What You Need to Know About Background Checks to Work as a Home Health Aide or Certified Nursing Assistant

Once an employer wants to hire you, the employer is required to submit an electronic background check request through the Criminal History Record Check (CHRC) system of the Department of Health (DOH). Each and every time an employer wants to hire you as a CNA or HHA, DOH will run a criminal background check. DOH will request and receive your criminal record from the Federal Bureau of Investigation and the New York State Division of Criminal Justice Services. Once DOH receives your criminal record, DOH will determine whether you are eligible for employment and will send a letter to the employer. You can call DOH at 518-408-1627 to find out what type of letter DOH sent the employer. A list of the letters DOH may send to the employer are as follows:

“No hit” letter 
If you have no pending arrests and no criminal convictions (or if all your arrests and convictions have been sealed), DOH will send the employer this letter. This letter means DOH has approved you to work, and the letter does not list any arrests or convictions.

“Non-denial” letter
If you have at least one criminal conviction but DOH has determined that your conviction record should not prevent you from working as a CNA or HHA, DOH will send the employer this letter. This letter means DOH has approved you to work, but the letter also lists your convictions and states that the employer must make the final decision of whether to hire you. It is illegal for the employer to deny you employment based on your conviction record unless there is a direct relationship between the conviction record and the job, or your conviction record indicates that you pose an unreasonable risk to people or property.

“Not held in abeyance” letter
If you have open charges but DOH has determined that the open charges should not prevent you from working as a CNA or HHA, DOH will send the employer this letter. This letter means DOH has approved you to work, but the letter lists the pending charges and states that the employer must make the final decision of whether to hire you.

“Held in abeyance” letter
If you have open charges that DOH thinks could prevent you from being eligible for employment as a CNA or HHA, DOH will send the employer this letter. If your agency receives this letter, DOH prohibits you from providing direct care to patients until the criminal case is resolved and DOH makes a final determination of your eligibility for employment. You should send DOH the certificate of disposition for your criminal case as soon as it is resolved.

Pending denial
If you have at least one criminal conviction and DOH is considering denying your eligibility for employment, the employer will receive this letter. If the employer receives this letter, DOH prohibits you from providing direct care to patients. You will have 30 days to submit information to DOH, before DOH makes a final determination. It is very important that you respond to this letter. See Question 3, below, to learn how to respond to the letter.

Final denial
If DOH has determined you are ineligible for employment, your agency will receive this letter and you will be unable to work.

Step 1
Make sure DOH has an accurate record of your criminal record by reviewing the third page of the letter.

• If an offense is listed as a “charge”: DOH believes it is a pending case. If any “charges” are not actually pending, you should correct the error by sending DOH the court-issued certificate of disposition, the DA’s decline to prosecute letter, or the voided arrest letter. This response must be mailed or faxed to DOH within 30 days.
• If the offense is listed as a “conviction”: DOH believes it is a criminal conviction. If any “convictions” have been sealed or vacated, you should correct the error by sending DOH the certificate of disposition, sealing order, or vacatur order. This response must be mailed or faxed to DOH within 30 days.
• If you prove to DOH that you have no pending cases or unsealed convictions, DOH should clear you to work.

Step 2
Do you have any convictions that have not been sealed or vacated? If so, you should call DOH at 518-408-1627 and ask what documents the investigator wants you to provide and which convictions the investigator is concerned about.

• If there are any criminal cases pending against you, it is unlikely that DOH will clear you to work while the case is pending.

Step 3
If you answered “yes” to the question in Step 2, you should mail or fax a response to DOH that includes any documents requested by the DOH investigator, a personal statement, and evidence of your accomplishments. This should be done within 30 days of the date of the letter you received.

• Personal statement: The personal statement should explain the facts underlying any prior convictions, your remorse about committing the crimes, and your accomplishments since the time of the offenses.
• Evidence of Accomplishments: The response should also include evidence of your accomplishments, such as a Certificate of Relief from Disabilities or Certificate of Good Conduct, letters of recommendation from previous employers and others who can talk about your character, documents demonstrating participation in any rehabilitation, education, training, or community service programs, a resume, and anything else demonstrating your accomplishments and good conduct.

You can file an Article 78 petition in the New York Supreme Court within four months of the denial, or you can request reconsideration of the final denial by submitting more information to DOH in the form of a reconsideration request. DOH will take a long time to review the reconsideration request unless an employer submits your name to DOH as an employee they want to hire.

If you would like more information or assistance defending your rights, contact The Legal Aid Society’s Worker Justice Project by calling 888-663-6880 or emailing WorkerJustice@legal-aid.org. All services are free of charge.

The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.