NY Soc Serv L § 424-A (2021)
2021 New York Laws SOS - Social Services Article 6 - Children Title 6 - Child Protective Services 424-A - Access to Information Contained in the Statewide Central Register of Child Abuse and Maltreatment.

§  424-a.  Access  to  information  contained in the statewide central register of child abuse and maltreatment. 1.  (a) (i) A licensing agency shall inquire of the department and the department shall, subject to the provisions of paragraph (e) of this subdivision, inform such agency  and the  subject  of  the  inquiry  whether  an applicant for a certificate, license or permit, the director of a camp subject to the  provisions  of article  thirteen-B  of  the  public health law, a prospective successor guardian when a clearance is conducted  pursuant  to  paragraph  (d)  of subdivision  two  of section four hundred fifty-eight-b of this article, and any person over the age of eighteen who resides in  the  home  of  a person  who  has applied to become an adoptive parent or a foster parent or any person over the age  of  eighteen  residing  in  the  home  of  a prospective  successor  guardian  when  a  clearance  is  conducted of a prospective successor guardian pursuant to this paragraph, has  been  or is  currently  the  subject of an indicated child abuse and maltreatment report on file with the statewide central register of  child  abuse  and maltreatment.  (ii)  A  licensing  agency  shall  inquire  of  the  office whether an applicant for a certificate, license or permit to operate a  child  care program  including  a  family day care home, group family day care home, child care center, school age child care program,  or  enrolled  legally exempt provider or an employee, volunteer or applicant to be an employee or  volunteer  in  such  program  who  has  potential  for  regular  and substantial contact with children  in  the  program,  is  the  confirmed subject  of  an indicated child abuse report maintained by the statewide central register of child  abuse  and  maltreatment.  The  office  shall promulgate  regulations  related  to  the process by which providers and applicants will be informed  whether  the  applicant  is  authorized  or unauthorized to care for children based on the outcome of such inquiry.  (iii)  A  licensing  agency  shall  inquire  of the office whether any person age eighteen or older who is  not  related  in  any  way  to  all children for whom care is provided that resides on the premises of where child  care is provided in a setting that is not the child's own home by an  enrolled  legally-exempt  provider  as  such  term  is  defined   in subdivision  one-a  of section three hundred ninety-b of this chapter is the confirmed subject of an indicated child abuse report  maintained  by the  statewide  central  register  of  child abuse and maltreatment. The office shall promulgate regulations related  to  the  process  by  which providers  and  applicants  will  be  informed  whether the applicant is authorized or unauthorized to care for children based on the outcome  of such inquiry.  (iv) A licensing agency conducting inquiries pursuant to subparagraphs (ii)  and  (iii) of this paragraph may inquire of the office whether any person who is to be hired as a consultant by such  agency  who  has  the potential  for  regular and substantial contact with individuals who are cared for by the agency is the subject of an indicated child  abuse  and maltreatment report on file with the statewide central register of child abuse  and maltreatment. The office shall promulgate regulations related to the process by  which  providers  and  applicants  will  be  informed whether the applicant is authorized or unauthorized to care for children based on the outcome of such inquiry.  (v)  A licensing agency conducting inquiries pursuant to subparagraphs (ii) and (iii) or this paragraph may inquire of the office  whether  any person  who  has  volunteered his or her services to such agency and who will have  the  potential  for  regular  and  substantial  contact  with individuals  who  are  cared  for  by  the  agency, is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child  abuse  and  maltreatment.  The  office  shall  promulgate  regulations  related  to  the process by which providers and applicants will be informed  whether  the  applicant  is  authorized  or unauthorized to care for children based on the outcome of such inquiry.  (b)  (i)  (A)  Subject  to the provisions of subdivision seven of this section, a provider agency shall inquire of the office  and  the  office shall,  subject  to the provisions of paragraph (e) of this subdivision, inform such agency and the subject of the inquiry whether any person who is actively being considered  for  employment  and  who  will  have  the potential  for  regular and substantial contact with individuals who are cared for by the agency, is the subject of an indicated child abuse  and maltreatment report on file with the statewide central register of child abuse   and  maltreatment  prior  to  permitting  such  person  to  have unsupervised contact with such individuals. Such agency may  inquire  of the  office  and  the office shall inform such agency and the subject of the inquiry whether any person who is currently employed and who has the potential for regular