2012 New York Consolidated Laws
SOS - Social Services
Article 6 - CHILDREN
Title 1 - (371 - 392) CARE AND PROTECTION OF CHILDREN
390-B - Criminal history review of child care providers, generally.

 
    §  390-b.  Criminal history review of child care providers, generally.
  1. (a) Notwithstanding any other provision of law to the  contrary,  and
  subject  to  rules  and  regulations of the division of criminal justice
  services, the office of children and family  services  shall  perform  a
  criminal  history  record  check  with  the division of criminal justice
  services regarding any operator, employee or volunteer of  a  child  day
  care  center or school age child care provider, as defined in paragraphs
  (c) and (f) of subdivision one of section three hundred ninety  of  this
  title.  Child day care center operators, school age child care operators
  and any employees or volunteers, 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 child day
  care center or school age child care provider  applies  for  license  or
  registration  renewal.  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. The provisions of this
  section shall apply to a volunteer only  where  the  volunteer  has  the
  potential  for regular and substantial contact with children enrolled in
  the program.
    (b) Notwithstanding any other provision of law to  the  contrary,  and
  subject  to  rules  and  regulations of the division of criminal justice
  services, the office of children and family  services  shall  perform  a
  criminal  history  record  check  with  the division of criminal justice
  services regarding the operator, any assistants, employees or volunteers
  of a group family day care home or family day care home, as  defined  in
  paragraphs  (d)  and  (e)  of  subdivision  one of section three hundred
  ninety of this title, and any person age eighteen or  over  residing  on
  the  premises  of the group family day care home or family day care home
  which is to be licensed or registered in accordance with  section  three
  hundred  ninety  of  this  title.  Group family day care home operators,
  family day care home operators, any assistants, employees or volunteers,
  and persons who are age eighteen or over residing on the premises  of  a
  licensed  group  family day care home or registered family day care home
  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 group family day care home or family day
  care home applies for renewal of the home's license or registration. The
  provisions  of  this  section  shall apply to a volunteer only where the
  volunteer has the potential for regular  and  substantial  contact  with
  children enrolled in the program.
    2.  (a)  As  part  of the provider's application for, or renewal of, a
  child day care center or school age child care license or  registration,
  the  provider  shall  furnish the office of children and family services
  with fingerprint cards of any operator of a child  day  care  center  or
  school  age  child  care  program,  and  any  employee or volunteer, who
  previously did not have a criminal history  record  check  performed  in
  accordance with this section, together with such other information as is
  required  by the office of children and family services and the division
  of criminal justice services.
    (b) Every child day care center or  school  age  child  care  provider
  shall  obtain  a  set  of  fingerprints for each prospective employee or
  volunteer and such other information as is required  by  the  office  of
  children  and  family  services  and  the  division  of criminal justice
  services. The child day care center or school  age  child  care  program
  shall furnish to the applicant blank fingerprint cards and a description
  of  how the completed fingerprint cards will be used. The child day care
  center or school age child care program  shall  promptly  transmit  such
  fingerprint cards to the office of children and family services.

    (c)  As part of the provider's application for, or renewal of, a group
  family day care home license or family day care home  registration,  the
  provider  shall  furnish the office of children and family services with
  fingerprint cards of any operator of a group family  day  care  home  or
  family  day care home, and any assistant, employee or volunteer, and any
  person age eighteen or over residing on the premises of the group family
  day care home or family day care home, who previously  did  not  have  a
  criminal history record check performed in accordance with this section,
  together  with  such  other  information as is required by the office of
  children and family  services  and  the  division  of  criminal  justice
  services.
    (d)  Every group family day care home or family day care home provider
  shall obtain a set  of  fingerprints  for  each  prospective  assistant,
  employee,  volunteer  and  any  person  age eighteen or over who will be
  residing on the premises of the group family day care home or family day
  care home, and such other information as is required by  the  office  of
  children  and  family  services  and  the  division  of criminal justice
  services. The group family  day  care  home  or  family  day  care  home
  provider  shall  furnish  to the applicant blank fingerprint cards and a
  description of how the completed fingerprint cards  will  be  used.  The
  group  family  day  care  home  or  family  day care home provider shall
  promptly transmit such fingerprint cards to the office of  children  and
  family services.
    (e)  The  office  of  children  and  family  services  shall  pay  the
  processing fee imposed pursuant to subdivision eight-a of section  eight
  hundred  thirty-seven  of  the executive law. The office of children and
  family services shall promptly submit  the  fingerprint  cards  and  the
  processing fee to the division of criminal justice services for its full
  search and retain processing.
    (f)  A  licensed or registered child day care center, school-age child
  care program, group family day care home or family  day  care  home  may
  temporarily  approve  an  applicant  to  be  an  employee,  assistant or
  volunteer for such provider while the results of  the  criminal  history
  record  check  are  pending,  but  shall  not  allow such person to have
  unsupervised contact with children during such time.
    3. Notwithstanding any other provision of law to the  contrary,  after
  reviewing  any  criminal  history  record  information  provided  by the
  division of criminal justice services, of an individual who  is  subject
  to  a criminal history record check pursuant to this section, the office
  of children  and  family  services  and  the  provider  shall  take  the
  following actions:
    (a)  (i)  Where  the  criminal history record of an applicant to be an
  operator of a child day care center,  school  age  child  care  program,
  group family day care home, family day care home, or any person over the
  age  of eighteen residing in such a home, reveals a felony conviction at
  any time for a sex offense, crime against a child, or a crime  involving
  violence,  or  a  felony  conviction  within  the  past five years for a
  drug-related offense, the office of children and family  services  shall
  deny  the  application  unless the office determines, in its discretion,
  that approval of the application will not  in  any  way  jeopardize  the
  health,  safety  or  welfare  of  the children in the center, program or
  home; or
    (ii) Where the criminal history  record  of  an  applicant  to  be  an
  operator  of  a  child  day  care center, school age child care program,
  group family day care home, family day care home, or any person over the
  age of eighteen residing in such a home,  reveals  a  conviction  for  a
  crime  other  than  one set forth in subparagraph (i) of this paragraph,

