Current through Register Vol. 47, No. 12, March 26, 2025
(a) The following criminal history review and
background clearances shall be conducted pursuant to and consistent with the
Child Care and Development Block Grant Act for any prospective operator,
director, employee or volunteer at a child day care center, small day care
center, school-age child care program, group family day care home or family day
care home, as defined in section
413.2 of this Part, and any person
age 18 or older living in a prospective, or who begins to live, in a group
family day care home or family day care home:
(1) a criminal history record check with the
New York State Division of Criminal Justice Services;
(2) a national criminal record check with the
Federal Bureau of Investigation;
(3) a search of the New York State Sex
Offender Registry; and
(4) a
database check of the Statewide Central Register of Child Abuse and
Maltreatment in accordance with section
424-a of
the Social Services Law.
(b) The following criminal history review and
background clearances shall be conducted pursuant to and consistent with the
Child Care and Development Block Grant Act in accordance with a schedule
developed by the office for any existing operator, director, employee or
volunteer at a child day care center, small day care center, school-age child
care program, group family day care home or family day care home, and any
person age 18 or older living in a group family day care home or family day
care home:
(1) all clearances required
pursuant to subdivision (a) of this section; and
(2) a search of the National Sex Offender
Registry using the National Crime and Information Center.
(c) In addition to the clearances required
pursuant to subdivisions (a) and (b) of this section, the following clearances,
for which ongoing criminal history results are not already provided, shall be
conducted in accordance with a schedule developed by the office for any
operator, director, employee or volunteer at a child day care center, small day
care center, school-age child care program, group family day care home or
family day care home, as defined in section
413.2 of this Part, and any person
age 18 or older living or who begins to live in a group family day care home or
family day care home, living or who lived in any state other than New York
during the preceding 5 years:
(1) a search of
the criminal history repository in each state other than New York where such
person lives or lived during the preceding five years, unless such state's
criminal history record information will be provided as part of the clearance
conducted pursuant to paragraph (a)(2) of this section;
(2) a search of any state sex offender
registry or repository in each state other than New York where such person
lives or lived during the preceding five years, unless such state's sex
offender registry information will be provided as part of the clearance
conducted pursuant to paragraph (b)(2) of this section; and
(3) a search of the state-based child abuse
or neglect repository of any state other than New York where such person lives
or lived during the preceding five years.
(d)
Process.
(1) Any initial application for a child care
license or registration shall include the submission of fingerprint images for
any operator, director, employee, or volunteer, and any person age 18 or older
living in a group family day care home or family day care home.
(2) Every licensee and registrant shall
submit fingerprint images for each prospective director, employee, or
volunteer, and any person age 18 or older prospectively living in a group
family day care home or family day care home.
(3) The licensee or registrant shall furnish
to each prospective director, employee, or volunteer, and any person age 18 or
older prospectively living in a group family day care home or family day care
home a fingerprint imaging application form and a description of how the
completed fingerprint images will be used.
(4) The clearances required pursuant to this
section, other than those for which ongoing criminal history results are
provided, shall be conducted for any existing operator, director, employee or
volunteer at a child day care center, small day care center, school-age child
care program, group family day care home or family day care home, as defined in
section 413.2 of this Part, and any person
age 18 or older living in a group family day care home or family day care home
at least once every five years in accordance with a schedule developed by the
office.
(5) A prospective director,
employee or volunteer may begin to work or volunteer at a child day care
center, small day care center, school-age child care program, group family day
care home or family day care home after completing either the check described
in paragraphs (a)(1) or (2) of this section.
(6) Pending notification of completion of all
required background check components in subdivision (a) of this section, a
prospective director, employee or volunteer must always be supervised by an
individual who received a qualifying result on the background checks described
in paragraph (a) of this section within the past five years. A provisional
director, employee or volunteer shall not have unsupervised contact with
children in care.
(7) A license or
registration cannot be issued until the office notifies the program that the
operator and director, and every employee, volunteer and person age 18 or older
who lives in the home has completed all clearance requirements in this
section.
(8) A person who has
separated from their role in a child care program within New York State for a
period of more than 180 consecutive days is required to submit the clearances
pursuant to this section when applying for a role in any child care
program.
(e)
Ineligibility based on results.
(1) Any person or program required to submit
to clearances pursuant to this section shall be deemed ineligible, as such term
is defined in paragraph (2) of this subdivision, if such person:
(i) refuses to consent to such
clearances;
(ii) knowingly makes a
materially false statement in connection with such clearances;
(iii) is registered, or is required to be
registered, on a state sex offender registry or repository or the national sex
offender registry;
(iv) has been
convicted of a felony consisting of:
(a)
murder, as described in section 1111 of title 18, United States Code;
(b) child abuse or neglect;
(c) a crime against children, including child
pornography;
(e) a crime involving rape
or sexual assault;
(h) physical assault or battery; or
(v) has been convicted of a
violent misdemeanor committed as an adult against a child, including child
abuse, child endangerment and sexual assault, or of a misdemeanor involving
child pornography.
(2)
For purposes of this subdivision, the term
ineligible shall
mean:
(i) The person who engaged in conduct
listed in paragraph (1) of this subdivision shall not be permitted to be an
operator, director, employee or volunteer at a child day care program subject
to the criminal history review and background clearance process.
