What is a criminal history background check?

A criminal history background check (CBC) is a request for information regarding pending criminal charges and criminal convictions of a prospective employee or volunteer who will have regular and substantial unsupervised or unrestricted contact with persons receiving services through a service provider.   Although it is the responsibility of each provider of services to decide whether a position for which persons are applying will have this type of contact, generally speaking, these positions would involve in-person, face-to-face communication or interaction, while not in the reasonable physical proximity of another person, who is employed or under contract with the provider of services.

Who is required to undergo a CBC?

Applicants for employment or volunteers for a position that involves regular and substantial unsupervised or unrestricted contact with persons receiving services in OMH and OPWDD programs and OCFS residential programs for children are required to have their criminal history information obtained and reviewed by the Justice Center.  An individual who meets the following criteria is referred to as a “subject individual” under the law:

  • Prospective employees that are contractors or consultants who will have the same level of client contact.  This may include persons who were already employed by a provider before the law went into effect (June 30, 2013), but who seek to move to a different position within the same provider where they will now have the requisite level of contact.
  • If the aforementioned employee’s job responsibilities will change significantly, or if the client population with whom the he/she has contact changes (e.g., if the current position involves contact with adults, but in the future, you wish to change the job responsibilities of this individual to include contact with children), please contact the Justice Center’s CBC Unit for further guidance.   The law also requires new "natural person operators" of licensed providers to have criminal history record checks (a "natural person operator" is an individual with ownership interest in the provider).  An individual who meets these criteria is referred to as a "subject individual" under the law.  
Who is required to request a CBC?

The Authorized Person designated by providers of OMH and OPWDD programs and OCFS residential programs for children are required to request a CBC. Instructions on how to make a request can be found on the Justice Center’s website on the Pre-Employment Checks tab.

How are requests made for a CBC?

Once an applicant is registered and fingerprinted, requests for a State and federal criminal history are made through the Justice Center’s CBC Unit to the Division of Criminal Justice Services (DCJS) and the Federal Bureau of Investigation (FBI). Fingerprints are submitted to DCJS and the FBI through a Justice Center process. The results of the fingerprint submission are sent to the CBC Unit, which reviews the information and advises the service provider’s Authorized Person(s) as to whether or not the applicant has a criminal history and, if so, whether such criminal history precludes the individual from being hired.

What types of crimes can lead the Justice Center or provider to reach a determination that an applicant is not suitable for employment?

The law specifies crimes that "presumptively" disqualify an applicant from further consideration. The Justice Center has authority to make determinations with regard to other crimes. The "presumptively disqualifying" crimes listed in the statute are:

  • A felony conviction at any time for a sex offense;
  • A felony conviction within the past ten years involving violence;
  • A conviction pursuant to Penal Law (PL)  section(s) 260.00, 260.25, 260.32 or 260.34;  or
  • Any similar offense in any other jurisdiction outside of New York State. 

If an applicant's criminal history reveals a conviction for any of these types of crimes, he or she cannot be hired unless the Justice Center determines that the health, safety, and welfare of the provider's clients would not be jeopardized.

In addition, the Justice Center may issue a denial based on any criminal conviction (misdemeanor or felony), consistent with factors that support State policy to encourage the employment of people with criminal convictions as defined by Article 23-A of the Correction Law.  Mitigating factors include whether there is a direct relationship between the previous criminal activity and the position being sought. Other factors, such as the amount of time that has elapsed since the commission of the offense are also to be considered. 

When should a CBC occur?

The CBC should occur after the SEL has been checked. If the applicant is not on the SEL then the Authorized Person must register the applicant for fingerprinting with MorphoTrust at www.identogo.com or by calling MorphoTrust’s toll-free number (877) 472-6915. The prospective employee/volunteer should be the “final” candidate for the position. The CBC process should not be used a screening tool for candidates.

What forms must be submitted?

Authorized Person Designation forms for CBC and SEL must be submitted to the Justice Center's CBC Unit for new Authorized Persons. 
Authorized Person Revocation forms must be submitted to the Justice Center's CBC Unit with an Authorized Person will no longer be acting in that role.  

What is the process for fingerprint submission?

 The list of sites can be obtained and appointments can be scheduled by visiting the IdentoGO website at www.identogo.com or by calling MorphoTrust’s toll-free number at (877)472-6915. The applicant must bring necessary identification (picture ID) in order to be fingerprinted. Further details are available on the Pre-Employment Checks tab of the Justice Center’s website.

Is there a fee for the fingerprint process?

As of January 1, 2017, the current fee is $99.00

How are the results of the CBC received?

Notification that a determination has been made will be sent electronically, through a secure email message system, to the work email address of the Authorized Person(s). The results of the determination are available in the Justice Center’s CBC system which the Authorized Person can access and view.

How long will it take to receive the results of the CBC?

If there is no criminal history, results are typically available 2-3 days after the fingerprints are processed. However, if a criminal history exists, the process may take longer.

What are the possible results of the CBC?

Generally, the Justice Center CBC Unit will notify the Authorized Person(s) indicating one of the following determinations:

  • denial;
  • pending (indicated by a notice that the application is “being processed”);
  • held in abeyance (meaning that a determination cannot be made at the present); or
  • non-denial;
  • not denied – nonident.

The CBC unit will also inform the Authorized Person what actions shall or may be taken by the provider regarding the applicant. A summary of the subject individual’s New York State criminal history will be included in the determination. Federal law prohibits dissemination of information obtained from an FBI check.