  the office of children and family services  may  deny  the  application,
  consistent with article twenty-three-A of the correction law; or
    (iii)  Where  the  criminal  history  record  of an applicant to be an
  operator of a child day care center,  school  age  child  care  program,
  group  family  day  care home, family day care home, or any other person
  over the age of eighteen residing in such a home, reveals a  charge  for
  any  crime,  the  office  of children and family services shall hold the
  application in abeyance until the charge is finally resolved.
    (b) (i) Where the criminal history record of a current operator  of  a
  child  day  care center, school age child care program, group family day
  care home, family day care home, or any other person  over  the  age  of
  eighteen  residing  in such a home, reveals a conviction for a crime set
  forth in subparagraph (i) of paragraph  (a)  of  this  subdivision,  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. The office of children and family
  services shall deny, limit,  suspend,  revoke,  reject  or  terminate  a
  license  or  registration  based on such a conviction, unless the office
  determines, in its discretion, that continued operation of  the  center,
  program  or  home  will  not in any way jeopardize the health, safety or
  welfare of the children in the center, program or home;
    (ii) Where the criminal history record of  a  current  operator  of  a
  child  day  care center, school age child care program, group family day
  care home, family day care home, or any other person  over  the  age  of
  eighteen residing in such a home, reveals a conviction for a crime other
  than  one  set  forth  in  subparagraph  (i)  of  paragraph  (a) of this
  subdivision, 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. The office
  may deny, limit, suspend, revoke,  reject  or  terminate  a  license  or
  registration  based  on  such  a  conviction,  consistent  with  article
  twenty-three-A of the correction law;
    (iii) Where the criminal history record of a  current  operator  of  a
  child  day  care center, school age child care program, group family day
  care home, family day care home, or any other person  over  the  age  of
  eighteen  residing  in  such a home, reveals a charge for any 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. The office may suspend a license
  or registration based on such a charge where necessary  to  protect  the
  health and safety of the children in the program.
    (c)  (i)  Where  the  criminal history record of an applicant to be an
  employee or volunteer at a child day care center  or  school  age  child
  care  program reveals a conviction for a crime set forth in subparagraph
  (i) of paragraph (a) of this subdivision, the  office  of  children  and
  family services shall direct the provider to deny the application unless
  the   office  determines,  in  its  discretion,  that  approval  of  the
  application will not in any way jeopardize the health, safety or welfare
  of the children in the center or program;
    (ii) Where the criminal history  record  of  an  applicant  to  be  an
  employee  or  volunteer  at  a child day care center or school age child
  care program reveals a conviction for a crime other than one  set  forth
  in  subparagraph (i) of paragraph (a) of this subdivision, the office of
  children and family services may, consistent with article twenty-three-A
  of the correction law, direct the provider to deny the application;
    (iii) Where the criminal history record  of  an  applicant  to  be  an
  employee  or  volunteer  at  a child day care center or school age child
  care program reveals a charge for any crime, the office of children  and

