JCP-12-13-00015-A Criminal History Information Checks
6/26/13 N.Y. St. Reg. JCP-12-13-00015-A
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 26
June 26, 2013
RULE MAKING ACTIVITIES
JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS
NOTICE OF ADOPTION
I.D No. JCP-12-13-00015-A
Filing No. 623
Filing Date. Jun. 11, 2013
Effective Date. Jun. 30, 2013
Criminal History Information Checks
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 701 to Title 14 NYCRR.
Statutory authority:
Protection of People with Special Needs Act, L. 2012, ch. 501; Executive Law, section 553(5); Mental Hygiene Law, sections 31.35 and 16.33; and Social Services Law, section 378-a
Subject:
Criminal history information checks.
Purpose:
To provide rules for conducting criminal history information checks.
Text or summary was published
in the March 20, 2013 issue of the Register, I.D. No. JCP-12-13-00015-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Stephen Haimowicz, Justice Center for the Protection of People with Special Nee, 161 Delaware Avenue, Delmar, NY 12054, (518) 549-0244, email: stephen.haimowitz@cqc.ny.gov
Revised 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 link below. In addition, since April 2013 the Justice Center has conducted extensive outreach programs, including presentations and opportunities for questions and answers, and representatives of rural area interests were included among the participants.
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. Since April 2013 the Justice Center has conducted extensive outreach programs, including presentations and opportunities for questions and answers, and representatives of rural area interests were included among the participants.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2016, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The proposed rules under comment concern the Justice Center for the Protection of People with Special Needs, (Justice Center). They include the Justice Center’s administrative adjudications procedure (Part 700); criminal background check requirements and procedures (Part 701); use of social security numbers (Part 702); and the rule governing Justice Center responses to requests for disclosure of facility or provider agency records relating to the abuse or neglect of vulnerable persons (Part 703). These regulations comprise 14 NYCRR Parts 700-703. These rules are authorized under the statutory mandate of the Protection of Persons with Special Needs Act, Chapter 501 Laws of 2012, which creates the Justice Center.
Comments on the proposed rulemaking pertaining to Part 701 criminal history information checks were received from the New York State ARC (NYSARC), an association of not-for-profit organizations representing providers of services to developmentally disabled persons.
The responses to comments requiring non-substantive changes in Part 701 are as follows:
With regard to criminal history checks, NYSARC notes that this proposed regulation is only meant to apply to the same providers that are already required to perform checks under sections 16.33 and 31.35 of the Mental Hygiene Law, which does not include OPWDD, hospitals licensed under Article 28 of the public health law, or professionals licensed under Title 8 of the Education Law. Again, and unfortunately, this new background check requirement continues to apply only to voluntary providers, when a much broader spectrum of providers employ individuals who should be subject to the same background checks and safeguards. Exempting these groups from the requirement to perform background checks on employees creates an unnecessary risk to individuals with intellectual or other developmental disabilities.
Response:
The Justice Center legislation centralizes the criminal background check process for facilities or providers overseen by the Office of Mental Health (OMH), the Office for People With Developmental Disabilities and the Office of Children and Family Services (OCFS)-licensed residential programs within the Justice Center. The Justice Center legislation did not expand the providers required to do background checks to hospitals under Article 28 of the Public Health Law nor to professionals licensed under Title 8 of the Education Law. Accordingly, the proposed regulation is constrained by the statute.
This section appears to leave open the question of whether service agencies, which have submitted background check information to the Justice Center for review and approval, may perform those background checks independently. In addition, with regard to commencement of employment or volunteerism, please clarify whether the requirements relating to criminal history checks and fingerprinting apply to employees or volunteers hired before the effective date of these regulations (June 30, 2013)?
Response:
The proposed regulation provides sufficient guidance as to when a service agency may exercise discretion to hire an individual in § 701.6(a)(2)(iv) and (vi). If NYSARC’s comment is referring the background checks independent of the Justice Center involvement, that is obviously outside the purview of the regulation.
Employees or volunteers hired before the effective date of the Justice Center regulations are already covered under existing OMH and OPWDD criminal background check regulations. The requirements relating to fingerprint-based criminal history checks through the Justice Center will apply to employees or volunteers hired or otherwise commencing service after June 30, 2013.
