N.Y. Social Services Law § 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.

12. A child care support center certified pursuant to section three

hundred ninety-n of this title shall be authorized to request clearances

for substitute caregivers in accordance with this section. Substitute

caregivers shall be considered "prospective employees" of a child day

care program under subparagraph (iii) of paragraph (a) of subdivision

two of this section.