NY Soc Serv L § 390-B (2021)
2021 New York Laws SOS - Social Services Article 6 - Children Title 1 - Care and Protection of Children 390-B - Criminal History Review and Background Clearances of Child Care Providers, Generally.

§  390-b.   Criminal history review and background clearances of child care providers, generally.   1. Notwithstanding any other provision of law  to  the  contrary,  and subject  to  rules  and regulations of the office of children and family services  and,  where  applicable,  the  division  of  criminal  justice services,  the  following  clearances  shall  be  conducted for entities specified in subdivision two of this section in the time and  manner  as required by this section:  (a)  a  criminal  history  record  check with the division of criminal justice services;  (b) a search of the criminal history repository in  each  state  other than  New York where such person resides or resided during the preceding five years, if applicable unless such state's  criminal  history  record information  will  be  provided  as part of the results or the clearance conducted pursuant to paragraph (c) of this subdivision;  (c) a national criminal  record  check  with  the  federal  bureau  of investigation;  the division of criminal justice services is directed to submit fingerprints to the  federal  bureau  of  investigation  for  the purpose  of  a nationwide criminal history record check, pursuant to and consistent with public law 113-186 to  determine  whether  such  persons shall have a criminal history in any state or federal jurisdiction;  (d) a search of the New York state sex offender registry;  (e)  a search of any state sex offender registry or repository in each state other than New York where such person resides  or  resided  during the preceding five years, if applicable unless such state's sex offender registry information will be provided as part of the clearance conducted pursuant to paragraph (f) of this subdivision;  (f)  a search of the national sex offender registry using the national crime and information center, established under  the  Adam  Walsh  child protection and safety act of 2006 (42 U.S.C. 16901 et seq.);  (g)  a database check of the statewide central register of child abuse and maltreatment in accordance with section four  hundred  twenty-four-a of this article; and  (h) a search of a state-based child abuse or neglect repository of any state  other  than  New York where such person resides or resided during the preceding five years; if applicable.   1-a. For purposes of this section, and in accordance with federal law, the term "enrolled legally-exempt provider" shall refer to a person  who meets the definition of "enrolled legally-exempt provider" as defined in paragraph (g) of subdivision one of section three hundred ninety of this title  and  who  is not an individual who is related to all children for whom child care services are provided.   2. In relation  to  any  child  day  care  program  and  any  enrolled legally-exempt provider:  (a)  the  clearances required pursuant to paragraphs (a), (c), (d) and (g) of subdivision one of this section shall be conducted for:  (i) every prospective volunteer with the  potential  for  unsupervised contact with children in care;  (ii) every applicant to become an enrolled legally-exempt provider;  (iii)  every  prospective  employee,  director  or  operator of such a program or provider; and  (iv) every individual eighteen years of age and over residing  or  who begins  to  reside in a home where services are or will be provided in a family or group family setting; and  (v) every individual eighteen years of age and over  residing  or  who begins  to  reside  in a home where services are or will be provided who are not related in any way to all children receiving services as or will be provided by an enrolled legally exempt provider;  (b) notwithstanding any other provision of law to the contrary,  prior to  October  first,  two  thousand  twenty,  all  clearances  listed  in subdivision one of this section that have not previously been  conducted pursuant  to  paragraph  (a)  of this subdivision and for which on-going criminal history results are not already provided, shall be conducted in accordance  with  a  schedule  developed  by  the office of children and family services, for all:  (i) existing volunteers with the potential  for  unsupervised  contact with children in care;  (ii) existing caregivers for an enrolled legally exempt provider;  (iii)  existing employees, directors and operators of any such program or provider; and  (iv) every individual eighteen years of age and over residing  or  who begins  to  reside in a home where services are or will be provided in a family or group family setting; and  (v) every individual eighteen years of age and over  residing  or  who begins  to  reside  in a home where services are or will be provided who are not related in any way to all children receiving services as or will be provided by an enrolled legally exempt provider;  (c) notwithstanding any other provision of law to  the  contrary,  the clearances  required pursuant to this section other than those for which on-going criminal history results are provided, shall be conducted for a person listed in subparagraphs (i), (ii), (iii) and  (iv)  of  paragraph (b)  of  this  subdivision  at least once every five years in accordance with a schedule developed by the office of children and family services.   