N.Y. Soc. Serv. Law § 390-b

§ 390-b. Criminal history review and background clearances of child\ncare providers, generally.\n 1. Notwithstanding any other provision of law to the contrary, and\nsubject to rules and regulations of the office of children and family\nservices and, where applicable, the division of criminal justice\nservices, the following clearances shall be conducted for entities\nspecified in subdivision two of this section in the time and manner as\nrequired by this section:\n (a) a criminal history record check with the division of criminal\njustice services;\n (b) a search of the criminal history repository in each state other\nthan New York where such person resides or resided during the preceding\nfive years, if applicable unless such state's criminal history record\ninformation will be provided as part of the results or the clearance\nconducted pursuant to paragraph (c) of this subdivision;\n (c) a national criminal record check with the federal bureau of\ninvestigation; the division of criminal justice services is directed to\nsubmit fingerprints to the federal bureau of investigation for the\npurpose of a nationwide criminal history record check, pursuant to and\nconsistent with public law 113-186 to determine whether such persons\nshall have a criminal history in any state or federal jurisdiction;\n (d) a search of the New York state sex offender registry;\n (e) a search of any state sex offender registry or repository in each\nstate other than New York where such person resides or resided during\nthe preceding five years, if applicable unless such state's sex offender\nregistry information will be provided as part of the clearance conducted\npursuant to paragraph (f) of this subdivision;\n (f) a search of the national sex offender registry using the national\ncrime and information center, established under the Adam Walsh child\nprotection and safety act of 2006 (42 U.S.C. 16901 et seq.);\n (g) a database check of the statewide central register of child abuse\nand maltreatment in accordance with section four hundred twenty-four-a\nof this article; and\n (h) a search of a state-based child abuse or neglect repository of any\nstate other than New York where such person resides or resided during\nthe preceding five years; if applicable.\n 1-a. For purposes of this section, and in accordance with federal law,\nthe term "enrolled legally-exempt provider" shall refer to a person who\nmeets the definition of "enrolled legally-exempt provider" as defined in\nparagraph (g) of subdivision one of section three hundred ninety of this\ntitle and who is not an individual who is related to all children for\nwhom child care services are provided.\n 2. In relation to any child day care program and any enrolled\nlegally-exempt provider:\n (a) the clearances required pursuant to paragraphs (a), (c), (d) and\n(g) of subdivision one of this section shall be conducted for:\n (i) every prospective volunteer with the potential for unsupervised\ncontact with children in care;\n (ii) every applicant to become an enrolled legally-exempt provider;\n (iii) every prospective employee, director or operator of such a\nprogram or provider; and\n (iv) every individual eighteen years of age and over residing or who\nbegins to reside in a home where services are or will be provided in a\nfamily or group family setting; and\n (v) every individual eighteen years of age and over residing or who\nbegins to reside in a home where services are or will be provided who\nare not related in any way to all children receiving services as or will\nbe provided by an enrolled legally exempt provider;\n (b) notwithstanding any other provision of law to the contrary, prior\nto October first, two thousand twenty, all clearances listed in\nsubdivision one of this section that have not previously been conducted\npursuant to paragraph (a) of this subdivision and for which on-going\ncriminal history results are not already provided, shall be conducted in\naccordance with a schedule developed by the office of children and\nfamily services, for all:\n (i) existing volunteers with the potential for unsupervised contact\nwith children in care;\n (ii) existing caregivers for an enrolled legally exempt provider;\n (iii) existing employees, directors and operators of any such program\nor provider; and\n (iv) every individual eighteen years of age and over residing or who\nbegins to reside in a home where services are or will be provided in a\nfamily or group family setting; and\n (v) every individual eighteen years of age and over residing or who\nbegins to reside in a home where services are or will be provided who\nare not related in any way to all children receiving services as or will\nbe provided by an enrolled legally exempt provider;\n (c) notwithstanding any other provision of law to the contrary, the\nclearances required pursuant to this section other than those for which\non-going criminal history results are provided, shall be conducted for a\nperson listed in subparagraphs (i), (ii), (iii) and (iv) of paragraph\n(b) of this subdivision at least once every five years in accordance\nwith a schedule developed by the office of children and family services.