Criminal History Record Check Legal Review. Daryl M. Barra Associate Attorney NYS Department of Health Unit Leader, CHRC Legal Unit

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1 Criminal History Record Check Legal Review Daryl M. Barra Associate Attorney NYS Department of Health Unit Leader, CHRC Legal Unit

2 CHRC Legal Review

3 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

4 Summary CHRC Legal Review Process 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

5 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-toface care 10 NYCRR 402.3(i)

6 Who (cont d) Who is not employed as a health care professional licensed 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)

7 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.

8 AM Rap Sheet Delivery

9 Perfecting the Rap Sheet

10 Perfection Contact with Courts

11 Entering the Charge History

12 Perfection!

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14 Suitability of Employment Determination 10 NYCRR Disqualifying Crimes Discretionary Crimes

15 Corrections Law Article 23-A Direct relationship between the position and one or more convictions Employment would cause an unreasonable risk to: Property Safety Welfare of Residents, patients or clients

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18 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.

19 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

20 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

21 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

22 Reversals Rehabilitation Evidence DCJS correction of information (juvenile sealed records) Individuals provided new and/or additional information

23 Reversals cont d Encourage employees to provide rehabilitation evidence as soon as possible References from employer Correct the rap sheet through DCJS

24 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.

25 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

26 Evidence, cont d Drug/alcohol rehabilitation (completion) Completion of Anger Management or similar programs Certificate of good conduct Work Experience Other

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29 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 and Well being of a resident or patient

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31 Abeyance v. Charges After Hire Abeyance Letter Hiring decision DOH requires disposition information Charges after Hire Requires Employer follow-up Article 23-A Analysis

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34 Termination Notices Notice of employee termination must be in the form and format required by the commissioner

35 Questions