3. (a) Notwithstanding any other provision of law to the contrary,  in relation  to  the  clearances  required  pursuant  to  this  section, an individual or a program or provider shall be deemed ineligible, as  such term   is  defined  in  paragraph  (b)  of  this  subdivision,  if  such individual:  (i) refuses to consent to such clearance;  (ii) knowingly makes a materially false statement in  connection  with such a clearance;  (iii)  is  registered, or is required to be registered, on a state sex offender registry or repository or the national  sex  offender  registry established under the Adam Walsh child protection and safety act of 2006 (42 U.S.C. 16901 et seq.); or  (iv)  has  been convicted of a crime enumerated in subparagraph (E) or clauses (i) through (viii) of  subparagraph  (D)  of  paragraph  (1)  of subdivision (C) of 42 U.S.C. 9858f.  (b) For purpose of this subdivision, the term "ineligible" shall mean:  (i)  the  individual who engaged in conduct listed in paragraph (a) of this subdivision shall not be permitted to:  (1) operate, direct, be the caregiver for, or be employed by  a  child day care program or an enrolled legally-exempt provider; or  (2)  be  a  volunteer with the potential for unsupervised contact with children in a child day care program or with an enrolled  legally-exempt provider; or  (3) be an enrolled legally exempt provider; or  (ii)   in  relation  to  child  day  care  programs  or  any  enrolled legally-exempt providers, where child care is,  or  is  proposed  to  be provided, to a child in a home setting where such child does not reside, such  program  or  provider  shall  not  be eligible to operate or to be enrolled to serve children receiving child care  subsidies  pursuant  to title  five-C of this article, if an individual over the age of eighteen who is not related in any way  to  all  children  for  whom  child  care services  are  or will be provided, resides in the household where child  care is, or is proposed to be provided, engaged  in  conduct  listed  in paragraph (a) of this subdivision.   3-a.  (a)  In  relation  to  child  day care programs and any enrolled legally-exempt provider, when a clearance  conducted  pursuant  to  this section  reveals  that  any  existing  operator, director, caregiver, or person over the age of eighteen who is not related in  any  way  to  all children  for  whom  child  care  services are or will be provided, that resides in a home where child care is provided in a home  setting  where the  child  does not reside has been convicted of a crime other than one set forth in subparagraph (iv) of paragraph (a) of subdivision three  of this section, and unless such crime is eligible for expungement pursuant to  section 160.50 of the criminal procedure law, the office of children and family services shall conduct a safety assessment of the program and take all appropriate steps to protect  the  health  and  safety  of  the children  in the program, and may deny, limit, suspend, revoke or reject such program's license or  registration  or  terminate  or  reject  such program's  enrollment,  as applicable, unless the office of children and family services, determines in its discretion, that continued  operation by  the  child day care program or enrolled legally-exempt provider will not in any way jeopardize the health, safety or welfare of the  children cared for in the program or by the provider.  (b)   In  relation  to  child  day  care  programs  and  any  enrolled legally-exempt provider, when a clearance  conducted  pursuant  to  this section  reveals  that  any  existing  employee  or  volunteer  with the potential for unsupervised contact with children has been convicted of a crime other than one set forth in subparagraph (iv) of paragraph (a)  of subdivision three of this section, and unless such crime is eligible for expungement  pursuant  to  section 160.50 of the criminal procedure law, the office of  children  of  family  services  shall  conduct  a  safety assessment  of the program and take all appropriate steps to protect the health and safety of the children in the program. The office of children and family services may direct the program or provider to terminate  the employee  or  volunteer  based  on  such  a  conviction, consistent with article twenty-three-A of the correction law.  (c) (i) In relation to any child day care programs  and  any  enrolled legally-exempt  providers,  where a clearance conducted pursuant to this section reveals a conviction for a crime other than  one  set  forth  in subparagraph (iv) of paragraph (a) of subdivision three of this section, and  unless  such  crime is eligible for expungement pursuant to section 160.50 of the criminal procedure law, for any  prospective  employee  or volunteer,  the  office  of children and family services may direct that such person not be hired, as applicable, based  on  such  a  conviction, consistent with article twenty-three-A of the correction law.  (ii)  In  relation  to  any  child  day  care program and any enrolled legally-exempt provider, when a clearance  conducted  pursuant  to  this section  reveals  a  conviction  for a crime other than one set forth in subparagraph (iv) of paragraph (a) of subdivision three of this section, and unless such crime is eligible for expungement  pursuant  to  section 160.50  of  the  criminal  procedure  law, for any prospective caregiver seeking enrollment, or applicant to  be  a  director  or  operator,  the office  of  children  and  family  services  may deny the application or enrollment, consistent with article  twenty-three-A  of  the  correction law.  (d)  (i)  Where a clearance conducted pursuant to this section reveals that an applicant to be the operator or director of  a  child  day  care program, or applicant to be a caregiver, or anyone who is not related in any  way  to all children for whom child care services will be provided, resides in the home over the age of eighteen where  child  day  care  is  proposed  to  be  provided  to children in a home-based setting has been charged with a crime, the office of children and family  services  shall hold the application in abeyance until the charge is finally resolved.  (ii) Where a clearance conducted pursuant to this section reveals that the  current  operator  or  director of a child day care program, or any person over the age of eighteen who is not related in  any  way  to  all children  for whom child care services will be provided, that resides in a home where child day care is provided has been charged with  a  crime, the  office  of  children  and  family  services  shall conduct a safety assessment of the program and take all appropriate steps to protect  the health and safety of children in the program. The office of children and family  services  may  suspend  a  license  or registration or terminate enrollment based on such a charge when necessary to protect  the  health and safety of children in the program.  (iii)  Where  a  clearance  conducted pursuant to this section reveals that an existing caregiver, volunteer or  an  existing  employee  of  an enrolled  legally-exempt provider or any person over the age of eighteen that resides in a home where the child care is provided by  an  enrolled legally-exempt  provider  in  a  home  setting  where the child does not reside, has been charged with a crime, the office of children and family services shall take one or more of the following steps:  (A) Conduct a safety assessment; or  (B) Take all appropriate steps to protect the  health  and  safety  of children in the program.  (iv) Where a clearance conducted pursuant to this section reveals that an  applicant  to  be  an  employee  or volunteer with the potential for unsupervised contact with children  of  a  child  day  care  program  or enrolled  legally-exempt  provider  has  been  charged with a crime, the office shall hold the  application  in  abeyance  until  the  charge  is finally resolved.  (v)  Where a clearance conducted pursuant to this section reveals that a  current  employee,  or  current  volunteer  with  the  potential  for unsupervised  contact with children of a child day care program has been charged with a crime, the office of children and family  services  shall conduct  a  safety  assessment  of  the program and take all appropriate steps to protect the health and safety of the children in the program.   3-b.  All  persons  who  are  subjected  to  a  criminal  history  and background  clearance and safety assessment pursuant to this section who the office of children and family services  determines:  (i)  should  be denied enrollment, employment, or the ability to volunteer pursuant to a background  clearance  analysis  performed by the office of children and family services, and (ii) where such denial is not based on  an  offense listed in paragraph (a) of subdivision three of this section, shall have the ability to request a de novo review of the article twenty-three-a of the  correction law determination in an administrative hearing before an administrative law judge, to be held and completed  before  the  present employer  is notified of such clearance determination. Such person shall have reasonable notice concerning  the  determination,  and  information regarding  how to request a hearing to review that determination, and an opportunity to provide any additional information that such person deems relevant to such determination. Such person may choose to  be  heard  in person,   by  video  conference  if  reasonably  available,  or  through submission of written materials. Where such request is made, the  office of  children  and  family  services shall also have an opportunity to be heard.   4. Prior to making a determination to deny an application pursuant  to subdivision  three  of  this  section, the office of children and family  services shall afford  the  applicant  an  opportunity  to  explain,  in writing, why the application should not be denied.   5.  