New York Codes, Rules and Regulations › Title 18 - DEPARTMENT OF SOCIAL SERVICES › Chapter II - Regulations of the Department of Social Services › Subchapter C - Social Services › Article 2 - Family and Children's Services › Part 413 - Child Day Care Definitions, Enforcement and Hearings › Section 413.7 - Criminal History Disqualification Review Process

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Any person who the Office determines,
			 pursuant to Section (4) of this Part, should be denied employment or a
			 volunteer position at a child day care program based on an offense not listed
			 in paragraph (1) of subdivision (e) of section (4) of this Part and to which
			 Article 23-A of the Correction Law is applicable, shall have the ability to
			 request a de novo review of the determination, to be held and completed before
			 the employer is notified of such determination. Such person shall have
			 reasonable notice concerning the determination, information regarding how to
			 request a review of that determination, and an opportunity to provide any
			 additional information that such person deems relevant to such determination.
			 Such person may choose whether the review will be conducted either through the
			 submission of written materials to a hearing officer or, to be heard in person
			 in an administrative hearing before a hearing officer, or by video conference
			 in an administrative hearing before a hearing officer if reasonably available.
			 Regardless of the method in which the review is conducted, where such request
			 is made, the Office shall also have an opportunity to be heard.
(b) A review pursuant to this section must be
			 requested within thirty days of receipt of the letter notifying the applicant
			 he or she is ineligible for employment or a volunteer position at a child day
			 care program and that they have a right for review.
(c) The pleadings in a review pursuant to
			 this section will consist of the notice of review and any additional
			 information submitted by either party as being relevant to the
			 determination.
(d) Neither formal
			 discovery procedures nor formal procedures for bills of particulars will
			 apply.
(e) Disclosure of evidence
			 by deposition will not be permitted.
(f) The review will be conducted by a hearing
			 officer who is an attorney employed by the Office for that purpose and who has
			 not been involved in any way with the matter. He or she will have all the
			 powers conferred by law and regulations of the Office to administer oaths,
			 issue subpoenas, require the production of records and the attendance of
			 witnesses, rule upon requests for adjournment, rule upon objections to the
			 introduction of evidence, and to otherwise regulate the review, preserve
			 requirements of due process, and effectuate the purpose and provisions of
			 applicable law and regulations.
(g)
			 The rules of evidence as applied in a court of law will not apply, except that
			 privileges recognized by law will be given effect. The hearing officer may
			 exclude evidence that is irrelevant or unduly repetitious. The burden of proof
			 at such reviews shall be on the applicant to show that the denial is not
			 supported by substantial evidence and that such person should not have been
			 denied employment and/or the ability to volunteer at a child day care
			 program.
(h) The review may be
			 adjourned only for good cause by the hearing officer on his or her own
			 application or at the request of either party.
(i) An individual, other than an attorney,
			 representing the applicant must have an appropriate written authorization for
			 representation signed by the applicant.
(j) Review
(1) Through submission of written materials
(i) A review through submission of written
			 materials must be scheduled within a reasonable time period of the
			 request.
(ii) Where an applicant
			 for employment or a volunteer position at a child day care program timely
			 requests a review pursuant to this section and requests that the review be
			 conducted through the submission of written materials to a hearing officer, a
			 notice must be sent to the applicant and the Office, and must specify:
(a) the date and location of where such
			 materials must be submitted to the hearing officer and opposing
			 party;
(b) the manner in which the
			 review will be conducted;
(c) the
			 offense(s) which are the basis for the denial, including the
			 statute(s);
(d) that he or she has
			 the opportunity to submit written materials, including evidence of
			 rehabilitation;
(e) that he or she
			 has the right to be represented by an attorney or other representative of his
			 or her choice; and
(f) that he or
			 she has the right to examine any document or item submitted.
(iii) The applicant will be
			 entitled to present relevant and material evidence on his or her behalf, be
			 represented by an attorney or other representative of his or her choice, and
			 examine any document or item submitted.
(iv) The Office will be entitled to submit
			 proof of the conviction(s), the safety assessment, and review of the factors
			 enumerated in Article 23-A of the Correction Law. The hearing officer will
			 accept the information provided to the Office by the Division of Criminal
			 Justice Services as proof of the criminal convictions.
(v) The record of a review on written
			 materials will include:
(a) all
			 pleadings;
(b) all written
			 materials submitted;
(c) any
			 matters officially noticed;
(d) all
			 proposed findings and exceptions;
(e) any report rendered by the hearing
			 officer; and
(f) any request for
			 disqualification of a hearing officer.