\n 3. (a) Notwithstanding any other provision of law to the contrary, in\nrelation to the clearances required pursuant to this section, an\nindividual or a program or provider shall be deemed ineligible, as such\nterm is defined in paragraph (b) of this subdivision, if such\nindividual:\n (i) refuses to consent to such clearance;\n (ii) knowingly makes a materially false statement in connection with\nsuch a clearance;\n (iii) is registered, or is required to be registered, on a state sex\noffender registry or repository or the national sex offender registry\nestablished under the Adam Walsh child protection and safety act of 2006\n(42 U.S.C. 16901 et seq.); or\n (iv) has been convicted of a crime enumerated in subparagraph (E) or\nclauses (i) through (viii) of subparagraph (D) of paragraph (1) of\nsubdivision (C) of 42 U.S.C. 9858f.\n (b) For purpose of this subdivision, the term "ineligible" shall mean:\n (i) the individual who engaged in conduct listed in paragraph (a) of\nthis subdivision shall not be permitted to:\n (1) operate, direct, be the caregiver for, or be employed by a child\nday care program or an enrolled legally-exempt provider; or\n (2) be a volunteer with the potential for unsupervised contact with\nchildren in a child day care program or with an enrolled legally-exempt\nprovider; or\n (3) be an enrolled legally exempt provider; or\n (ii) in relation to child day care programs or any enrolled\nlegally-exempt providers, where child care is, or is proposed to be\nprovided, to a child in a home setting where such child does not reside,\nsuch program or provider shall not be eligible to operate or to be\nenrolled to serve children receiving child care subsidies pursuant to\ntitle five-C of this article, if an individual over the age of eighteen\nwho is not related in any way to all children for whom child care\nservices are or will be provided, resides in the household where child\ncare is, or is proposed to be provided, engaged in conduct listed in\nparagraph (a) of this subdivision.\n 3-a. (a) In relation to child day care programs and any enrolled\nlegally-exempt provider, when a clearance conducted pursuant to this\nsection reveals that any existing operator, director, caregiver, or\nperson over the age of eighteen who is not related in any way to all\nchildren for whom child care services are or will be provided, that\nresides in a home where child care is provided in a home setting where\nthe child does not reside has been convicted of a crime other than one\nset forth in subparagraph (iv) of paragraph (a) of subdivision three of\nthis section, and unless such crime is eligible for expungement pursuant\nto section 160.50 of the criminal procedure law, the office of children\nand family services shall conduct a safety assessment of the program and\ntake all appropriate steps to protect the health and safety of the\nchildren in the program, and may deny, limit, suspend, revoke or reject\nsuch program's license or registration or terminate or reject such\nprogram's enrollment, as applicable, unless the office of children and\nfamily services, determines in its discretion, that continued operation\nby the child day care program or enrolled legally-exempt provider will\nnot in any way jeopardize the health, safety or welfare of the children\ncared for in the program or by the provider.\n (b) In relation to child day care programs and any enrolled\nlegally-exempt provider, when a clearance conducted pursuant to this\nsection reveals that any existing employee or volunteer with the\npotential for unsupervised contact with children has been convicted of a\ncrime other than one set forth in subparagraph (iv) of paragraph (a) of\nsubdivision three of this section, and unless such crime is eligible for\nexpungement pursuant to section 160.50 of the criminal procedure law,\nthe office of children of family services shall conduct a safety\nassessment of the program and take all appropriate steps to protect the\nhealth and safety of the children in the program. The office of children\nand family services may direct the program or provider to terminate the\nemployee or volunteer based on such a conviction, consistent with\narticle twenty-three-A of the correction law.\n (c) (i) In relation to any child day care programs and any enrolled\nlegally-exempt providers, where a clearance conducted pursuant to this\nsection reveals a conviction for a crime other than one set forth in\nsubparagraph (iv) of paragraph (a) of subdivision three of this section,\nand unless such crime is eligible for expungement pursuant to section\n160.50 of the criminal procedure law, for any prospective employee or\nvolunteer, the office of children and family services may direct that\nsuch person not be hired, as applicable, based on such a conviction,\nconsistent with article twenty-three-A of the correction law.