The Justice Center continues to monitor the situation regarding the closure and reduction of hours of some IdentoGo livescan locations around New York. Please be advised that many IdentoGo livescan locations remain open and are accepting appointments for fingerprinting. Providers of service that are required to request criminal background checks of their prospective employees should utilize whatever sites remain open at the time, understanding it can mean some applicants may have to travel further than under normal circumstances. Guidance regarding the implementation of Executive Order 202.13 can be obtained from your respective state oversight agencies.
The criminal background check (CBC) of a prospective employee or volunteer begins after:
- A provider has identified someone who would have regular and substantial unsupervised or unrestricted contact with persons receiving services in the NYS Office of Mental Health (OMH), the Office for People With Developmental Disabilities (OPWDD) programs, or the Office of Children and Family Services (OCFS) residential programs for children; and
- A provider has conducted a Staff Exclusion List (SEL) check and the individual is not on the list.
Providers designate staff members as Authorized Persons (AP) who are responsible for registering an applicant for fingerprinting and receiving the results of the background check. Providers utilize the firm MorphoTrust and its IdentoGO website for fingerprint registration. Please note, the applicant should be the “final” candidate for the position.
The Justice Center reviews the information received after fingerprinting and makes a suitability determination for the provider. The AP is sent a secure email message advising that the results of the determination are available in the Justice Center’s CBC system.
Applicants previously fingerprinted for work at a different agency must still undergo the fingerprinting process for the new position.
Temporary Approval: Providers may “temporarily approve” applicants and permit them to begin service if they do not have “unsupervised” or “unrestricted” physical contact with individuals receiving services. The provider must then update the applicant’s employment status in the CBC system to “Temporarily Approved Pending Criminal History Check.” More information is outlined in the Justice Center regulations.
Third Party Contractors: Providers intending to utilize the services of third-party contractors should first contact their State Oversight Agency to inquire about its policies regarding criminal background checks of such prospective employees.
The law specifies certain crimes that may "presumptively" disqualify an applicant from further consideration. They 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 a criminal history contains a conviction for any of these types of crimes, an applicant is not to be hired unless the Justice Center determines, after conducting a review pursuant to Article 23-A of the Correction Law, that the health, safety, and welfare of the provider's clients would not be jeopardized.
If the Justice Center considers issuing a denial, the CBC Unit is required by law to give an applicant the opportunity to explain why their application should not be denied. The Justice Center is also required by law to consider mitigating factors that support New York State’s policy to encourage the employment of people with criminal convictions. Factors include whether a direct relationship exists between the previous criminal activity and the position being sought, how old the applicant was, and how much time has passed since the offense was committed.
Generally, the CBC Unit will notify the AP indicating one of the following determinations:
- Pending: indicated by a notice that the application is “being processed” and a determination on suitability for employment has not yet been made;
- Held in abeyance: a determination cannot be made at the present;
- Not Denied – Criminal History: clearance indicating the applicant has a criminal history, but that the provider may consider approving the applicant for hire/volunteer service;
- Non-Denial: individual may have been printed civilly for an employment or an arrest(s) that did not result in a criminal conviction; or
- Not Denied – NonIdent: clearance indicating the applicant had never been fingerprinted before, either civilly for employment of criminally for an arrest.
In addition, the Justice Center must notify OPWDD providers if a candidate has a final, substantiated Category 2 finding. The finding does not automatically bar applicants from the position they are seeking, but should be used by providers to assist in making their hiring decisions.
The Justice Center will also inform the AP what actions the provider should take. A summary of the individual’s New York State criminal history will be included in the determination. Federal law prohibits dissemination of information obtained from an FBI check.
Employment Status Reports
Providers must update the Justice Center’s CBC system within 14 days of a change in employment status when an:
- Applicant has been hired or not;
- An individual is no longer employed by or affiliated with the provider;
- An application has been withdrawn; or
- An individual is placed on administrative leave.
If an employee/volunteer takes a leave of absence, the provider is not required to update that person’s status. Likewise, if a seasonal employee is expected to return the next year, the provider does not have to update the CBC system.
If an employee or volunteer is arrested in New York, the CBC unit will notify the provider’s AP. The provider is then responsible for conducting a facility safety assessment and taking all steps necessary to protect the people they are serving. The assessment must be maintained and if requested, forwarded to the audit unit of the applicable State Oversight Agency. The provider is additionally responsible for inquiring about the outcome of any pending charge if the individual remains in service.
Certain providers must run additional background checks.
NYS Mental Hygiene Law §16.34 Checks for OPWDD Providers
OPWDD providers are required to request Mental Hygiene Law §16.34 checks for prospective employees and volunteers. The request must be made through OPWDD. Information about this process is available at OPWDD.
Statewide Central Register Checks
Certain providers under Justice Center jurisdiction must also check the Statewide Central Register of Child Abuse and Maltreatment (SCR), operated by the New York State Office of Children and Family Services (OCFS). Providers should contact OCFS for information.
Keep On File
Providers are required to keep the following forms on file:
- The Applicant Consent Form for Fingerprinting, signed by the applicant, for six years after the party ceases to be a subject individual (generally, when he or she is no longer an employee); and
- Safety assessments upon notification of a subsequent arrest of an employee or volunteer.
CBC Guidance & Resources
The Justice Center maintains a list of all related Criminal Background Check documents and forms, which include guidance for providers, training information, and other information specific to oversight agencies.