and substantial contact with individuals  who  are cared  for by such agency is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment. A provider agency  shall  also  inquire  of  the office  and  the  office shall inform such agency and the subject of the inquiry  whether  any  person  who  is  employed   by   an   individual, corporation, partnership or association which provides goods or services to such agency who has the potential for regular and substantial contact with  individuals  who are cared for by the agency, is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and  maltreatment  prior  to  permitting such   person  to  have  unsupervised  contact  with  such  individuals. Inquiries made to the office pursuant to this subparagraph by a provider agency on current employees shall be made no more often than once in any six month period.  (B)  Notwithstanding  clause  (A)  of  this  subparagraph,  where  the provider  agency  is  an  authorized  agency that operates a residential program for foster children that is licensed or certified by the  office of  children and family services such agency shall inquire of the office and the office shall, subject to the provisions of paragraph (e) of this subdivision, inform such agency and the subject of the inquiry whether:  (I) any person who is actively being considered for employment in such program who is not already required to be cleared pursuant to clause (A) of this subparagraph is the subject of  an  indicated  child  abuse  and maltreatment report on file with the statewide central register of child abuse and maltreatment; and  (II) Notwithstanding any other provision of law to the contrary, prior to  April  first,  two thousand twenty and in accordance with a schedule developed by the office of children and  family  services,  whether  any person who is employed in a residential foster care program that has not previously  had  a  clearance conducted pursuant to this subparagraph in connection to such employment is the subject of an indicated child abuse and maltreatment report on file with the statewide central  register  of child abuse and maltreatment.  (ii) A provider agency may inquire of the office and the office shall, upon  receipt of such inquiry and subject to the provisions of paragraph (e) of this subdivision, inform such  agency  and  the  subject  of  the inquiry  whether  any  person who is to be hired as a consultant by such agency who has the potential for regular and  substantial  contact  with individuals  who  are  cared  for  by  the  agency  is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment.  (iii) A provider agency may inquire  of  the  office  and  the  office shall,  upon  receipt  of  such inquiry and subject to the provisions of paragraph (e) of this subdivision, inform such agency and the subject of the inquiry whether any person who has volunteered his or  her  services to  such  agency  and  who  will  have  the  potential  for  regular and substantial contact with individuals who are cared for by the agency, is the subject of an indicated child abuse and maltreatment report on  file with the statewide central register of child abuse and maltreatment.  (iv)  The  office  shall  promulgate  regulations which effectuate the provisions of this paragraph.  (c) An authorized agency shall  inquire  of  the  department  and  the department  shall  inform  such  agency  and the subject of the inquiry, whether any person who has applied to adopt a child is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment.  (d)  Any  person  who  has  applied  to  a  licensing  agency  for   a certificate, license or permit or who has applied to be an employee of a provider  agency  or  who has applied to an authorized agency to adopt a child, or who may be hired as a consultant or used as a volunteer  by  a provider  agency  and  any other person about whom an inquiry is made to the department pursuant to the  provisions  of  this  section  shall  be notified  by such agency at the time of application or prior to the time that a person may be hired as a consultant or used as a  volunteer  that the  agency will or may inquire of the department whether such person is the subject of an indicated child abuse  and  maltreatment  report.  All employees of a provider agency shall be notified by their employers that an inquiry may be made to the department pursuant to this section and no such  inquiry shall be made regarding any employee until such notice has been made.  (d-1) A law enforcement  agency  pursuant  to  section  eight  hundred thirty-seven-k  of  the  executive law may inquire of the department and the department may inform such agency and the subject  of  the  inquiry, whether  any person who has applied for a symbol provided for in section eight hundred thirty-seven-k of the executive law or persons residing or regularly visiting said location are the subject of an  indicated  child abuse  and  maltreatment  report  on  file  with  the  statewide central register of child abuse and maltreatment.   * (e) (i) Subject to the  provisions  of  subparagraph  (ii)  of  this paragraph, the department shall inform the provider or licensing agency, or child care resource and referral programs pursuant to subdivision six of this section whether or not the person is the subject of an indicated child  abuse  and  maltreatment  report  only  if:  (a) the time for the subject of the report to request an  amendment  of  the  record  of  the report  pursuant to subdivision eight of section four hundred twenty-two has expired without any such request  having  been  made;  or  (b)  such request  was  made  within  such  time  and a fair hearing regarding the request has been finally determined by the commissioner and  the  record of  the  report has not been amended to unfound the report or delete the person as a subject of the report.  (ii) If  the  subject  of  an  indicated  report  of  child  abuse  or maltreatment  has not requested an amendment of the record of the report within the time specified in subdivision eight of section  four  hundred twenty-two  of  this title or if the subject had a fair hearing pursuant to such section prior to January first, nineteen hundred eighty-six  and an  inquiry  is  made  to  the  department  pursuant to this subdivision concerning  the  subject  of  the  report,  the  department  shall,   as expeditiously  as  possible  but within no more than ten working days of receipt of the inquiry, determine whether, in  fact,  the  person  about  whom  an  inquiry  is  made  is the subject of an indicated report. Upon making a determination that the person about whom the inquiry is made is the subject of an indicated report of child abuse and maltreatment,  the department  shall  immediately  send  a  written  request  to  the child protective  service  or  state  agency   which   was   responsible   for investigating  the allegations of abuse or maltreatment for all records, reports and other information maintained by the service or state  agency on  the  subject. The service or state agency shall, as expeditiously as possible but within no more than twenty working days of  receiving  such request, forward all records, reports and other information it maintains on  the indicated report to the department. The department shall, within fifteen working days  of  receiving  such  records,  reports  and  other information  from  the  child protective service or state agency, review all records, reports and other information in its possession  concerning the  subject  and  determine  whether there is some credible evidence to find that the subject had committed the act or acts of  child  abuse  or maltreatment giving rise to the indicated report.  (iii)  If  it  is  determined,  after  affording such service or state agency a reasonable opportunity to present its views, that there  is  no credible  evidence in the record to find that the subject committed such act or acts, the department shall amend the record to indicate that  the report  was  unfounded  and  notify  the inquiring party that the person about whom the inquiry is made  is  not  the  subject  of  an  indicated report.  If  the  subject  of  the report had a fair hearing pursuant to subdivision eight of section four hundred twenty-two of this title prior to January first, nineteen hundred eighty-six and the fair  hearing  had been finally determined by the commissioner and the record of the report had  not  been  amended  to unfound the report or delete the person as a subject of the report, then the department shall determine that there is some credible evidence to find that the subject had committed the act or acts of child abuse or maltreatment giving rise to the indicated report.  (iv) If it is determined after a review by the office of all  records, reports  and information in its possession concerning the subject of the report that there is a preponderance of the evidence to  find  that  the subject  committed the act or acts of child abuse or maltreatment giving rise to the indicated report, the office shall  also  determine  whether such  act  or  acts  are  relevant  and  reasonably  related  to  issues concerning the employment of the subject by a  provider  agency  or  the subject  being  allowed  to  have  regular  and substantial contact with individuals  cared  for  by  a  provider  agency  or  the  approval   or disapproval of an application which has been submitted by the subject to a   licensing   agency,   based  on  guidelines  developed  pursuant  to subdivision five of this section. If it is determined that such  act  or acts  are  not  relevant and related to such issues, the office shall be precluded from informing the provider or licensing agency which made the inquiry to the office pursuant to this section  that  the  person  about whom  the inquiry is made is the subject of an indicated report of child abuse or maltreatment.  (v) If it is determined after  a  review  by  the  department  of  all records,  reports  and  information  in  its  possession  concerning the subject of the report that there is some credible evidence to prove that the subject committed the act or acts of abuse  or  maltreatment  giving rise  to the indicated report and that such act or acts are relevant and reasonably related to issues concerning the employment of the subject by a provider agency or to the subject being allowed to  have  regular  and substantial  contact with children cared for by a provider agency or the approval or disapproval of an application which has  been  submitted  by the  subject  to  a  licensing  agency,  the department shall inform the  inquiring party that the person about whom the inquiry is  made  is  the subject  of  an  indicated  report  of child abuse and maltreatment; the department shall also notify the subject of the inquiry of  his  or  her fair hearing rights granted pursuant to paragraph (c) of subdivision two of this section.   * NB Effective until January 1, 2022   * (e)  (i)  Subject  to  the  provisions  of subparagraph (ii) of this paragraph, the office of children and family services shall  inform  the provider  or  licensing  agency,  or  child  care  resource and referral programs pursuant to subdivision six of this section whether or not  the person  is  the  subject  of  an  indicated child abuse and maltreatment report only if:  (A) (I) the time for the subject of the report to request an amendment of the record of the report pursuant to  subdivision  eight  of  section four hundred twenty-two has expired without any such request having been made; or  (II)  such  request  was  made  within  such  time  and a fair hearing regarding the request has been finally determined  by  the  commissioner and  the record of the report has not been amended to unfound the report or delete the person as a subject of the report; and  (B) (I) the person is the subject of  an  indicated  report  of  child abuse; or  (II)  the  person  is  not the subject of an indicated report of child abuse and is the subject of a report of  child  maltreatment  where  the indication  for child maltreatment occurred within less than eight years from the date of the inquiry.  (ii) If  the  subject  of  an  indicated  report  of  child  abuse  or maltreatment  has not requested an amendment of the record of the report and an inquiry is made to the office of  children  and  family  services pursuant  to this subdivision concerning the subject of the report, such office shall, as expeditiously as possible but within no more  than  ten working  days of receipt of the inquiry, determine whether, in fact, the person about whom an inquiry is made is  the  subject  of  an  indicated report.  Upon  making  a  determination  that  the person about whom the inquiry is made is the subject of an indicated report of child abuse and maltreatment,  the  office  of  children  and  family   services   shall immediately  send  a  written request to the child protective service or state agency which was responsible for investigating the allegations  of abuse  or  maltreatment  for  all records, reports and other information maintained by the service or state agency on the subject. The service or state agency shall, as expeditiously as possible but within no more than twenty working days of receiving  such  request,  forward  all  records, reports  and  other  information it maintains on the indicated report to the office of children and family services,  including  a  copy  of  any petition  or  court  order based on the allegations that were indicated. Where a proceeding pursuant to article ten of the family  court  act  is pending based on the same allegations that were indicated, the office of children  and  family services shall stay determination of whether there is a fair preponderance of the evidence to support the indication  until the   disposition   of   such   family  court  proceeding.  Unless  such determination has  been  stayed,  the  office  of  children  and  family services  shall,  within fifteen working days of receiving such records, reports and other information from the child protective service or state agency, review  all  records,  reports  and  other  information  in  its possession  concerning the subject and determine whether there is a fair preponderance of the evidence to find that the subject had committed the act or acts of child abuse or maltreatment giving rise to the  indicated report.  (iii)  If  it  is  determined,  after  affording such service or state agency a reasonable opportunity to present its views, that there is  not a  fair  preponderance  of  the  evidence in the record to find that the subject committed such act or acts, the office of  children  and  family services  shall  amend  the  record  to  indicate  that  the  report was unfounded and notify the inquiring party that the person about whom  the inquiry is made is not the subject of an indicated report.  (iv)  (A)  If  it  is  determined  after a review by the office of all records, reports  and  information  in  its  possession  concerning  the subject  of  the report that there is a preponderance of the evidence to find that the subject committed the  act  or  acts  of  child  abuse  or maltreatment  giving rise to the indicated report, the office shall also determine whether such act or acts are relevant and  reasonably  related to  issues concerning the employment of the subject by a provider agency or the subject being allowed to have  regular  and  substantial  contact with  individuals  cared  for  by  a  provider agency or the approval or disapproval of an application which has been submitted by the subject to a  licensing  agency,  based  on  guidelines   developed   pursuant   to subdivision  five  of this section. If it is determined that such act or acts are not relevant and related to such issues, the  office  shall  be precluded from informing the provider or licensing agency which made the inquiry  to  the  office  pursuant to this section that the person about whom the inquiry is made is the subject of an indicated report of  child abuse or maltreatment.  (B)  Where  the  subject  of  the  report  is  not  the subject of any indicated report of child abuse and is the subject of a report of  child maltreatment  where  the indication for child maltreatment occurred more than eight years prior to the date of the inquiry, any  such  indication of  child maltreatment shall be deemed to be not relevant and reasonably related to employment.  (v) If it is determined after a review by the office of  children  and family   services  of  all  records,  reports  and  information  in  its possession concerning the subject of the report that  there  is  a  fair preponderance  of  the  evidence to prove that the subject committed the act or acts of abuse or maltreatment giving rise to the indicated report the office of children and family services shall notify the  subject  of the determination of such report and of the subject's right to request a fair  hearing.  If  the  subject  shall request a hearing, the office of children and family services shall schedule a  fair  hearing  and  shall provide  notice  of  the  scheduled  hearing  date  to  the subject, the statewide central register and, as appropriate, to the child  protective service which investigated such report.  (vi)  The  burden  of  proof  in  such a hearing shall be on the child protective service which investigated the report.  In  such  a  hearing, where  a  family  court proceeding pursuant to article ten of the family court act has occurred  and  where  the  petition  for  such  proceeding alleges  that  a  respondent  in  that  proceeding  committed  abuse  or maltreatment against the  subject  child  in  regard  to  an  allegation contained  in a report indicated pursuant to this section: (A) where the court finds that such respondent did commit abuse or maltreatment  there shall  be an irrebuttable presumption in a fair hearing held pursuant to this subdivision  that  said  allegation  is  substantiated  by  a  fair preponderance  of the evidence as to that respondent on that allegation; and (B) where such child protective service withdraws such petition with prejudice, where the family court dismisses such petition, or where  the family court finds on the merits in favor of the respondent, there shall be  an  irrebuttable presumption in a fair hearing held pursuant to this  subdivision that said allegation as to  that  respondent  has  not  been proven by a fair preponderance of the evidence.  (vii)  If  it shall be determined at the fair hearing that there is no fair preponderance of the evidence  in  the  record  to  find  that  the subject  committed  an  act  or acts of child abuse or maltreatment, the office of children and family services shall amend the record as to that respondent on that allegation to reflect that such a finding was made at the administrative hearing, order any  child  protective  service  which investigated  the  report  as  to that respondent to similarly amend its records of such report, notify the subject  of  the  determination,  and notify  the  inquiring party that the person about whom such inquiry was made is not the subject of an indicated report on that allegation.  (viii) Upon a determination at the fair hearing that the  subject  has been  shown,  by  a fair preponderance of the evidence to have committed the act or acts of child  abuse  or  maltreatment  giving  rise  to  the indicated   report,  the  hearing  officer  shall  determine,  based  on guidelines developed by the  office  of  children  and  family  services pursuant  to  subdivision five of this section, whether such act or acts are relevant and reasonably related to the subject being allowed to have regular and substantial contact with children who are  cared  for  by  a provider  agency  as  defined  in  subdivision three of this section, or relevant and reasonably related to the approval  or  disapproval  of  an application submitted by the subject to a licensing agency as defined in subdivision four of this section.  (ix)  Upon a determination made at a fair hearing that the act or acts of abuse or maltreatment are relevant  and  reasonably  related  to  the employment of the subject by a provider agency as defined in subdivision three  of  this  section,  the subject being allowed to have regular and substantial contact with children who are cared for by a provider agency as defined in  subdivision  three  of  this  section,  or  relevant  and reasonably  related  to  the  approval  or disapproval of an application submitted by the subject to a licensing agency as defined in subdivision four of this section, the office of children and family  services  shall notify  the subject and shall inform the inquiring party that the person about whom such inquiry was made is the subject of an  indicated  report of child abuse or maltreatment.  (x)  The failure to determine at the fair hearing that the act or acts of abuse or maltreatment are relevant  and  reasonably  related  to  the employment of the subject by a provider agency as defined in subdivision three  of  this  section,  the subject being allowed to have regular and substantial contact with children who are cared for by a provider agency as defined in  subdivision  three  of  this  section,  or  relevant  and reasonably  related  to  the  approval  or disapproval of an application submitted by the subject to a licensing agency as defined in subdivision four of this section, shall preclude the office of children  and  family services  from  informing  a  provider  agency as defined in subdivision three of this section or licensing agency as defined in subdivision four of this section that such person is the subject of an  indicated  report of child abuse or maltreatment on that allegation.   * NB Effective January 1, 2022  (f)  The  office of children and family services shall charge a fee of twenty-five dollars when it conducts a search of its records within  the statewide central register for child abuse or maltreatment in accordance with  this  section or regulations of the office to determine whether an applicant for employment is the subject of an indicated child  abuse  or maltreatment  report  including  an  applicant  to  be  a child day care provider and a request made pursuant to subdivision six of this section. Such fees shall be deposited in a special revenue -  other  account  and  shall  be  made  available  to  the  office  for  costs  incurred in the implementation of this section.  (g)  The  office  shall  determine  actions  necessary  to  develop an automated search, available for the use of the office, of records at the statewide central registry of child abuse and maltreatment.   2. (a) Upon notification by the office or by a child care resource and referral program in accordance with subdivision six of this section that any person who  has  applied  to  a  licensing  agency  for  a  license, certificate  or  permit or who seeks to become an employee of a provider agency, or to accept a child for adoptive placement or who will be hired as a consultant or used as a volunteer by a provider agency, or that any other person about whom an inquiry is made to the office pursuant to the provisions of this section is the subject of an  indicated  report,  the licensing or provider agency shall determine on the basis of information it  has  available  whether  to  approve  such application or retain the employee or hire the consultant  or  use  the  volunteer  or  permit  an employee  of  another person, corporation, partnership or association to have access to  the  individuals  cared  for  by  the  provider  agency, provided,  however,  that  if  such  application  is  approved,  or such employee is retained or consultant hired or  volunteer  used  or  person permitted  to  have  access to the children cared for by such agency the licensing or provider agency shall maintain a written record, as part of the application file or employment record, of the specific  reasons  why such person was determined to be appropriate to receive a foster care or adoption  placement  or to provide day care services, to be the director of a camp subject to the provisions of article thirteen-B of the  public health  law,  to  be approved as a successor guardian in accordance with subparagraph (ii) of paragraph (b) of subdivision five of  section  four hundred fifty-eight-b of this article, to be employed, to be retained as an employee, to be hired as a consultant, used as a volunteer or to have access to the individuals cared for by the agency.  (b)  (i)  Upon denial of such application by a licensing or a provider agency or failure to hire the consultant or use the volunteer, or denial of access by a person to the  children  cared  for  by  the  agency,  or failure  to approve a successor guardian in accordance with subparagraph (ii) of paragraph (b)  of  subdivision  five  of  section  four  hundred fifty-eight-b  of this article, such agency shall furnish the applicant, prospective consultant, volunteer or person who is denied access to  the children  cared for by the agency with a written statement setting forth whether its denial, failure to hire or failure  to  use  was  based,  in whole  or  in part, on such indicated report, and if so, its reasons for the denial or failure to hire or failure to use.  (ii) Upon the termination of employment of an employee of  a  provider agency,  who  is  the  subject  of an indicated report of child abuse or maltreatment on file with the statewide central register of child  abuse and  maltreatment,  the agency shall furnish the employee with a written statement setting forth whether such termination was based, in whole  or in  part,  on  such  indicated  report  and,  if so, the reasons for the termination of employment.  (c) If the reasons for such denial or termination or failure to hire a consultant or use a volunteer or failure to approve a successor guardian in accordance with subparagraph (ii) of  paragraph  (b)  of  subdivision five  of  section four hundred fifty-eight-b of this article include the fact that the person is the subject  of  an  indicated  child  abuse  or maltreatment  report, such person may request from the department within ninety days of receipt of notice of such denial, termination, failure to hire a consultant or use a volunteer and shall be granted a  hearing  in accordance  with  the procedures set forth in section twenty-two of this  chapter relating to fair hearings. All hearings  held  pursuant  to  the provisions  of  this  subdivision  shall be held within thirty days of a request for the hearing unless the hearing is adjourned for  good  cause shown.  