\n (ii) In relation to any child day care program and any enrolled\nlegally-exempt provider, when a clearance conducted pursuant to this\nsection reveals a conviction for a crime other than one set forth in\nsubparagraph (iv) of paragraph (a) of subdivision three of this section,\nand unless such crime is eligible for expungement pursuant to section\n160.50 of the criminal procedure law, for any prospective caregiver\nseeking enrollment, or applicant to be a director or operator, the\noffice of children and family services may deny the application or\nenrollment, consistent with article twenty-three-A of the correction\nlaw.\n (d) (i) Where a clearance conducted pursuant to this section reveals\nthat an applicant to be the operator or director of a child day care\nprogram, or applicant to be a caregiver, or anyone who is not related in\nany way to all children for whom child care services will be provided,\nresides in the home over the age of eighteen where child day care is\nproposed to be provided to children in a home-based setting has been\ncharged with a crime, the office of children and family services shall\nhold the application in abeyance until the charge is finally resolved.\n (ii) Where a clearance conducted pursuant to this section reveals that\nthe current operator or director of a child day care program, or any\nperson over the age of eighteen who is not related in any way to all\nchildren for whom child care services will be provided, that resides in\na home where child day care is provided has been charged with a crime,\nthe office of children and family services shall conduct a safety\nassessment of the program and take all appropriate steps to protect the\nhealth and safety of children in the program. The office of children and\nfamily services may suspend a license or registration or terminate\nenrollment based on such a charge when necessary to protect the health\nand safety of children in the program.\n (iii) Where a clearance conducted pursuant to this section reveals\nthat an existing caregiver, volunteer or an existing employee of an\nenrolled legally-exempt provider or any person over the age of eighteen\nthat resides in a home where the child care is provided by an enrolled\nlegally-exempt provider in a home setting where the child does not\nreside, has been charged with a crime, the office of children and family\nservices shall take one or more of the following steps:\n (A) Conduct a safety assessment; or\n (B) Take all appropriate steps to protect the health and safety of\nchildren in the program.\n (iv) Where a clearance conducted pursuant to this section reveals that\nan applicant to be an employee or volunteer with the potential for\nunsupervised contact with children of a child day care program or\nenrolled legally-exempt provider has been charged with a crime, the\noffice shall hold the application in abeyance until the charge is\nfinally resolved.\n (v) Where a clearance conducted pursuant to this section reveals that\na current employee, or current volunteer with the potential for\nunsupervised contact with children of a child day care program has been\ncharged with a crime, the office of children and family services shall\nconduct a safety assessment of the program and take all appropriate\nsteps to protect the health and safety of the children in the program.\n 3-b. All persons who are subjected to a criminal history and\nbackground clearance and safety assessment pursuant to this section who\nthe office of children and family services determines: (i) should be\ndenied enrollment, employment, or the ability to volunteer pursuant to a\nbackground clearance analysis performed by the office of children and\nfamily services, and (ii) where such denial is not based on an offense\nlisted in paragraph (a) of subdivision three of this section, shall have\nthe ability to request a de novo review of the article twenty-three-a of\nthe correction law determination in an administrative hearing before an\nadministrative law judge, to be held and completed before the present\nemployer is notified of such clearance determination. Such person shall\nhave reasonable notice concerning the determination, and information\nregarding how to request a hearing to review that determination, and an\nopportunity to provide any additional information that such person deems\nrelevant to such determination. Such person may choose to be heard in\nperson, by video conference if reasonably available, or through\nsubmission of written materials. Where such request is made, the office\nof children and family services shall also have an opportunity to be\nheard.\n 4. Prior to making a determination to deny an application pursuant to\nsubdivision three of this section, the office of children and family\nservices shall afford the applicant an opportunity to explain, in\nwriting, why the application should not be denied.\n 5. Notwithstanding any other provision of law to the contrary, the\noffice of children and family services, upon receipt of a criminal\nhistory record from the division of criminal justice services, may\nrequest, and is entitled to receive, information pertaining to any crime\ncontained in such criminal history record from any state or local law\nenforcement agency, district attorney, parole officer, probation officer\nor court for the purposes of determining whether any ground relating to\nsuch criminal conviction or pending criminal charge exists for denying a\nlicense, registration, application or employment.