JCP-12-13-00015-P Procedures for Criminal History Information Checks

3/20/13 N.Y. St. Reg. JCP-12-13-00015-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 12

March 20, 2013

RULE MAKING ACTIVITIES

JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. JCP-12-13-00015-P

Procedures for Criminal History Information Checks

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of Part 701 to Title 14 NYCRR.

Statutory authority:

Protection of People with Special Needs Act (L. 2012, ch. 501)

Subject:

Procedures for Criminal History Information Checks.

Purpose:

To establish consistent rules for conducting Criminal History Information Checks.

Substance of proposed rule (Full text is posted at the following State website:www.JusticeCenter.ny.gov):

§ 701.1 contains the Background and Intent. This section sets forth the statutory authorization regarding criminal history information checks to be conducted by the Justice Center.

§ 701.2 contains the Applicability of this Part. This section lists the entities subject to the provisions of this Part.

§ 701.3 contains the Legal Base which is the statutory authority under which the criminal history information checks are to be conducted.

§ 701.4 contains the Definitions for the purposes of this Part, including the terms "Authorized person", “Executive Director,” “Justice Center”, “Criminal history information”, “Prospective employee", "Provider of services", “Register of substantiated category one cases of abuse and neglect” and "Subject individual".

§ 701.5 contains Requests for criminal history information checks. It sets forth the procedures to be followed to ensure that the appropriate entities request fingerprint-based criminal history checks for subject individuals who will be working with vulnerable populations in programs operated or supported by New York State human services agencies.

§ 701.6 contains Criminal history review and evaluation. This section lists the procedures to be followed by the Justice Center and providers of services when conducting the review of the criminal history information and evaluating the results of criminal history information checks.

§ 701.7 contains Notification of subsequent criminal charges which sets forth the procedure to be followed when the Justice Center receives notice of a subsequent arrest of a subject individual who has undergone a criminal history information check pursuant to the provisions of this Part.

§ 701.8 contains the Responsibilities of providers of services concerning recordkeeping, notifications and retention and disposal of information.

Text of proposed rule and any required statements and analyses may be obtained from:

Stephan Haimowitz, Justice Center for the Protection of People with Special Needs, Empire State Plaza, Concourse Level, Room 116, Albany, NY 12242, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Section 553 of the Executive Law grants the Justice Center for Protection of People with Special Needs (“Justice Center”) the power and responsibility to review and evaluate the criminal history information for any person for whom a criminal history check is required by law because they are applying to be employed or utilized at facilities or provider agencies defined in subdivision 4 of section 488 of the Social Services Law that are operated, licensed, certified or otherwise authorized by the Office of Mental Health (“OMH”), the Office for People With Developmental Disabilities (“OPWDD”), and the Office of Children and Family Services (“OCFS”).

Section 16.33 of the Mental Hygiene Law provides that certain providers of services for persons with developmental disabilities must request a criminal history information check for specified individuals.

Section 31.35 of the Mental Hygiene Law provides that certain providers of services for persons with mental illness must request a criminal history background check for each prospective operator, employee, or volunteer of such provider of services. In accordance with 14 NYCRR Section 550.5, such Office has delegated responsibility to the Justice Center for review and evaluation of background checks for providers for whom the Justice Center has authority to perform such review and evaluation pursuant to subdivision (5) of section 553 of the Executive Law.

Section 378-a of the Social Service Law provides that authorized agencies which operate a residential program for children and OCFS must request a criminal history information check for each prospective operator, employee, or volunteer of certain residential facility for children who will have regular and substantial unsupervised or unrestricted physical contact with children in such program.

2. Legislative objectives: To implement statutory requirements enacted in the Protection of People with Special Needs Act (the “Act”)(Chapter 501 of the Laws of 2012).

3. Needs and benefits: The Justice Center is proposing to adopt the following regulation because the Act requires that criminal history information checks be conducted on each prospective operator, employee, or volunteer who will have the potential for regular and substantial unsupervised or unrestricted physical contact with individuals receiving services from such provider of services which are operated, licensed, certified, or otherwise authorized by OMH (except for secure treatment units operated pursuant to Article 10 of the Mental Hygiene Law or programs operated in facilities of the Department of Corrections and Community Supervision), OPWDD, and certain residential programs operated by authorized agencies and the OCFS pursuant to subdivision (1) of section 378-a of the Social Services Law, excluding foster family homes and residential programs for victims of domestic violence. The Justice Center was established in response to the recognized need to strengthen and standardize the safety net for vulnerable persons who receive care from New York State’s human services agencies. Prior to the passage of the Act, New York State’s human services agencies were required to conduct criminal history information checks on certain subject individuals pursuant to different laws, but using similar standards. The Act centralizes the criminal history information check requirements for the OMH, OPWDD and OCFS in the Justice Center. The purpose of this Part is to establish standards and procedures for such criminal history information checks.

