Criminal History Record Check Legal Review

Daryl M. BarraAssociate Attorney

NYS Department of HealthUnit Leader, CHRC Legal Unit

518-408-1627

CHRC Legal Review

Legal Review

• 1,000,000 individuals processed by CHRC as of 12/31/2013 (Initial & Expedited)

• Individuals with a “Hit”Represents approx. 6% with a history however,

disposition resulted in a violation, infraction or dismissal (not a crime)

• 148,788 Individual cases processed by CHRC legal from 9/1/06 - 05/05/2014

• Begins with perfection of criminal history record;• Reviews criminal history following the statutory

framework;• Provides employer with determination about

suitability for employment;• Provides subject individual with opportunity to

provide rehabilitation evidence;• Balances the safety of vulnerable people against

the need to reduce criminal behavior through gainful employment

Summary –CHRC Legal Review Process

Who Is Subject To A Criminal History Record Check?

– RHCFs – any unlicensed person employed by or used by provider who:

• Provides direct care or supervision; or • Has access to a resident’s property and

belongings– HHAs, PCAs – any unlicensed person

employed by or used by provider for face-to-face care 10 NYCRR §402.3(i)

Who (cont’d)

• Who is not employed as a health care professionallicensed by State Education Department

• Who is not a volunteer• Who is not employed by a Hospice • Who is not a student• Who is not a Nursing Home Administrator

PHL §2899 (3), (6)

Definition Criminal Conviction

• Means a judgment or sentence for a charge of a felony or misdemeanor under NYS law or a comparable crime under any other jurisdiction.

AM Rap Sheet Delivery

Perfecting the Rap Sheet

Perfection – Contact with Courts

Entering the Charge History

Perfection!

Suitability of Employment Determination

10 NYCRR §402.7

Disqualifying Crimes Discretionary Crimes

Corrections Law Article 23-A

• Direct relationship between the position and one or more convictions

• Employment would cause an unreasonable risk to:

PropertySafetyWelfare of

Residents, patients or clients

23-A Factors

• Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct

• The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

23-A Factors

• Specific duties and responsibilities necessarily related to the employment sought

• The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties

23-A Factors, cont’d

• The time which has elapsed since the occurrence of the criminal offense or offenses

• The age of the person at the time of the occurrence of the criminal offense or offenses

• The seriousness of the offense or offenses

23-A Factors, cont’d

• Certificate of relief from disabilities or certificate of good conduct issued to the applicant

• The public policy of the state to encourage the employment of persons convicted of one or more criminal offenses

Reversals

• Rehabilitation Evidence • DCJS correction of information (juvenile

sealed records)

Individuals provided new and/or additional information

Reversals cont’d

• Encourage employees to provide rehabilitation evidence as soon as possible

• References from employer• Correct the rap sheet through DCJS

Rehabilitation Evidence

• Opportunity for written explanation as to why employment should not be denied after pending denial letter

– 30 days to submit written evidence – Employee removed from direct care – Information reviewed and a final employment

eligibility determination is made.

Evidence

• Certificate of Relief from Disabilities• Letter of recommendation/ prospective

employer• Letter of recommendation/other• Participation in Ex-offender program• Education/training achievements• Professional Achievements• Community Service Achievements

Evidence, cont’d

• Drug/alcohol rehabilitation (completion)• Completion of Anger Management or

similar programs• Certificate of good conduct• Work Experience • Other

Charges After Hire

• The provider is responsible for determining according to Article 23-A of the Correction Law whether the employee is a danger to the:

Health Safety andWell being

of a resident or patient

Abeyance v. Charges After Hire

• Abeyance Letter– Hiring decision – DOH requires disposition

information

– Charges after Hire – Requires Employer follow-up

– Article 23-A Analysis

Termination Notices

• Notice of employee termination must be in the form and format required by the commissioner

Questions