\n 6. The office of children and family services shall pay any required\nprocessing fee for a criminal history or sex offender clearance pursuant\nto this section. The office of children and family services shall\npromptly submit fingerprints obtained pursuant to this section and such\nprocessing fee to the division of criminal justice services.\n 7. Where the office of children and family services or its designee\ndenies or directs a child day care or an enrolled legally-exempt\nprovider to deny an application based on the criminal history record;\n(a) the provider must notify the applicant that such record is the basis\nof the denial; and (b) the office of children and family services shall\nalso notify as the case may be, such current or prospective operator,\ndirector, employee, assistant, legally exempt provider, volunteer with\nthe potential for unsupervised contact with children or other person\neighteen years of age or older, who resides in the home where care is\nprovided, other than the child's home, that the criminal record check\nwas the basis for the denial of clearance and shall provide such\nindividual with a copy of the results of the national criminal record\ncheck upon which such denial was based together with a written statement\nsetting forth the reasons for such denial, as well as a copy of article\ntwenty-three-A of the correction law and inform such individual of his\nor her right to seek correction of any incorrect information contained\nin such national record check provided by the federal bureau of\ninvestigation.\n 8. Any safety assessment required pursuant to this section shall\ninclude a review of the duties of the individual, the extent to which\nsuch individual may have contact with children in the program or\nhousehold and the status and nature of the criminal charge or\nconviction. Where the office of children and family services performs\nthe safety assessment, it shall thereafter take all appropriate steps to\nprotect the health and safety of children receiving care in the child\nday care center, school age child care program, family day care home or\ngroup family day care home.\n 9. (a) Any criminal history record provided by the division of\ncriminal justice services, and any summary of the criminal history\nrecord provided by the office of children and family services to a\nperson that receives a clearance pursuant to this section, is\nconfidential and shall not be available for public inspection; provided,\nhowever, nothing herein shall prevent the office of children and family\nservices from disclosing criminal history information or the individual\nfrom disclosing his or her criminal history information at any\nadministrative or judicial proceeding relating to the denial or\nrevocation of an application, employment, license or registration. The\nsubject of a criminal history review conducted pursuant to this section\nshall be entitled to receive, upon written request, a copy of the\nsummary of the criminal history record. Unauthorized disclosure of such\nrecords or reports shall be subject to civil penalties in accordance\nwith the provisions of subdivision eleven of section three hundred\nninety of this title.\n (b) The office of children and family services shall not release the\ncontent of the results of the nationwide criminal history record check\nconducted by the federal bureau of investigation in accordance with this\nsubdivision to any non-public entity.\n 10. A child day care or enrolled legally-exempt provider shall advise\nthe office of children and family services when an individual who is\nsubject to criminal history record review in accordance with subdivision\none or two of this section is no longer subject to such review. The\noffice of children and family services shall inform the division of\ncriminal justice services when an individual who is subject to criminal\nhistory review is no longer subject to such review so that the division\nof criminal justice services may terminate its retain processing with\nregard to such person. At least once a year, the office of children and\nfamily services will be required to conduct a validation of the records\nmaintained by the division of criminal justice services.\n 11. Child day care centers which are not subject to the provisions of\nsection three hundred ninety of this title shall not be subject to the\nprovisions of this section, provided however, that the city of New York\nshall require that such child day care centers meet the requirements of\nany federal laws and regulations pertaining to the child care\ndevelopment and block grant and the related federally approved plans of\nthe state of New York.\n 12. A child care support center certified pursuant to section three\nhundred ninety-n of this title shall be authorized to request clearances\nfor substitute caregivers in accordance with this section. Substitute\ncaregivers shall be considered "prospective employees" of a child day\ncare program under subparagraph (iii) of paragraph (a) of subdivision\ntwo of this section.\n