Relates to the review of criminal history information of certain persons rendering community based services to individuals with mental illness or developmental disabilities

Summary of provisions

Section 1 of the bill would amend MHL § 31.35(a) to clarify that criminal history background checks performed by the Office of Mental Health (OMH) and the Office of People with Developmental Disabilities (OPWDD) must include criminal history background checks for employees of providers who receive funds from or are licensed or certified to provide services to persons with mental illness or developmental disabilities. In addition, § 1 would enable OMH to perform a criminal history background check for any person over the age of 18 living in a Family Care Home that was approved by OMH on or after April 1, 2009.

Section 2 of the bill would amend Executive Law § 845-b(1) (c) to clarify that the term "criminal history information" includes information obtained from the Federal Bureau of Investigation (FBI) as a result of a national criminal history check for purposes of OMH and OPWDD.

Section 2 of the bill would also amend Executive Law §§ 845-b(3)(a), (b) and (c) to provide for the use of attestations by authorized persons and to clarify that the attestation requirement may be achieved through a single submission that is applicable to all requests made by the authorized person. It further clarifies that provisions applicable to FBI checks, which currently appear to apply only to the Department of Health (DOH), also include OMH and OPWDD, in accordance with Chapter 673 of the Laws of 2006, and makes additional technical amendments in these paragraphs.

Section 2 of the bill would also amend Executive Law § 845-b(4) to expand provisions applicable to the processing of FBI checks, which currently apply only to DOH, to include OMH and OPWDD.

Section 2 of the bill would also amend Executive Law § 845-b(5) 10 establish provisions that enable the agencies to take appropriate action, depending on the nature of the criminal history at issue, while ensuring sufficient due process protections are afforded to the provider. This section would include amendments that would enable OMH and OPWDD to take action in cases in which a natural person operator of a family care home or family based treatment program, or a person over the age of 18 residing in such home or program, have problematic criminal histories. These amendments would provide OMH and OPWDD with flexibility in cases in which an applicant has an outstanding charge that does not presumptively disqualify him or her from employment, but the disposition of the charge cannot be readily ascertained.

Section 2 of the bill would also make a technical amendment to Executive Law § 845-b(d) (5) to ensure that OMH and OPWDD have the ability to directly contact any subject individual of a criminal history background check and request' additional information in the event that the individual's criminal history information is incomplete or requires clarification.

Section 2 would also renumber and make technical, clarifying changes to the criminal history background check processes to Executive Law 845-b(5) (e) and, (f), and would add a new paragraph (h) to make a technical process clarification with respect to provisions requiring OMH and OPWDD to send a written summary notifying a provider of a subject individual's criminal history information.

This section would also repeal the opening sentence of Executive Law 845-b(6) and amend Executive Law § 845-b(11) (currently subdivision 10). The new subdivision 11 would be amended to remove the requirement that the definition of "unsupervised physical contact with clients," to be defined in regulations promulgated by the authorizing agency, must take into consideration the differences in the staffing patterns of various service models and the supervision required to ensure the safety of clients. This provision is no longer necessary, as implementing regulations for the agencies are in effect.

Section 3 of the bill would take effect on the 180th day after it shall become a law.

Existing law

Chapter 643 of the Laws of 2003, as amended by Chapter 575 of the Laws of 2004, requires criminal history record checks for 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. OMH and OPWDD are required to process these requests and to perform an analysis pursuant to Correction Law Article 23-A with respect to the results. After undertaking such review, OMH and OPWDD are required to summarily

advise providers whether or not the applicant can be approved for consideration. OMH and OPWDD are required to promulgate regulations that establish the standards and procedures for such criminal history record checks.

Chapter 673 of the Laws of 2006 amended these provisions and extended the authority of OMH and OPWDD pursuant to Executive Law § 845-b to request criminal history background information on a national level from the FBI.

Chapter 331 of the Laws of 2006 amended Executive Law § 845-b to authorize DOH to request both state and national criminal history information.

Legislative history

2009-10: S.3484 - Passed in Senate.

This proposal represents part of a bill (S.7674/A.11035) which passed the Senate and was referred to the Assembly Mental Health Committee. In the 2009 Legislative Session, the proposal has been modified to remove provisions that impacted State employees.

Statement in support

In April of 2005, OMH and OPWDD began processing requests for criminal histories on behalf of local providers of mental hygiene, reviewing them, and responding to providers with respect to the results of its review. Over the course of implementation, several process questions and concerns arose, the answers to which were not immediately clear from the language of the statute. The proposed amendments are intended, in large part, to clarify the answers to these process questions to ensure effective implementation of the law's requirements.

Specifically, Chapter 575 requires that, for each criminal history check requested by an authorized person, a notarized attestation must be made indicating a number of elements designed to ensure that the request is justified under the law. During the implementation of the law, it became apparent that to require a notarized statement for each request submitted was unduly onerous to providers. This bill permits the use of a single attestation or affirmation from each authorized provider signed under penalty of perjury, in lieu of a notarized statement that indicates every request that it submits will meet these applicable criteria.