4. Costs: The cost for a New York State criminal history information check through the Division of Criminal Justices Services is $75.00, the cost for a national criminal history information check through the Federal Bureau of Investigation is $16.50, and if fingerprints are submitted through MorphoTrust, the State-approved vendor, the current fee is set at $10.75. OMH and OPWDD currently own and utilize Live Scan equipment to submit prints, thereby avoiding the use of the State-approved vendor. Accordingly, the direct cost for a New York State and national criminal history information check request by either OMH or OPWDD currently is $91.50. The direct cost for a New York State and national criminal history record check as authorized by subdivision (1) of section 378-a of the Social Services Law of $102.25, which includes the State-approved vendor fee, will be absorbed either by the authorized agency which operates a residential program for children or the individual seeking employment.

5. Local government mandates: The required criminal history information check is a statutory requirement that will not result in any additional imposition of duties or responsibilities upon county, city, town, village, school or fire districts.

6. Paperwork: In order to assist providers in fulfilling their responsibilities in implementing statutory requirements enacted in the Act, the Justice Center has developed the Justice Center Criminal History Information Tracking System (Justice Center CHITS), which is a web-based system designed to enter applicant information and track the status of the fingerprinting process. Because only a minimum amount of data must be input into the system, and the system is designed to generate all of the required forms mandated in the statute, it is intended to reduce any administrative burden related to the implementation of the Act. Aside from record retention requirements necessary for monitoring compliance, the regulation will not require providers of service to furnish additional information, reports, records or data.

7. Duplication: This proposed rule does not duplicate, overlap, or conflict with any State or federal statute or rule. It should be noted that the Office of Alcoholism and Substance Abuse Services has a similar statutory requirement and is promulgating its own regulations on the subject.

8. Alternatives: The Act requires the adoption of this proposed regulation. There were no significant alternatives to be considered.

9. Federal standards: The regulatory amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: These regulations will become effective on June 30, 2013.

Regulatory Flexibility Analysis

1. Effect of Rule: Agencies that operate mental health programs that contract with, or are approved or otherwise authorized by, the New York State Office of Mental Health (“OMH”) and the Office for People With Developmental Disabilities (“OPWDD”) are subject to this regulation. The regulation shall also apply to authorized agencies which operate certain residential programs for children and the Office of Children and Family Services (“OCFS”), excluding foster family homes and residential programs for victims of domestic violence. Some of the aforementioned programs would be considered “small businesses.” The cost for criminal history checks for the mental health programs currently required to request such checks, is borne by OMH and OPWDD and will continue to be under the Protection of People with Special Needs Act (the “Act”) (Chapter 501 of the Laws of 2012). Prior to the enactment of the Act, criminal history information checks, by authorized agencies operating residential programs for children, for staff engaged directly in the care and supervision of children, were voluntary. These criminal history information checks required under the Act are now required, so this may impose an economic impact on these authorized agencies. The proposed rule will not impose any adverse economic impact on small businesses, nor will it impose new reporting, record keeping or other compliance requirements on small businesses or local governments.

2. Compliance Requirements: Providers of services that are subject to these requirements must, by statute, request criminal history information concerning certain subject individuals employed or utilized by the provider of service who will have the potential for regular and substantial unsupervised or unrestricted contact with individuals who receive services. One or more persons in their employ must be designated to request a criminal history information check through the Justice Center for the Protection of People with Special Needs (“Justice Center”). Payment for the fingerprinting fee, which is paid to the Division of Criminal Justice, is currently the responsibility of OMH and the OPWDD. In the case of an authorized agency which operates a residential program for children and OCFS, either the provider or the applicant for employment of volunteer service is required to pay the fingerprinting fee. Providers of service must inform the subject individuals of their right to request information and of the procedures available to them to review and correct criminal history information maintained by the State and by the Federal Bureau of Investigation. Although subject individuals cannot be hired before a determination is received from the Justice Center about whether or not the application must be denied, providers can give temporary approval to prospective employees and permit them to work so long as they do not have unsupervised contact with individuals receiving services.

