2018 New York Laws
SOS - Social Services
Article 6 - Children
Title 1 - Care and Protection of Children
390-B - Criminal History Review and Background Clearances of Child Care Providers, Generally.

§ 390-b. * Criminal history review of child care providers, generally.
* NB Effective until September 1, 2019
* Criminal  history  review  and  background  clearances of child care
  providers, generally.
* NB Effective September 1, 2019
* 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.
* NB Effective until September 1, 2019
* 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.
* NB Effective September 1, 2019
* 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.
* NB Effective September 1, 2019
* 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.
* NB Effective until September 1, 2019
* 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.
* NB Effective September 1, 2019
* 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.
* NB Effective until September 1, 2019
* 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.
* NB Effective September 1, 2019
* 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, 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, 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,
  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,
  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.
* NB Effective September 1, 2019
* 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.
* NB Effective September 1, 2019
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.
* NB Effective until September 1, 2019
* 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.
* NB Effective September 1, 2019
* 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.
* NB Effective until September 1, 2019
* 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.
* NB Effective September 1, 2019
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.
* NB Effective until September 1, 2019
* 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.
* NB Effective September 1, 2019
* 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.
* NB Effective until September 1, 2019
* 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.
* NB Effective September 1, 2019
* 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.
* NB Effective September 1, 2019