  family  services shall hold the application in abeyance until the charge
  is finally resolved.
    (d)  (i)  Where  the  criminal history record of a current employee or
  volunteer at a child day care center or school age  child  care  program
  reveals  a  conviction  for  a  crime  set  forth in subparagraph (i) of
  paragraph (a) of this subdivision, 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.  The  office  shall  direct  the provider to terminate the
  employee or volunteer based on such  a  conviction,  unless  the  office
  determines,  in  its  discretion,  that  the  continued  presence of the
  employee or volunteer in the center or  program  will  not  in  any  way
  jeopardize  the  health, safety or welfare of the children in the center
  or program;
    (ii) Where the criminal  history  record  of  a  current  employee  or
  volunteer  at  a  child day care center or school age child care program
  reveals  a  conviction  for  a  crime  other  than  one  set  forth   in
  subparagraph  (i)  of  paragraph  (a) of this subdivision, 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. The office may direct  the  provider  to
  terminate  the  employee  or  volunteer  based  on  such  a  conviction,
  consistent with article twenty-three-A of the correction law;
     (iii) Where the criminal history record  of  a  current  employee  or
  volunteer  at  a  child day care center or school age child care program
  reveals a charge for any  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.
    (e)  (i)  Where  the  criminal history record of an applicant to be an
  employee, assistant or volunteer at a group  family  day  care  home  or
  family  day  care  home  reveals  a  conviction for a crime set forth in
  subparagraph (i) of paragraph (a) of this  subdivision,  the  office  of
  children  and  family  services  shall  direct  the provider to deny the
  application unless  the  office  determines,  in  its  discretion,  that
  approval  of  the application will not in any way jeopardize the health,
  safety or welfare of the children in the home;
    (ii) Where the criminal history  record  of  an  applicant  to  be  an
  employee,  assistant  or  volunteer  at  a group family day care home or
  family day care home reveals a conviction for a crime other than one set
  forth in subparagraph (i) of paragraph  (a)  of  this  subdivision,  the
  office  of  children  and  family  services may, consistent with article
  twenty-three-A of the correction law, direct the provider  to  deny  the
  application;
    (iii)  Where  the  criminal  history  record  of an applicant to be an
  employee, assistant or volunteer at a group  family  day  care  home  or
  family  day  care  home  reveals  a  charge for any crime, the office of
  children and family services shall  hold  the  application  in  abeyance
  until the charge is finally resolved.
    (f)  (i)  Where  the  criminal  history  record of a current employee,
  assistant or volunteer at a group family day care  home  or  family  day
  care home reveals a conviction for a crime set forth in subparagraph (i)
  of  paragraph (a) of this subdivision, 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 home. The office of children and family services  shall  direct  the
  provider to terminate the employee, assistant or volunteer based on such
  a  conviction, unless the office determines, in its discretion, that the

  continued presence of the employee, assistant or volunteer in  the  home
  will  not  in  any  way  jeopardize the health, safety or welfare of the
  children in the home;
    (ii)  Where  the  criminal  history  record  of  a  current  employee,
  assistant or volunteer at a group family day care  home  or  family  day
  care  home  reveals a conviction for a crime other than one set forth in
  subparagraph (i) of paragraph (a) of this  subdivision,  the  office  of
  children  and  family  services shall conduct a safety assessment of the
  home and take all appropriate steps to protect the health and safety  of
  the  children  in  the  home.  The  office  may  direct  the provider to
  terminate  the  employee,  assistant  or  volunteer  based  on  such   a
  conviction,  consistent  with  article  twenty-three-A of the correction
  law;
    (iii) Where  the  criminal  history  record  of  a  current  employee,
  assistant  or  volunteer  at  a group family day care home or family day
  care home reveals a charge for any crime, the  office  of  children  and
  family  services  shall conduct a safety assessment of the home and take
  all appropriate steps to protect the health and safety of  the  children
  in the home.
    (g)  Advise  the  provider that the individual has no criminal history
  record.
    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 notification by the office of children and family  services  to
  the  child  day  care  provider pursuant to this section shall include a
  summary of the criminal history record, if any, provided by the division
  of criminal justice services.
    7. Where the office of children and family services  directs  a  child
  day  care  provider to deny an application based on the criminal history
  record, the provider must notify the applicant that such record  is  the
  basis of the denial.
    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. 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  child  day
  care provider pursuant to this section, is confidential and shall not be
  available for public inspection; provided, however, nothing herein shall
  prevent  a  child day care provider or the office of children and family
  services  from  disclosing   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  provided  by  the  office  of
  children   and   family   services  to  the  child  day  care  provider.
  Unauthorized disclosure of such records or  reports  shall  subject  the
  provider  to  civil  penalties  in  accordance  with  the  provisions of
  subdivision eleven of section three hundred ninety of this title.
    10. A child day care 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.