NYSACRA

New Background Check Law is Unenforceable:
Analysis & Next Steps

While the law requires agencies to request and receive background history information o­n prospective employees, the law is unenforceable without the necessary regulations, forms, use and dissemination agreement and other processes that are required to set up and handle the fingerprints and/or to send out the background check information.  Some agencies may want to send a letter to the Division of Criminal Justice Services (DCJS) requesting the legally required form to be sent to them, however, as stated below, that form will not be available and as such, an agency is not liable under this new law.  Best advice right now is to do nothing, yet.   When and if the Legislature passes a Chapter Amendment and DCJS creates the appropriate form, you will need to comply with the law at that time.

Assembly Bill, A. 7161-c was signed into law o­n October 7, 2003, and added two new and identical sections of law to the Mental Hygiene Law.  Section §16.33 was added to Article 16 of the Mental Hygiene Law, which refers to Regulation and Quality of Services.  Section §31.35 was added to Article 31 of the Mental Hygiene Law, which refers to Regulation and Quality Control of Services for the Mentally Disabled.  These sections of the new law required every provider of services to request and receive criminal history information from the Division of Criminal Justice Services as below in Sections §16.33 (a) and §31.35 (a): 
 

“(a) Every provider of services, except a department facility, issued an operating certificate pursuant to this article shall request and shall be authorized to receive from the division of criminal justice services criminal history information, as such phrase is defined in paragraph (b) of subdivision o­ne of section eight hundred forty-five-b of the executive law, concerning each prospective employee of such provider who has or will have regularly unsupervised or unrestricted physical contact with the clients of such provider.”

 The section above establishes that a provider must act, however, it further states in Sections §16.33 (b) and §31.35 (b) that:
 

 (b) Access to and the use of such information shall be governed by the provisions of section eight hundred forty-five-b of the executive law.

 Clearly, no provider can act under this new law unless governed by §845-b of the Executive Law, which was added by this new law and is outlined below.

Section §845-b was added by this new law to Article 35 of the Executive Law, which refers to the duties of the Division of Criminal Justice Services. 

In Subdivision 3 (b) of Section §845-b of the NYS Executive Law, (as added by this new law) it states that:

“(b)  An  employer  requesting criminal history information pursuant to this section shall do so by  completing  a  form  established  for  such purpose  by  the  division.”

 It then spells out what the form shall contain.  Since no such form exists, you cannot be required to fill o­ne out.  In fact, until such form exists, you cannot fill o­ne out.

The new law requires another form to "obtain the signed, informed consent" of the prospective employee "on a form supplied by the Division" (Division is the Division of Criminal Justice Services or DCJS).  Obviously and for the same reasons, an employer cannot comply with this section of the law until DCJS provides the form.

The new law further states in Subsection 3 (c)(iii)(D) of Section §845-b of the NYS Executive Law that:

... “Upon receiving such written consent, the employer shall receive or obtain the fingerprints of such prospective employee pursuant to regulations established by the division.”

 There are no regulations promulgated from DCJS, thus no employer is authorized to obtain the fingerprints from the prospective employee.

The last point is regarding subdivision (5) of Section §845-b of NYS Executive Law that states:
 

5.  An employer authorized to request criminal history information pursuant to section 16.33 or 31.35 of the mental hygiene law may temporarily approve an applicant to be an employee while the results of the criminal history record check are pending, so long as such person does not have unsupervised contact with clients.

Since no employer is authorized to obtain such criminal history, there is no restriction o­n hiring.

Furthermore, the Governor, DCJS and OMR have indicated that they have no intention of prosecuting any agency for failure to comply with the new law and will not do so even if requested to by another party.  OMR will not survey agencies o­n this either.

It is our belief that you cannot legally obtain the fingerprints at this time, however, if you were to obtain the fingerprints and send the fingerprints to the Department of Criminal Justice Services (DJCS), they would simply return them, since in fact, you are not authorized to obtain them.  They have clearly stated that they have no intention of dealing with perhaps 700 separate employers, and will o­nly deal with the appropriate State agency, in this case, OMR.  DCJS currently processes fingerprints and criminal background checks for childcare providers, but o­nly through the State Office of Children and Families Services or a County Social Service agency.  With the current school district background check, all requests are handled through the State Department of Education.

While there is a chapter amendment that has been agreed upon, it cannot be passed until the Legislature reconvenes, which may be in November or not until January, so there is no Legislative remedy coming soon.  The Governor doesn't believe he has the authority to give an Executive Order extending the implementation date to allow time for developing the necessary regulations, forms and processes.

Some agencies insurance carriers are requiring additional language o­n background checks and perhaps fees to cover this additional liability.  Please let us know if this is the case.

If you are at all unsure of your duties or liabilities, please seek legal counsel.

If you would like more info, contact Forest Cotten at the NYSACRA office or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .