N.Y. Social Services Law § 378-a: Access to conviction records by authorized agencies

§ 378-a. Access to conviction records by authorized agencies. 1.

Every authorized agency which operates a residential program for

children licensed or certified by the office of children and family

services, and the office of children and family services in relation to

any juvenile justice program it operates, shall request that the justice

center for the protection of people with special needs check, and upon

such request, such justice center shall request and shall be authorized

to receive from the division of criminal justice services and the

federal bureau of investigation criminal history information, as such

phrase is defined in paragraph (c) of subdivision one of section eight

hundred forty-five-b of the executive law concerning each prospective

operator, employee or volunteer of such a residential program who will

have regular and substantial unsupervised or unrestricted physical

contact with children in such program.

(a) Provided however, any authorized agency required to request

criminal history information pursuant to this subdivision that operates

a residential program for foster children that is licensed or certified

by the office of children and family services shall request that the

justice center for the protection of people with special needs check,

and upon such request, such justice center shall request and shall be

authorized to receive from the division of criminal justice services and

the federal bureau of investigation criminal history information, as

such phrase is defined in paragraph (c) of subdivision one of section

eight hundred forty-five-b of the executive law, for every: (i)

prospective employee of such program that is not already required to be

cleared pursuant to the opening paragraph of this subdivision; 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, any person who

is employed in a residential foster care program that has not previously

had a clearance conducted pursuant to this section in connection to such

employment.

(b) For the purposes of this section, "operator" shall include any

natural person with an ownership interest in the authorized agency.

(c) Access to and the use of information obtained pursuant to this

subdivision shall be governed by the provisions of section eight hundred

forty-five-b of the executive law.

1-a. Excluding the authorized agencies authorized to request and

receive criminal history information pursuant to subdivision one of this

section, and subject to the rules and regulations of the division of

criminal justice services, an authorized agency defined in subdivision

ten of section three hundred seventy-one of this title shall have access

to criminal history information, as such phrase is defined in paragraph

(c) of subdivision one of section eight hundred forty-five-b of the

executive law, pertaining to persons who have applied for and are under

active consideration for employment by such authorized agency in

positions where such persons will have the potential for regular and

substantial unsupervised and unrestricted physical contact with children

in the program. Upon receipt of such criminal history information, the

authorized agency shall provide the prospective employee with a copy of

such criminal history information and a copy of article twenty-three-A

of the correction law and inform such prospective employee of his or her

right to seek correction of any incorrect information contained in such

criminal history information pursuant to the regulations and procedures

established by the division of criminal justice services. The authorized

agency shall designate one or two persons in its employ who shall be

authorized to request, receive and review the criminal history

information pursuant to this subdivision, and only such persons and the

prospective employee to which the criminal history information relates

shall have access to such information; provided, however, that such

criminal history information may be disclosed to other personnel

empowered by the agency to make decisions concerning prospective

employees. The authorized agency shall notify the division of criminal

justice services of each person authorized to have access to such

criminal history information pursuant to this subdivision. Except as

otherwise provided in this subdivision, such criminal history

information shall be confidential and any person who willfully permits

the release of such confidential criminal history information to persons

not permitted by this subdivision to receive such information shall be

guilty of a misdemeanor.

2. (a) Notwithstanding any other provision of law to the contrary, and

subject to rules and regulations of the division of criminal justice

services, an authorized agency, as defined in subdivision ten of section

three hundred seventy-one of this title, shall perform a criminal

history record check with the division of criminal justice services

regarding any prospective foster parent or prospective adoptive parent

or, a prospective successor guardian in accordance with paragraph (d) of

subdivision two of section four hundred fifty-eight-b of this article,

and any person over the age of eighteen who is currently residing in the

home of such prospective foster parent, prospective adoptive parent or

prospective successor guardian. Provided, however, that for prospective

foster parents and prospective adoptive parents and other persons over

the age of eighteen in their homes, the checks required by this

paragraph shall be conducted before the foster parent or adoptive parent

is finally certified or approved for the placement of a child. Persons

who are over the age of eighteen residing in the home of a certified or

approved foster parent and who previously did not have a criminal

history record check performed in accordance with this subdivision shall

have such a criminal history record check performed when the foster

parent applies for renewal of his or her certification or approval as a

foster parent. The division of criminal justice services is authorized

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 92-544 to determine whether such prospective

foster parent, prospective adoptive parent, prospective successor

guardian or person over the age of eighteen currently residing in the

home of such prospective parent or guardian has a criminal history in

any state or federal jurisdiction. The provisions and procedures of this

section, including the criminal history record check of persons over the

age of eighteen who are currently residing in the home of the foster

parent, also shall apply to prospective foster parents certified by the

office of children and family services and to family homes certified by

any other state agency where such family homes care for foster children

in accordance with a memorandum of understanding with the office of

children and family services.

(b) Every authorized agency shall obtain a set of the prospective

foster parent, prospective adoptive parent or prospective successor

guardian's fingerprints and those of any person over the age of eighteen

who currently resides in the home of such prospective foster parent,

prospective adoptive parent or prospective successor guardian, and such

other information as is required by the office of children and family

services and the division of criminal justice services. The authorized

agency shall provide to the applicant blank fingerprint cards and a

description of how the completed fingerprint cards will be used upon

submission to the authorized agency. The authorized agency shall

promptly transmit such fingerprint cards to the office of children and

family services. The office of children and family services shall

promptly submit such fingerprint cards and the processing fee imposed

pursuant to subdivision eight-a of section eight hundred thirty-seven of

the executive law to the division of criminal justice services for its

full search and retain processing. Notwithstanding any other provision

of law to the contrary, the processing fee shall be submitted by the

office of children and family services and no part thereof shall be

charged to the prospective foster parent, prospective adoptive parent,

prospective successor guardian or any person over the age of eighteen

who currently resides in the home of such prospective foster parent,

prospective adoptive parent or prospective successor guardian who

submitted a fingerprint card pursuant to this subdivision.

(c) The division of criminal justice services shall promptly provide

to the office of children and family services a criminal history record,

if any, with respect to the prospective foster parent, prospective

adoptive parent or prospective successor guardian and any other person

over the age of eighteen who resides in the home of the prospective

foster parent, prospective adoptive parent or prospective successor

guardian, or a statement that the individual has no criminal history

record.

(d) 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

offense contained in such criminal history record from any state or

local law enforcement agency or court for the purposes of determining

whether any ground relating to such criminal conviction or pending

criminal charge exists for denying an application.

(e) Except as set forth in paragraph (m) of this section, after

reviewing any criminal history record information provided by the

division of criminal justice services, the office of children and family

services shall promptly notify the authorized agency or other state

agency that:

(1) Notwithstanding any other provision of law to the contrary, an

application for certification or approval of a prospective foster parent

or prospective adoptive parent shall be denied and, in the event of

death or incapacity of a relative guardian, an agreement to provide

payments to a prospective successor guardian pursuant to title ten of

this article shall not be approved pursuant to subparagraph (ii) of

paragraph (b) of subdivision five of section four hundred fifty-eight-b

of this article, as applicable, where a criminal history record of the

prospective foster parent, prospective adoptive parent or prospective

successor guardian, as applicable, reveals a conviction for:

(A) a felony conviction at any time involving: (i) child abuse or

neglect; (ii) spousal abuse; (iii) a crime against a child, including

child pornography; or (iv) a crime involving violence, including rape,

sexual assault, or homicide, other than a crime involving physical

assault or battery; or

(B) a felony conviction within the past five years for physical

assault, battery, or a drug-related offense, unless such offense is

eligible for expungement pursuant to section 160.50 of the criminal

procedure law; or

(2) Notwithstanding any other provision of law to the contrary, a

final determination of an application for certification or approval of a

prospective foster parent or prospective adoptive parent and, in

relation to prospective successor guardians, approval pursuant to

subparagraph (ii) of paragraph (b) of subdivision five of section four

hundred fifty-eight-b of this article shall be held in abeyance whenever

the criminal history record of the prospective foster parent,

prospective adoptive parent or prospective successor guardian, as

applicable, reveals:

(A) a charge for a crime set forth in subparagraph one of this

paragraph which has not been finally resolved; or

(B) a felony conviction that may be for a crime set forth in

subparagraph one of this paragraph. An authorized agency may proceed

with a determination of such application, in a manner consistent with

this subdivision, only upon receiving subsequent notification from the

office of children and family services regarding the status of such

charge or the nature of such conviction; or

(3) consistent with the provisions of article twenty-three-A of the

correction law, an application for certification or approval of a

prospective foster parent or prospective adoptive parent may be denied,

an agreement to provide payments to a prospective successor guardian

pursuant to title ten of this article may not be approved pursuant to

subparagraph (ii) of paragraph (b) of subdivision five of section four

hundred fifty-eight-b of this article, as applicable, where:

(A) a criminal history record of the prospective foster parent,

prospective adoptive parent or prospective successor guardian reveals a

charge or a conviction of a crime other than one set forth in

subparagraph one of this paragraph; or

(B) a criminal history record of any other person over the age of

eighteen who resides in the home of the prospective foster parent,

prospective adoptive parent or prospective successor guardian reveals a

charge or a conviction of any crime; or

(4) Notwithstanding any other provision of law to the contrary, an

application for renewal of the certification or approval of a foster

parent submitted on or after October first, two thousand eight shall be

denied based on the conviction of the foster parent of a crime set forth

in subparagraph one of this paragraph where such conviction occurred on

or after October first, two thousand eight; or

(5) Notwithstanding any other provision of law to the contrary, the

certification or approval of a foster parent, or the approval of an

adoptive parent who has not completed the adoption process, shall be

revoked based on the conviction of the foster parent or the adoptive

parent of a crime set forth in subparagraph one of this paragraph; or

(6) the prospective foster parent, prospective adoptive parent or

prospective successor guardian and any person over the age of eighteen

who is residing in the home of the prospective foster parent,

prospective adoptive parent or prospective successor guardian has no

criminal history record.

(f) Except as otherwise set forth in this paragraph, any notification

by the office of children and family services pursuant to paragraph (e)

of this subdivision shall include a summary of the criminal history

record provided by the division of criminal justice services, including,

but not limited to, the specific crime or crimes for which the

prospective foster parent or parents, adoptive parent or parents or

prospective successor guardian or guardians or any adults over the age

of eighteen living in the home have been charged or convicted, as

applicable. When responding to an inquiry from a voluntary authorized

agency or other non-public agency with respect to the results of a

national criminal history check performed by the federal bureau of

investigation, the office of children and family services shall advise

the voluntary authorized agency or other non-public agency of the

category or categories of crime or crimes and shall not provide the

voluntary authorized agency or other non-public agency with the specific

crime or crimes absent the written consent of the person for whom the

national criminal history check was performed.

(g) When an authorized agency has denied an application or approval in

accordance with the provisions of paragraph (e) of this subdivision, the

authorized agency shall provide to the applicant a written statement

setting forth the reasons for such denial, including, as authorized by

paragraph (f) of this subdivision, the summary of the criminal history

record provided to the authorized agency by the office of children and

family services. The authorized agency shall also provide a description

of the division of criminal justice services' record review process and

any remedial processes provided by the office of children and family

services to any prospective foster parent, prospective adoptive parent

or prospective successor guardian. If the applicant is disqualified

under item (ii) of clause (A) of subparagraph one of paragraph (e) of

this subdivision, then the applicant may apply for relief from the

mandatory disqualification based on the grounds that the offense was not

spousal abuse as that term is defined in paragraph (j) of this

subdivision.

(h) Where a criminal history record of the certified or approved

foster parent, prospective adoptive parent or of any other person over

the age of eighteen who resides in the home of the certified or approved

foster parent or prospective adoptive parent reveals a charge or

conviction of any crime, the authorized agency shall perform a safety

assessment of the conditions in the household. Such assessment shall

include: whether the subject of the charge or conviction resides in the

household; the extent to which such person may have contact with foster

children or other children residing in the household; and the status,

date and nature of the criminal charge or conviction. The authorized

agency shall thereafter take all appropriate steps to protect the health

and safety of such child or children, including, when appropriate, the

removal of any foster child or children from the home. Where the

authorized agency denies the application or revokes the approval or

certification of the foster parent or the prospective adoptive parent in

accordance with the standards set forth in paragraph (e) of this

subdivision, such authorized agency shall remove any foster child or

children from the home of the foster parent or the prospective adoptive

parent.

(i) 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 an authorized

agency pursuant to this subdivision, is confidential and shall not be

available for public inspection; provided, however, nothing herein shall

prevent an authorized agency, the office of children and family services

or other state agency referenced in paragraph (a) of this subdivision

from disclosing criminal history information to any administrative or

judicial proceeding relating to the denial or revocation of a

certification or approval of a foster parent or an adoptive parent or

the removal of the foster child from the home or the failure to approve

a prospective successor guardian pursuant to subparagraph (ii) of

paragraph (b) of subdivision five of section four hundred fifty-eight-b

of this article or the termination of an agreement for payments pursuant

to title ten of this article that is made in accordance with paragraph

(h) of subdivision four of section four hundred fifty-eight-b of this

article. Where there is a pending court case, the authorized agency

which received the criminal history record summary from the office of

children and family services, shall provide a copy of such summary to

the family court or surrogate's court.

(j) For the purposes of this subdivision "spousal abuse" is an offense

defined in section 120.05, 120.10, 121.12 or 121.13 of the penal law

where the victim of such offense was the defendant's spouse; provided,

however, spousal abuse shall not include a crime in which the

prospective foster parent, prospective adoptive parent or prospective

successor guardian, who was the defendant, has received notice pursuant

to paragraph (g) of this subdivision and the office of children and

family services finds after a fair hearing held pursuant to section

twenty-two of this chapter, that he or she was the victim of physical,

sexual or psychological abuse by the victim of such offense and such

abuse was a factor in causing the prospective foster parent, prospective

adoptive parent or prospective successor guardian to commit such

offense.

(k) The office of children and family services shall inform the

division of criminal justice services when a person is no longer

certified or approved as a foster parent or is no longer a prospective

adoptive parent so that the division of criminal justice services may

terminate its retain processing with regard to such person and any

person over the age of eighteen who is residing in the home of the

foster parent or prospective adoptive parent. 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.

(l) The office of children and family services, in consultation with

the division of criminal justice services, shall promulgate regulations

for the purpose of implementing the provisions of this subdivision

relating to the standards for the certification or approval of foster

parents or adoptive parents.

(m)(1) 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 an authorized agency, as defined in paragraphs

(a) or (c) of subdivision ten of section three hundred seventy-one of

this title.

(2) For any application made to such an authorized agency under this

subdivision, the office of children and family services shall:

(A) review and evaluate the results of the nationwide criminal history

record check of the prospective foster parent, prospective adoptive

parent and any other person over the age of eighteen who resides in the

home of such applicant in accordance with the standards set forth in

paragraph (e) of this subdivision relating to mandatory disqualifying

convictions, hold in abeyance charges or convictions, and discretionary

charges and convictions; and

(B) based on the results of the nationwide criminal history record

check, inform such authorized agency that the application for

certification or approval of the prospective foster parent or the

prospective adoptive parent either: (i) must be denied; (ii) must be

held in abeyance pending subsequent notification from the office of

children and family services; or (iii) that the office of children and

family services has no objection, solely based on the nationwide

criminal history record check, for the authorized agency to proceed with

a determination on such application based on the standards for

certification or approval of a prospective foster parent or prospective

adoptive parent, as set forth in the regulations of the office of

children and family services.

(3) Where the office of children and family services directs the

authorized agency to deny the application of a prospective foster parent

or a prospective adoptive parent in accordance with this paragraph, the

office of children and family services shall also notify the prospective

foster parent, prospective adoptive parent or other person over the age

of eighteen who resided in the home of the applicant whose criminal

history was the basis for the denial and shall provide such prospective

foster parent, prospective adoptive parent or other person a copy of the

results of the nationwide criminal history record check upon which such

denial was based and a written statement setting forth the reasons for

such denial. If the applicant is disqualified under item (ii) of clause

(A) of subparagraph one of paragraph (e) of this subdivision, then the

applicant may apply for relief from the mandatory disqualification based

on the grounds that the offense was not spousal abuse as that term is

defined in paragraph (j) of this subdivision.

(4) This paragraph does not apply to nationwide criminal history

record checks conducted by the federal bureau of investigation on behalf

of state agencies or authorized agencies, as defined in paragraph (b) of

subdivision ten of section three hundred seventy-one of this title, or

to the results of statewide criminal history record checks conducted by

the division of criminal justice services.