3. Professional Services: No additional professional services will be required by small businesses or local governments to comply with this rule.

4. Compliance Costs: The cost for a New York State criminal history information check through the Division of Criminal Justices Services is $75.00, the cost for a national criminal history information check through the Federal Bureau of Investigation is $16.50, and if fingerprints are submitted through MorphoTrust, the State-approved vendor, the current fee is set at $10.75. OMH and OPWDD currently own and utilize Live Scan equipment to submit prints, thereby avoiding the use of the State-approved vendor. Accordingly, the direct cost for a New York State and national criminal history information check request by either OMH or OPWDD currently is $91.50. The direct cost for a New York State and national criminal history record check as authorized by subdivision (1) of section 378-a of the Social Services Law of $102.25, which includes the State-approved vendor fee, will be absorbed either by the authorized agency which operates a residential program for children or the individual seeking employment.

5. Economic and Technological Feasibility: In order to assist providers in fulfilling their responsibilities in implementing statutory requirements enacted in the Act, the Justice Center has developed the Justice Center Criminal History Information Tracking System (Justice Center CHITS), which is a web-based system designed to enter applicant information and track the status of the fingerprinting process. Because only a minimum amount of data must be input into the system, and the system is designed to generate all of the required forms mandated in the statute, it is intended to reduce any administrative burden related to the implementation of the Act. Aside from record retention requirements necessary for monitoring compliance, the regulation will not require providers of service to furnish additional information, reports, records or data. This technology will be accessible through existing computer networks. There may be a very small number of providers that do not have any computer from which they can access this technology. The Justice Center will work with those providers either to identify a way to obtain such access or identify another alternative.

6. Minimizing Adverse Impact: Because most of the requirements in this proposal are statutorily required, compliance with them is mandatory. However, the Justice Center has developed its compliance plan with the goal of minimizing adverse impact to the greatest extent possible. The Justice Center CHITS is one example of a strategy intended to reduce the administrative burden related to implementation of the Act. Furthermore, the Justice Center has endeavored to maximize its capability to have fingerprints taken electronically, through systems using technologies that capture fingerprints electronically and would transmit the fingerprints directly to the Division of Criminal Justice Services to obtain criminal history information. It has many advantages to the traditional “ink and roll” process for obtaining fingerprints.

While the Justice Center’s implementation plans will accommodate the ability to accept some fingerprints through the “ink and roll” method, our strategy is designed to utilize the Live Scan and MorphoTrust technology to the greatest extent possible as of June 30, 2013.

7. Small Business and Local Government Participation: We are seeking comments during the public comment period on rural area participation. However, small businesses an local governments participated in formulating the legislation under which this rule is being promulgated by virtue of their input into the “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities against Abuse and Neglect” report prepared by Clarence J. Sundram, the Governor’s Special Advisor on Vulnerable Persons, which addressed the problem of abuse and neglect of vulnerable people in programs operated or supported by agencies of the state of New York and resulted in the enactment of the Act. See http://www.governor.ny.gov/assets/documents/justice4specialneeds.pdf

Rural Area Flexibility Analysis

1. Effect of Rule: Agencies that operate mental health programs that contract with, or are approved or otherwise authorized by, the New York State Office of Mental Health (“OMH”) and the Office for People With Developmental Disabilities (“OPWDD”) are subject to this regulation. The regulation shall also apply to authorized agencies that operate residential programs for children and the Office of Children and Family Services (“OCFS”), excluding foster family homes and residential programs for victims of domestic violence. However, since these state agencies and agencies authorized pursuant to subdivision (1) of section 378-a of the Social Services Law were already authorized to conduct such checks, the proposed rule will not impose any adverse economic impact on rural areas, nor will it impose new reporting, record keeping or other compliance requirements on local governments.

