Judges: JAMES D. COLE, Assistant Solicitor General
Filed Date: 3/21/2002
Status: Precedential
Modified Date: 7/5/2016
J. Douglas McManus, Jr., Esq. Informal Opinion County Attorney No. 2002-12 County of Schenectady County Office Building 620 State Street Schenectady, New York 12305-2114
Dear Mr. McManus:
You have requested an opinion on three related but distinct questions regarding the permissibility of requiring criminal background checks on individuals seeking to provide care for elderly or infirm persons within the County of Schenectady. First, you ask whether the county may perform criminal history background checks on prospective employees of the Glendale Home, a county-owned nursing home. Second, you ask whether the county may require individuals seeking to provide personal care services under contract with the County Department of Health to submit to criminal history checks. Third, you ask whether the county may require privately-owned nursing homes located in the county to perform criminal history checks on their prospective employees. Each of these questions requires its own analysis and is dealt with separately. For ease of explication, the third question will be addressed here first.
Background
The Division of Criminal Justice Services ("Division") is the repository of criminal history records, which are essential to a criminal background check. See Executive Law §
Also relevant to your inquiry is Labor Law §
Except as otherwise provided by law, no person, as a condition of securing employment or of continuing employment shall be required to be fingerprinted. This provision shall not apply to employees of the state or any municipal subdivisions or departments thereof, or to the employees of legally incorporated hospitals, supported in whole or in part by public funds or private endowment, or to the employees of medical colleges affiliated with such hospitals or to employees of private proprietary hospitals.
Thus, the statute generally prohibits fingerprinting as a condition of securing or continuing employment. However, the statute expressly excepts state and municipal employees from the protection of this prohibition. It also excepts employees of "private proprietary hospitals." Because nursing homes are expressly included within the definition of "hospitals" in Public Health Law §
1. Private Nursing Homes
You have asked whether the county may require privately-owned nursing homes located in the county to conduct criminal background checks on prospective employees. Presumably, the means of achieving this goal would be through the enactment of legislation mandating that private nursing homes fingerprint their employees and conduct a background check.
In general, municipalities have broad police powers to enact local legislation concerning the health, safety, and well-being of their residents. N.Y. Const., art.
Here, the State has reserved to itself the regulation of the nursing home industry, expressly preempting local legislation in this arena. The Legislature has declared in the Public Health Law that:
In order to provide for the protection and promotion of the health of the inhabitants of the state . . ., the department of health shall have the central, comprehensive responsibility for the development and administration of the state's policy with respect to hospital and related services, and all public and private institutions, whether state, county, municipal . . . serving principally as facilities for the prevention, diagnosis or treatment of human disease . . . or physical condition . . . shall be subject to the provisions of this article.
Public Health Law, article 28, § 2800. Toward this end, P.H.L. § 2812 specifically prohibits counties, towns, villages and cities from enacting and enforcing any "regulations and standards for hospitals." As noted above, the definition of "hospitals" in the Public Health Law expressly includes nursing homes. P.H.L. § 2801(1). Because we conclude, as explained below, that P.H.L. § 2812 preempts the county's police power authority to enact local legislation, we determine that the county may not enact legislation requiring privately-owned nursing homes to conduct criminal background checks.
The preemptive scope of P.H.L. § 2812 is intentionally broad, as the provision's legislative history indicates. Prior to the enactment of section 2812 in its present form in 1973, article 28 of the Public Health Law contained no express preemption provision. Perhaps implicitly recognizing that article 28 occupied the field even in the absence of express preemption,1 the unamended version had provided only that New York City was not precluded from enacting and enforcing more restrictive regulations and standards. Prior to 1973, New York City had exercised this power through its Health Services Administration ("H.S.A."), which was authorized by statute and local law to "promulgate its own requirements governing the premises, equipment, personnel and standards of medical care and services" of proprietary nursing homes and hospitals in New York City. See Memorandum of Sen. Conklin, New York State Legislative Annual 1973, pp. 177-179. By 1973, however, the Legislature concluded that its intent to confer comprehensive authority on the Department of Health for the regulation of hospitals was being frustrated by the H.S.A.'s practice of subjecting proprietary hospitals and nursing homes to requirements that were inconsistent with or duplicated those imposed by the Department of Health. Expressly prohibiting local authorities, most specifically the H.S.A., from adopting their own regulations was necessary to alleviate the "hardship imposed upon proprietary hospitals or nursing homes, in having to comply with two completely inconsistent sets of requirements . . . ." Id. at p. 178.
In light of the statute's broad scope, a local law requiring private nursing homes to fingerprint and/or conduct criminal background checks of prospective employees would be, by its nature, a "regulation" or "standard" imposed upon the nursing home, and appears to be the type of requirement that the state statute was intended to preempt. Our conclusion is reinforced by the Department of Health's promulgation, pursuant to its authority to regulate nursing homes, of regulations addressing such matters as personnel requirements and qualifications.See, e.g, 10 N YC.R.R. § 415.26(a)(1) (requiring nursing home to employ duly licensed administrator); 10 N.Y.C.R.R. § 415.26(b)(2) and (3) (requiring home to employ such personnel as are necessary to provide required services to residents); 10 N.Y.C.R.R. § 415.26(c)(1)-(2) (governing staff qualifications and personnel management, orientation and training); 10 N.Y.C.R.R. § 415.26(d) (governing facility's nurse aide certification and training program). Because a criminal history background check, like the requirements in these regulations, concerns a qualification or condition of employment, a local law requiring such checks would seem to fall within the scope of local regulations or standards prohibited by § 2812.