Any subsequent adjournment for good cause shown shall be granted only upon consent of the person who requested the hearing.  The  hearing decision  shall  be  rendered  not  later  than  sixty  days  after  the conclusion of the hearing.  (d) At any such hearing, the sole question before the department shall be whether the applicant, employee, prospective  consultant,  volunteer, prospective  successor  guardian  or person who was denied access to the children cared for by a  provider  agency  has  been  shown  by  a  fair preponderance of the evidence to have committed the act or acts of child abuse  or  maltreatment  giving  rise  to  the indicated report. In such hearing, the burden of proof on the issue of whether  an  act  of  child abuse  or  maltreatment  was  committed  shall  be  upon the local child protective service or the state agency which investigated the report, as the case may be. The failure to sustain the burden of proof at a hearing held pursuant to this section shall not result  in  the  expungement  or unfounding  of  an  indicated  report  but  shall be noted on the report maintained  by  the  state  central  register  and  shall  preclude  the department from notifying a party which subsequently makes an inquiry to the  department  pursuant to this section that the person about whom the inquiry is made is the subject of an indicated report.  (e) Upon the failure, at  the  fair  hearing  held  pursuant  to  this section,  to  prove  by  a  fair  preponderance of the evidence that the applicant committed the act or  acts  of  child  abuse  or  maltreatment giving  rise  to  the  indicated report, the department shall notify the provider or licensing agency which made the  inquiry  pursuant  to  this section that it should reconsider any decision to discharge an employee, or  to  deny  the  subject's application for employment, or to become an adoptive  parent,  or  to  become  a  successor  guardian,  or   for   a certificate,  license  or  permit;  or  not  to hire a consultant, use a volunteer, or allow access to children cared for by the agency.   3. For purposes of this section,  the  term  "provider"  or  "provider agency"  shall  mean:  an  authorized agency; the office of children and family  services;  juvenile  detention   facilities   subject   to   the certification  of  the  office of children and family services; programs established  pursuant  to  article  nineteen-H  of  the  executive  law; non-residential  or  residential  programs  or  facilities  licensed  or operated by the office of mental health or the office  for  people  with developmental  disabilities  except  family  care  homes; including head start programs which are funded pursuant  to  title  V  of  the  federal economic  opportunity  act  of  nineteen hundred sixty-four, as amended; early intervention service established pursuant to  section  twenty-five hundred  forty  of the public health law; preschool services established pursuant to section forty-four hundred ten of the education law; special act school districts as enumerated in chapter five hundred sixty-six  of the  laws  of  nineteen  hundred  sixty-seven,  as amended; programs and facilities licensed by the office  of  alcoholism  and  substance  abuse services; residential schools which are operated, supervised or approved by  the education department; health homes, or any subcontractor of such health homes, who contracts with or is approved or otherwise  authorized by the department of health 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  and  enrollees  who are under twenty-one years of age under section three hundred sixty-five-l of this chapter, 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; publicly-funded emergency shelters for families with children,  provided,  however,  for purposes  of  this  section,  when  the provider or provider agency is a publicly-funded emergency shelter for families with children,  then  all references in this section to the "potential for regular and substantial contact with individuals who are cared for by the agency" shall mean the potential  for  regular  and  substantial  contact with children who are served by such shelter; and any other facility or  provider  agency,  as defined in subdivision four of section four hundred eighty-eight of this chapter,  in  regard  to the employment of staff, or use of providers of goods and services and staff of such providers, consultants, interns and volunteers.   