. References to section 400.23 also appear in Department of Health and Department of Social Services regulations at 10 NYCRR sections 763.13(b) and 766.11(f), 18 NYCRR section 505.14(d)(4) and are corrected by this rulemaking.

No Job Impact Statement is required pursuant to section 201-a(2)(a) of the State Administrative Procedure Act. It is apparent, from the nature of the proposed amendment, that it will not have a substantial adverse impact on jobs and employment opportunities. The Criminal History Record Check Program implemented under section 400.23 of Title 10 is no longer in effect. Anyone seeking employment subsequent to September 1, 2006 is subject to 10 NYCRR Part 402, filed as an emergency regulation on September 1, 2006 and first published on September 20, 2006 with subsequent filings.