Notwithstanding  any  other  provision of law to the contrary, the office of children and family  services,  upon  receipt  of  a  criminal history  record  from  the  division  of  criminal justice services, may request, and is entitled to receive, information pertaining to any crime contained in such criminal history record from any state  or  local  law enforcement agency, district attorney, parole officer, probation officer or  court for the purposes of determining whether any ground relating to such criminal conviction or pending criminal charge exists for denying a license, registration, application or employment.   6. The office of children and family services shall pay  any  required processing fee for a criminal history or sex offender clearance pursuant to  this  section.  The  office  of  children  and family services shall promptly submit fingerprints obtained pursuant to this section and  such processing fee to the division of criminal justice services.   7.  Where  the  office of children and family services or its designee denies or directs  a  child  day  care  or  an  enrolled  legally-exempt provider  to  deny  an application based on the criminal history record; (a) the provider must notify the applicant that such record is the basis of the denial; and (b) the office of children and family services  shall also  notify  as  the case may be, such current or prospective operator, director, employee, assistant, legally exempt provider,  volunteer  with the  potential  for  unsupervised  contact with children or other person eighteen years of age or older, who resides in the home  where  care  is provided,  other  than  the child's home, that the criminal record check was the basis for  the  denial  of  clearance  and  shall  provide  such individual  with  a  copy of the results of the national criminal record check upon which such denial was based together with a written statement setting forth the reasons for such denial, as well as a copy of  article twenty-three-A  of  the correction law and inform such individual of his or her right to seek correction of any incorrect  information  contained in  such  national  record  check  provided  by  the  federal  bureau of investigation.   8. Any safety assessment  required  pursuant  to  this  section  shall include  a  review  of the duties of the individual, the extent to which such individual may  have  contact  with  children  in  the  program  or household   and  the  status  and  nature  of  the  criminal  charge  or conviction. Where the office of children and  family  services  performs the safety assessment, it shall thereafter take all appropriate steps to protect  the  health  and safety of children receiving care in the child day care center, school age child care program, family day care home  or group family day care home.   9.  (a)  Any  criminal  history  record  provided  by  the division of criminal justice services, and  any  summary  of  the  criminal  history record  provided  by  the  office  of  children and family services to a person  that  receives  a  clearance  pursuant  to  this   section,   is confidential and shall not be available for public inspection; provided, however,  nothing herein shall prevent the office of children and family services from disclosing criminal history information or the  individual from   disclosing  his  or  her  criminal  history  information  at  any administrative  or  judicial  proceeding  relating  to  the  denial   or revocation  of  an application, employment, license or registration. The subject of a criminal history review conducted pursuant to this  section shall  be  entitled  to  receive,  upon  written  request, a copy of the summary of the criminal history record. Unauthorized disclosure of  such records  or  reports  shall  be subject to civil penalties in accordance  with the provisions of  subdivision  eleven  of  section  three  hundred ninety of this title.  (b)  The  office of children and family services shall not release the content of the results of the nationwide criminal history  record  check conducted by the federal bureau of investigation in accordance with this subdivision to any non-public entity.   10.  A child day care or enrolled legally-exempt provider shall advise the office of children and family services when  an  individual  who  is subject to criminal history record review in accordance with subdivision one  or  two  of  this  section is no longer subject to such review. The office of children and family services  shall  inform  the  division  of criminal  justice services when an individual who is subject to criminal history review is no longer subject to such review so that the  division of  criminal  justice  services may terminate its retain processing with regard to such person. At least once a year, the office of children  and family  services will be required to conduct a validation of the records maintained by the division of criminal justice services.   11. Child day care centers which are not subject to the provisions  of section  three  hundred ninety of this title shall not be subject to the provisions of this section, provided however, that the city of New  York shall  require that such child day care centers meet the requirements of any  federal  laws  and  regulations  pertaining  to  the   child   care development  and block grant and the related federally approved plans of the state of New York.