4. For purposes of this section, the  term  "licensing  agency"  shall mean an authorized agency which has received an application to become an adoptive   parent   or  an  authorized  agency  which  has  received  an application for a certificate or license to receive, board or  keep  any child pursuant to the provisions of section three hundred seventy-six or three  hundred  seventy-seven  of  this  article or an authorized agency which has received an application from  a  relative  within  the  second degree  or  third  degree of consanguinity of the parent of a child or a relative within the second degree or third degree  of  consanguinity  of the  step-parent  of  a child or children, or the child's legal guardian for approval to receive, board or keep  such  child,  or  an  authorized agency   that   conducts  a  clearance  pursuant  to  paragraph  (d)  of subdivision two of section four hundred fifty-eight-b of  this  article, or a state or local governmental agency which receives an application to provide  child  day care services in a child day care center, school-age child care program, family day care home or group family day  care  home or   enrolled  legally-exempt  provider  as  such  term  is  defined  in subdivision one-a of section three  hundred  ninety-b  of  this  article pursuant  to  the  provisions  of  section  three hundred ninety of this article, or the department of health and mental hygiene of the  city  of New York, when such department receives an application for a certificate of  approval  to  provide  child  day  care services in a child day care center pursuant to the provisions of the health code of the city of  New York,  or  the  office  of  mental  health or the office for people with developmental disabilities when such office receives an application  for an  operating  certificate  pursuant  to  the  provisions  of the mental hygiene law to  operate  a  family  care  home,  or  a  state  or  local governmental  official  who  receives  an  application  for  a permit to operate a camp which is subject to the provisions of article  thirteen-B of  the  public health law or the office of children and family services which has received an application for a certificate to receive, board or keep any child at a foster family home pursuant to  articles  nineteen-G and  nineteen-H  of  the executive law or any other facility or provider agency,  as  defined  in  subdivision  four  of  section  four   hundred eighty-eight   of   this   chapter,   in  regard  to  any  licensing  or certification function carried out by such facility or agency.   5. (a) The office of children and family services, after  consultation with the justice center for the protection of people with special needs, the  office  of  mental health, the office for people with developmental disabilities, the office of alcoholism and substance abuse services, the department of health, and the state education department  shall  develop guidelines   to  be  utilized  by  a  provider  agency,  as  defined  by subdivision three of this section, and a licensing agency, as defined by subdivision four of this  section,  in  evaluating  persons  about  whom inquiries  are  made  to the office pursuant to this section who are the  subjects of indicated  reports  of  child  abuse  and  maltreatment,  as defined  by  subdivision  four  of  section  four hundred twelve of this chapter.  (b)  The  guidelines  developed  pursuant  to  subdivision one of this section shall  not  supersede  similar  guidelines  developed  by  local governmental   agencies   prior   to  January  first,  nineteen  hundred eighty-six.   6.  A  child  care  resource  and  referral  program  as  defined   in subdivision  two  of  section  four  hundred  ten-p  of this article may inquire of the office of children and family  services  and  the  office shall,  upon  receipt  of  such inquiry and subject to the provisions of paragraph (e) of subdivision one of this section,  inform  such  program and the subject of such inquiry whether any person who has requested and agreed  to be included in a list of substitute child day care caregivers for employment by registered or licensed day care  providers  maintained by  such  program  in  accordance  with  regulations  promulgated by the office, is the subject of an  indicated  child  abuse  and  maltreatment report  on  file  with the statewide central register of child abuse and maltreatment. Inquiries made to the office by such programs pursuant  to this  subdivision shall be made no more often than once in any six month period and  no  less  often  than  once  in  any  twelve  month  period. Notwithstanding  any  provision  of  law  to  the contrary, a child care resource and referral program may redisclose such  information  only  if the  purpose  of  such  redisclosure is to respond to a request for such information by a registered or licensed provider and only  if  after  an individual  included in the list of substitute child day care caregivers for  employment  by  registered  or  licensed  day  care  providers  has consented  to  be referred for employment to such inquiring agency. Upon such referral, the provisions related to notice and fair hearing  rights of  this  section shall otherwise apply. Inquiries made pursuant to this subdivision shall be in lieu of the inquiry requirements  set  forth  in paragraph (b) of subdivision one of this section.   7.  Any  facility,  provider  agency,  or  program that is required to conduct an inquiry pursuant to section four hundred ninety-five of  this chapter  shall first conduct the inquiry required under such section. If the result of the inquiry under section four hundred ninety-five of this chapter is that the person about whom the inquiry  is  made  is  on  the register of substantiated category one cases of abuse or neglect and the facility  or  provider  agency  is  required  to deny the application in accordance with article eleven of this chapter, the facility or provider agency shall not be required to make an inquiry of the office under this section.