2023 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.