(b) Residential health care facilities licensed pursuant to article
twenty-eight of this chapter and certified home health care agencies and
long-term home health care programs certified or approved pursuant to
article thirty-six of this chapter or a health home, or any
subcontractor of such health home, who contracts with or is approved or
otherwise authorized by the department to provide health home services,
including enrollees who are under twenty-one years of age, under section
three hundred sixty-five-l of the social services law, except for a
health home, or any subcontractor of such health home, who contracts
with or is approved or otherwise authorized by the department to provide
health home services to all those enrolled pursuant to a diagnosis of a
developmental disability as defined in subdivision twenty-two of section
1.03 of the mental hygiene law; or any entity that provides home and
community based services to enrollees who are under twenty-one years of
age under a demonstration program pursuant to section eleven hundred
fifteen of the federal social security act, may, subject to the
availability of federal financial participation, claim as reimbursable
costs under the medical assistance program, costs reflecting the fee
established pursuant to law by the division of criminal justice services
for processing a criminal history information check, the fee imposed by
the federal bureau of investigation for a national criminal history
check, and costs associated with obtaining the fingerprints, provided,
however, that for the purposes of determining rates of payment pursuant
to article twenty-eight of this chapter for residential health care
facilities, such reimbursable fees and costs shall be reflected as
timely as practicable in such rates within the applicable rate period.
10. Notwithstanding subdivision eleven of section eight hundred
forty-five-b of the executive law, a certified home health agency,
licensed home care services agency or long term home health care program
certified, licensed or approved under article thirty-six of this chapter
or a home care services agency exempt from certification or licensure
under article thirty-six of this chapter, a hospice program under
article forty of this chapter, or an adult home, enriched housing
program or residence for adults licensed under article seven of the
social services law, or a health home, or any subcontractor of such
health home, who contracts with or is approved or otherwise authorized
by the department to provide health home services, including enrollees
who are under twenty-one years of age, under section three hundred
sixty-five-l of the social services law, except for a health home, or
any subcontractor of such health home, who contracts with or is approved
or otherwise authorized by the department to provide health home
services to all those enrolled pursuant to a diagnosis of a
developmental disability as defined in subdivision twenty-two of section
1.03 of the mental hygiene law; or any entity that provides home and
community based services to enrollees who are under twenty-one years of
age under a demonstration program pursuant to section eleven hundred
fifteen of the federal social security act may temporarily approve a
prospective employee while the results of the criminal history
information check and the determination are pending, upon the condition
that the provider conducts appropriate direct observation and evaluation
of the temporary employee, while he or she is temporarily employed, and
the care recipient; provided, however, that for a health home, or any
subcontractor of a health home, who contracts with or is approved or
otherwise authorized by the department to provide health home services,
including enrollees who are under twenty-one years of age, under section
three hundred sixty-five-l of the social services law, except for a
health home, or any subcontractor of such health home, who contracts
with or is approved or otherwise authorized by the department to provide
health home services to all those enrolled pursuant to a diagnosis of a
developmental disability as defined in subdivision twenty-two of section
1.03 of the mental hygiene law; or any entity that provides home and
community based services to enrollees who are under twenty-one years of
age under a demonstration program pursuant to section eleven hundred
fifteen of the federal social security act, direct observation and
evaluation of temporary employees shall not be required until July
first, two thousand nineteen. The results of such observations shall be
documented in the temporary employee's personnel file and shall be
maintained. For purposes of providing such appropriate direct
observation and evaluation, the provider shall utilize an individual
employed by such provider with a minimum of one year's experience
working in an agency certified, licensed or approved under article
thirty-six of this chapter or an adult home, enriched housing program or
residence for adults licensed under article seven of the social services
law, a health home, or any subcontractor of such health home, who
contracts with or is approved or otherwise authorized by the department
to provide health home services, including enrollees who are under
twenty-one years of age, under section three hundred sixty-five-l of the
social services law, except for a health home, or any subcontractor of
such health home, who contracts with or is approved or otherwise
authorized by the department to provide health home services to all
those enrolled pursuant to a diagnosis of a developmental disability as
defined in subdivision twenty-two of section 1.03 of the mental hygiene
law; or any entity that provides home and community based services to
enrollees who are under twenty-one years of age under a demonstration
program pursuant to section eleven hundred fifteen of the federal social
security act. If the temporary employee is working under contract with
another provider certified, licensed or approved under article
thirty-six of this chapter, such contract provider's appropriate direct
observation and evaluation of the temporary employee, shall be
considered sufficient for the purposes of complying with this
subdivision.
11. No provider shall seek, directly or indirectly, to obtain from a
prospective employee, temporary employee or employee compensation in any
form for the payment of the fee or any facility costs associated with
obtaining the criminal history information check required by this
article.
12. This article shall be deemed to supersede and apply in lieu of any
local laws or laws of any political subdivision of the state or any
regulations of the department requiring a criminal history record check
to the extent provided for in this article.