(ii) A family day care home or group family
day care home shall not be permitted to operate if a person age 18 or older
lives in the residence and engaged in conduct listed in paragraph (1) of this
subdivision.
(f)
Actions taken based on
results.
(1) Conviction for a mandatory
disqualifying offense.
(i) When a clearance
conducted pursuant to this section reveals that a prospective or existing
operator, director, employee or volunteer at a child day care center, small day
care center, school-age child care program, group family day care home or
family day care home, as defined in section
413.2 of this Part, or a person
age 18 or older living in a prospective, who begins to live, or is living in a
group family day care home or family day care home has been convicted of a
crime set forth in subparagraphs (e)(1)(iv)-(v) of this section, such person
may not operate, volunteer in, work in, or live in a child care
program.
(2) Conviction
for a crime other than a mandatory disqualifying offense.
(i) When a clearance conducted pursuant to
this section reveals that a prospective operator, director, employee or
volunteer at a child day care center, small day care center, school-age child
care program, group family day care home or family day care home, as defined in
section 413.2 of this Part, or a person
age 18 or older prospectively living in a group family day care home or family
day care home has been convicted of a crime not set forth in subparagraphs
(e)(1)(iv)-(v) of this section, the office may conduct a safety assessment and
take one or more of the following actions:
(a) deny the application, consistent with
article 23-A of the Correction Law;
(b) direct that such person not be hired,
consistent with article 23-A of the Correction Law;
(c) take any other appropriate steps to
protect the health and safety of the children in care.
(ii) When a clearance conducted pursuant to
this section reveals that an existing operator, director, employee or volunteer
at a child day care center, small day care center, school-age child care
program, group family day care home or family day care home, as defined in
section 413.2 of this Part, or a person
age 18 or older living in a group family day care home or family day care home
has been convicted of a crime not set forth in subparagraphs (e)(1)(iv)-(v) of
this section, the office shall conduct a safety assessment and take one or more
of the following actions:
(a) deny, limit,
suspend, revoke or reject such program's license or registration unless the
office determines, in its discretion, that continued operation will not in any
way jeopardize the health and safety of the children in care;
(b) direct that such person be terminated,
consistent with article 23-A of the Correction Law;
(c) take any other appropriate steps to
protect the health and safety of the children in care.
(3) Pending criminal charge.
(i) When a clearance conducted pursuant to
this section reveals that a prospective operator, director, employee or
volunteer, or person age 18 or older living in a group family day care home or
family day care home has been charged with a crime, the office shall hold the
application in abeyance until the charge is finally resolved.
(ii) When a clearance conducted pursuant to
this section reveals that an existing operator, director, employee, volunteer
or person age 18 or older living in a family day care home or group family day
care home has been charged with a crime, the office shall conduct a safety
assessment and take all appropriate steps to protect the health and safety of
the children in care. The office may suspend such program's license or
registration based on such a charge when necessary to protect the health and
safety of children in care.
(g)
Safety assessment.
A safety assessment performed in accordance with this
section shall include, but not be limited to:
(1) a review of the duties of the person with
the criminal conviction or charge;
(2) the extent to which such person may have
contact with children in the day care facility or program; and
(3) the status and nature of the criminal
conviction or charge.
(h) Any person who the Office determines,
pursuant to this section, should be denied employment or a volunteer position
at a child day care program based on an offense not listed in paragraph (1) of
subdivision (e) of this section and to which Article 23-A of the Correction Law
is applicable, shall have the ability to request a de novo review of the
determination, to be held and completed before the employer is notified of such
determination:Such person shall have reasonable notice concerning the
determination, information regarding how to request a, review of that
determination, and an opportunity to provide any additional information that
such person deems relevant to such determination. Such person may choose
whether the review will be conducted either through submission of written
materials to a hearing officer, or to be heard in person in an administrative
hearing before a hearing officer, or by video conference in an administrative
hearing before a hearing officer if reasonably available. Regardless of the
method in which the review is conducted, where such request is made, the Office
shall also have an opportunity to be heard.
(i) Upon receipt of a criminal history
record, the office 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 grounds
relating to such criminal conviction or pending criminal charge exists for
denying a license, registration, application or employment.
(j)
Notifications.
Where the office or its designee denies or directs a
licensee or registrant to deny an application based on the criminal history
record, the licensee or registrant must notify the applicant that such criminal
history record is the basis of the denial. The office shall also notify such
person that the criminal record check was the basis for the denial of clearance
and shall provide such person with a copy of the results of the national
criminal record check upon which such action was based, a written statement
setting forth the reasons for the denial and a copy of article 23-A of the
Correction Law, and inform such person 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. The office shall not release the
content of such results to any non-public entity.
(k) A child day care licensee or registrant
must inform the office when:
(1) any
applicant who is subject to criminal history record review in accordance with
this section has withdrawn the application or is no longer being considered for
the position for which the person applied;
(2) any employee or volunteer who is subject
to criminal history record review is no longer employed by or volunteering at
the program; and
(3) any person age
18 or older living in a family or group family day care home who is subject to
criminal history record review is no longer living in the residence.
(l) For the purposes of this
section, individuals providing services pursuant to the Federal Individuals
with Disabilities Education Improvement Act (IDEA) part B, IDEA part C, section
504 of the Federal Rehabilitation Act of 1973, or article 89 of the New York
Education Law, may be considered volunteers.