Accordingly, given its broad language and legislative history, we conclude that P.H.L. § 2812 preempts the county's police power to enact and enforce a local law imposing such a requirement on private nursing homes.
Finally, we note that while the county may not require private nursing homes to fingerprint and perform criminal background checks, it appears that private nursing homes may do so if they choose. As noted above, Labor Law §
2. Employees of Schenectady County Nursing Home
We reach a different conclusion with respect to the county's authority to require fingerprinting and criminal background checks of prospective employees at its own nursing home. We conclude both that the county has sufficient affirmative authority to impose such requirements, and that this authority is not preempted by P.H.L. § 2812 or any other general state law of which we are aware.
We turn first to the question of whether the county has the affirmative authority to impose fingerprinting and background check requirements on its own prospective employees. State law authorizes counties to enact local laws relating to the terms and conditions of employment for municipal employees. Specifically, Article IX, § 2 of the State Constitution confers broad authority upon local governments to adopt local laws governing the terms and conditions of municipal employment. N.Y. Const. Art.
(1) The powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees . . . .
N.Y. Const. Art.
As noted in our response to your first question, a municipality's power to adopt local laws is limited to the extent the law is inconsistent with the Constitution or any general law, or to the extent the Legislature has restricted the adoption of such local law. See N.Y. Const. Art.
Public Health Law §
In defining the scope of similar preemptive language or congressional intent, the federal courts have held that state and local governments are preempted only when they act in their regulatory capacity, not when they are exercising a proprietary function. As the Supreme Court explained inBuilding and Constr. Trades Council of the Metropolitan Dist. v.Associated Builders and Contractors of Mass./Rhode Island, Inc.,
[w]hen we say that the NLRA pre-empts state law, we mean that the NLRA prevents a State from regulating within a protected zone. . . . A State does not regulate, however, simply by acting within one of these protected areas. When a State owns and manages property, for example, it must interact with private participants in the marketplace. In so doing, the State is not subject to pre-emption by the NLRA, because pre-emption doctrines apply only to state regulation.
The regulatory/proprietary distinction has been recognized in other contexts by other courts. See, e.g., Stucky v. City of San Antonio,
In our opinion, this principle distinguishes your first inquiry — whether the County may impose a requirement on all private proprietary nursing homes — from your second inquiry — whether the County may require fingerprinting and/or background checks of its own employees. The Court of Appeals has indicated that the provision of medical care is a proprietary function. See Schrempf v. State of NewYork,
The Division of Criminal Justice Services will perform a criminal history check in connection with an application for employment if such checks are authorized by law. See Executive Law §
3. Individuals Providing Personal Care Services Under Contract With the Schenectady County Department of Health
You have also asked us whether the county may require individuals who provide personal care services under contract with the county Department of Health to undergo criminal background checks. "Personal care services" are services provided in a patient's home and include personal hygiene services, housekeeping, simple health care tasks and other related supportive services. See P.H.L. § 3602(4). Counties are responsible for providing personal care services to Medicaid recipients when such services are essential to the maintenance of the recipient's health and safety in his or her own home. See
While Labor Law §
We believe the county's powers under the Constitution provide sufficient authority for a local law requiring fingerprinting and criminal background checks of such individuals to the extent such checks are necessary to protect the public health, safety, and welfare. The Constitution authorizes counties to adopt local laws relating to the protection of "order, conduct, safety, health, and well-being of persons or property." N.Y. Const. Art.
As with its employment power, the municipality may not enact laws relating to the safety, health and well-being of persons or property that are inconsistent with the Constitution or any general law, or to the extent the Legislature has restricted the adoption of such local law.See N.Y. Const. Art.
The county's authority with respect to provision of personal care services, however, has been restricted by other state laws. Personal care services are provided by the county in its role as the local agent of the State under the Medicaid program. See Social Services Law §§
With this in mind, we note that counties such as Schenectady County that engage outside entities or individuals to provide personal care services must use the model contract for personal care services promulgated by the State Department of Health. See 18 N.Y.C.R.R. § 505.14(c)(2). The county may attach local conditions to the contract if these provisions do not change the model contract's basic requirements. See 18 N.Y.C.R.R. § 505.14(c)(3)(i). However, proposed variations to the model contract must be submitted to the Department of Health for approval prior to implementation. See 18 N.Y.C.R.R. § 505.14(c)(3)(ii). While a contractual term that requires personal care providers to submit to fingerprinting and criminal background checks does not appear to alter the model contract requirements, Schenectady County may place such a condition in its provider contracts only after the county obtains the approval of the Department of Health.
Thus, while a local law requiring fingerprinting and background checks for personal care service providers is generally within the county's home rule authority, that authority may only be exercised with the approval of D.O.H.
The Division of Criminal Justice Services will perform criminal history checks of these individuals if authorized by local law. See Executive Law §
Conclusion
We conclude that the County of Schenectady may require prospective employees of the Glendale Home to provide fingerprints as a condition of employment and may, pursuant to local law and agreement with the Division of Criminal Justice Services, obtain criminal history records based upon the employees' fingerprints. The county may also, by local law, require the fingerprinting of those seeking to provide personal care services in the county, and may, by local law and agreement with the Division of Criminal Justice Services, obtain the criminal history records of those individuals. The county may not, however, require proprietary nursing homes located within the county to conduct criminal background checks on prospective employees.
The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
JAMES D. COLE, Assistant Solicitor General
In Charge of Opinions
By: __________________________
KATHLEEN M. TREASURE
Assistant Solicitor General
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