2. Compliance Requirements: Providers of service that are subject to these requirements, including those in rural areas, must, by statute, request criminal history information concerning prospective subject individuals who will have the potential for regular and substantial unsupervised or unrestricted contact with individuals receiving services. One or more persons in their employ must be designated to request a criminal history information check. The criminal history record information must be obtained through the Justice Center for the Protection of People with Special Needs (“Justice Center”). Payment for the fingerprinting fee, which is paid to the Division of Criminal Justice Services (“DCJS”), is the responsibility of the applicable state oversight agency that licenses, certifies or otherwise approves the provider of service. In the case of a program or facility licensed or certified by the OCFS, either the provider or the applicant for employment of volunteer service is required to pay the fingerprinting fee. Providers of service must inform their prospective subject individuals of their right to request information and of the procedures available to them to review and correct criminal history information maintained by the State and the Federal Bureau of Investigation (“FBI”). Although prospective subject individuals cannot be hired before a determination is received from the Justice Center about whether or not the application must be denied, providers can give temporary approval to prospective subject individuals and permit them to work so long as they do not have unsupervised contact with clients.

3. Professional Services: No additional professional services will be required by small businesses or local governments to comply with this rule.

4. Compliance Costs: The cost for a New York State criminal history information check through the Division of Criminal Justices Services is $75.00, the cost for a national criminal history information check through the Federal Bureau of Investigation is $16.50, and if fingerprints are submitted through MorphoTrust, the State-approved vendor, the current fee is set at $10.75. OMH and OPWDD currently own and utilize Live Scan equipment to submit prints, thereby avoiding the use of the State-approved vendor. Accordingly, the direct cost for a New York State and national criminal history information check request by either OMH or OPWDD currently is $91.50. The direct cost for a New York State and national criminal history record check as authorized by subdivision (1) of section 378-a of the Social Services Law of $102.25, which includes the State-approved vendor fee, will be absorbed either by the authorized agency which operates a residential program for children or the individual seeking employment.

5. Economic and Technological Feasibility: In order to assist providers in fulfilling their responsibilities in implementing statutory requirements enacted in The Protection of People with Special Needs Act (the “Act”)(Chapter 501 of the Laws of 2012), the Justice Center has developed the Justice Center Criminal History Information Tracking System (Justice Center CHITS), which is a web-based system designed to enter applicant information and track the status of the fingerprinting process. Because only a minimum amount of data must be input into the system, and the system is designed to generate all of the required forms mandated in the statute, it is intended to reduce any administrative burden related to the implementation of the Act. Aside from record retention requirements necessary for monitoring compliance, the regulation will not require providers of services to furnish additional information, reports, records, or data. This technology will be accessible through existing computer networks. There may be a very small number of providers that do not have any computer from which they can access this technology. The Justice Center will work with those providers either to identify a way to obtain such access or identify another alternative.

6. Minimizing Adverse Impact: Because most of the requirements in this proposal are statutorily required, compliance with them is mandatory. However, the Justice Center has developed its compliance plan with the goal of minimizing adverse impact to the greatest extent possible. The Justice Center CHITS is one example of a strategy intended to reduce the administrative burden related to implementation of the Act. Furthermore, the Justice Center has endeavored to maximize its capability to have fingerprints taken electronically, through systems called either Live Scan or MorphoTrust. These systems utilize technologies that capture fingerprints electronically and would transmit the fingerprints directly to the Division of Criminal Justice Services to obtain criminal history information. It has many advantages to the traditional “ink and roll” process.

While the Justice Center’s implementation plans will accommodate the ability to accept some fingerprints through the “ink and roll” method, particularly in rural areas where access to State-operated Live Scan or MorphoTrust technology may be more difficult, our strategy is designed to utilize the Live Scan and Morpho-Trust technology to the greatest extent possible as of June 30, 2013.

7. Rural Area Participation: We are seeking comments during the public comment period on rural area participation. However, rural areas participated in formulating the legislation under which this rule is being promulgated by virtue of their input into the “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities against Abuse and Neglect” report prepared by Clarence J. Sundram, the Governor’s Special Advisor on Vulnerable Persons, which addressed the problem of abuse and neglect of vulnerable people in programs operated or supported by agencies of the state of New York and resulted in the enactment of the Act. See http://www.governor.ny.gov/assets/documents/justice4specialneeds.pdf

Job Impact Statement

A Job Impact Statement is not necessary for this filing. Proposed 14 NYCRR Part 701 should not have any adverse impact on the existing employees and volunteers of providers of services as it applies only to future prospective employees and volunteers. It is anticipated that the number of future prospective employees/volunteers of providers of services who have regular and substantial unsupervised or unrestricted physical contact with individuals receiving services will be reduced to the degree that the criminal history information check reveals criminal history information barring employment.