In addition, the bill authorizes OMH to review criminal histories of every person over the age of 18 residing in a family care home or a family based treatment program. As currently enacted, OMH is only able to review the histories of new operators of family care homes, unlike OPWDD, which is authorized to review the operators of such homes, as well as every person over the age of 18 living in the home. As residents of family care homes and family based treatment programs approved by OMH should have the same safety assurances as residents

of family care homes approved by OPWDD, this proposal would provide consistent authority for both OMH and OPWDD.

Other changes are made in the bill to address the actions OMH and OPWDD can take in the event that a natural person who operates a family care home or, family-based treatment provider, or a person over the age of 18 living in such home or program, has a problematic criminal history. Currently, it is not clear what options are available to OPWDD in cases where a problematic criminal history is revealed with respect to a person over the age of 18 who resides in the home. Furthermore, as stated above, the law does not specifically indicate that OMH has authority to obtain and review the criminal histories of a person over the age of 18 who resides in a family care home or family based treatment program. As a result, in most cases, OMH will not even know if such a person has a problematic criminal background and may be unable to take action in the event it is learned that such a problematic history exists. These amendments would address these issues, by establishing provisions that enable the agencies to take appropriate action, depending on the nature of the criminal history at issue, while ensuring that sufficient due process protections are afforded to the provider.

The bill would also create additional flexibility for the agencies wit.h respect to situations in which a criminal history contains charges for the commission of non-presumptive crimes that were placed on the record ten or more years ago, but the agency is not reasonably able to determine the disposition of such charges. Under current law, all applications that contain charges for felonies must be held in abeyance, and those with misdemeanors may be held in abeyance, until such charges are resolved. Experimentally, the agencies. have discovered that it is sometimes very difficult, if not impossible, to obtain information from courts or other sources when trying to resolve old charges. This creates particular problems for OPWDD, because the only alternatives now available to a provider when an application is placed in abeyance are to dismiss the individual or ensure constant supervision of him or her. The proposal would allow OMH or OPWDD to permit providers to make their own decisions with respect to applicants who have charges for non-presumptive crimes on their record, that are more than ten years old and the disposition of which is not readily available, if a safety assessment is performed and the provider determines that the individual does not pose an unreasonable risk to its clients.

The bill also removes the requirement established in Chapter 575 that the definition of "unsupervised contact," for purposes of temporary approval, must take into consideration the differences in staffing patterns of various service models and the supervision required to ensure the safety of clients. This language was originally included based on a fear that certain provider types with less "rich" staffing patterns would be disadvantaged if their unique characteristics were

not considered. After taking such differences into consideration, OMH and OPWDD promulgated regulations that established a definition of this term, applicable to all service types, based on the notion that a service recipient's need for safety should not be variable based upon which service setting in which he or she was receiving care. The definition has been working well, and no service types have been significantly disadvantaged in this respect, because the prompt turnaround times for criminal history reviews have diminished the need to utilize the temporary approval option. Thus, this qualifying language in the statute is not necessary.

Finally, Chapter 575 of the Laws of 2004 was further amended by Chapter 673 of the Laws of 2006, which extended the authority of OMH and OPWDD in Executive Law § 845-b to request criminal history background information on a national level from the FBI. However, also in 2006, Chapter 331 of the Laws of 2006 amended Executive Law §845-b to authorize QOH to request both State and national criminal history information. However, the bills establishing these Chapters were not reconciled, which has resulted in an awkwardly worded statute. This proposal would amend Executive Law § 845-b so that it is internally consistent, accurately reflects the roles and responsibilities of each agency to which it applies with respect to the receipt and distribution of information from the FBI, and clarifies that the provisions unique to FBI information do not apply only to DOH, but also to OMH and OPWDD.

This proposal also repeals the requirement that OMH, OPWDD and DOH adhere to previous decisions in cases in which an employee already cleared for employment leaves a particular employer and applies for employment with another, when the criminal history is unchanged and the circumstances of employment are substantially similar. This provision fails to reflect current practices where FBI checks, unlike New York State checks, do not provide for search and retain status to allow for an individual's criminal history, once hired or retained, to be continuously updated and sent to the authorized agencies. This confounds the agencies' ability to obtain up-to-date federal information on a subject individual's criminal history information. While agencies should certainly be guided by a previous decision, a. mandate to adhere to a previous determination is unduly onerous in light of the new authority to conduct FBI cheeks, where the national criminal history may have changed, but the agency may not know it unless new FBI checks are performed.

Authority for OMH and OPWDD to request FBI checks was established by Chapter 673 of the Laws of 2006, but the definition of "criminal history information" was not amended in this legislation. An expanded definition of "criminal history information" to include FBI checks was included in Chapter 331 of the Laws of 2006, which extends this authority to DOH with respect to nursing homes and home health care service agencies. This amendment clarifies that the expanded definition applies to OMH, and OPWDD as well as DOH.

Budget implications

The proposal is expected to have a minimal fiscal impact. The provision that adds persons over the age of 18 living in OMH family care homes or family based treatment programs would only include a very small pool of individuals whose histories must be obtained and reviewed, and there would be extremely minimal associated costs in implementing the background check process. OMH pays the fee for criminal history background checks for its local providers, which represents a cost of $99 (including both State and national checks) per applicant.

Effective date

The bill would take effect 180 days after enactment.