The Not Denied-NonIdent determination should be considered a clearance as it indicates that the applicant has never been fingerprinted before, either civilly for employment of criminally for an arrest.

Are persons who provide services to a provider through a third party contractor, such as a staffing agency subject to a CBC?

Persons who provide services to a provider through a third party contract are not subject to the Justice Center criminal history background check requirements unless the contracts at issue are for mental health services (e.g., examination, diagnosis, care, treatment, rehabilitation, or training of service recipients) and the contracts are approved or are otherwise authorized by the appropriate State Oversight Agency (e.g., OMH , OPWDD or OCFS monitors the contract services provided under the contract, or otherwise approves how the money is spent). 

Can a service provider hire an individual to work with persons receiving services prior to receiving the results of the CBC?

After an applicant has been physically fingerprinted, while awaiting the response from the Justice Center, providers may “temporarily approve” the applicant and permit him/her to begin performing services provided that he or she does not have “unsupervised” or “unrestricted” physical contact with the provider’s clients.

Because temporary approval status is only available pending a determination from the Justice Center, the provider may be able to discover this history by requesting information directly from the applicant about past criminal history in its initial application process. Also, if the Justice Center receives a criminal history record that includes a conviction or pending charge for any of the aforementioned crimes, the Justice Center will check to ensure the person has not been placed in temporary approval status. If so, the Justice Center will immediately contact the provider to ensure that he/she is removed from temporary approval status.

What can applicant do if the Justice Center indicates it intends to issue a denial based on the CBC?

The Justice Center will afford the applicant an opportunity to explain, in writing, why the application should not be denied prior to making a determination. The law requires that any information produced by the applicant, or produced on his/her behalf, that demonstrates his/her rehabilitation and good conduct will be considered.

What forms must a service provider keep on file?

Once it has been determined that an applicant meets the criteria for a CBC, the applicant must complete the Applicant Consent Form for Fingerprinting found on the Forms tab of the Justice Center’s website. This form must be kept on file by the provider’s Authorized Person(s), and must be available if so requested by the Justice Center or the State Oversight Agency for six years after the party ceases to be a subject individual (generally, when he or she is no longer an employee).

Authorized Person Designation forms for CBC and SEL  must be kept on file for six years following the removal of the party as an authorized person;

Safety assessments upon notification of a subsequent arrest of an employee or volunteer must be kept on file pursuant to the requirements of the State oversight agency.

What steps must be taken when a person separates from service or is not hired (or a volunteer stops volunteering)?

The Justice Center CBC Unit must be notified when an individual ceases to be employed by or affiliated with the provider or is not hired by the provider. Such notification is accomplished by updating the applicant's status in the Justice Center's CBC system. Instruction on how to do this update is found on the Help tab in the CBC system. 

If the subject party is taking a leave of absence the provider is not required to update the status in the CBC system. If a provider hires a seasonal employee and the employee is expected to return the next year, the provider does not have to update the status. If a seasonal employee is not expected to return, the status should be updated.

The service provider must immediately, but no later than 14 days after the event inform the Justice Center by updating the Employment Status option in the CBC system when:

  • an application has been withdrawn,
  • if an individual has been hired or not hired, 
  • an individual is placed on administrative leave; or
  • an individual whose criminal history was reviewed by the Justice Center has left the provider’s employ.
What happens if an individual has a subsequent arrest?

The criminal history information originally obtained by the Justice Center will continue to be updated, but only with respect to arrest activity in New York State. The Justice Center CBC Unit will send notice to the Authorized Person if the subject individual is arrested after the original determination.

The service provider is responsible for conducting a safety assessment of the service environment and taking all appropriate steps to protect the health and safety of persons receiving services. In addition, the provider is responsible for inquiring about the outcome of any pending charge if the individual remains in service with the provider. The safety assessment must be documented and if requested, forwarded to the audit unit of the applicable State Oversight Agency. OPWDD providers may utilize the OPWDD Safety Assessment Questionnaire found on the Justice Center’s website on the “Forms” tab.

What if a service provider decides not to retain the individual after an arrest notification is received?

Justice Center regulations require that if a person is no longer a subject individual, the CBC Unit must be notified within 14 days of the event. (See: What steps must be taken when a person separates from service or is not hired or a volunteer stops volunteering?)

Where can more detailed instructions on filling out the required forms be found?

The forms and more detailed information regarding the forms and information regarding CBC policies and procedures can be found on Pre-Employment Checks tab of the Justice Center website or by calling the Justice Center CBC unit at (518) 549-0361.

Does someone need to be re-fingerprinted if they are going to work at another provider agency?

Yes. The New York State Division of Criminal Justice Services and the FBI prohibit the sharing of fingerprint results among different agencies.  An individual has to be fingerprinted for the provider he or she will be working with.

While it may seem redundant, criminal history responses are not static and can change.  A criminal history response for someone printed last year would not have an arrest or dismissal of a case that happened after the initial fingerprinting.

Does the Fair Chance Act or Ban to Box laws apply to criminal background checks conducted by the Justice Center?

No, laws prohibiting an employer from asking an applicant about his or her criminal record until after offering a job do not apply to criminal background checks conducted by the Justice Center. Applicants for OMH, OPWDD and covered OCFS programs are still required to complete and sign the Applicant Consent Form for Fingerprinting, including answering question #7, as they have done in the past.