Current through Register Vol. 46, No. 39, September 25, 2024
(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;
(d) spousal
abuse;
(e) a crime involving rape
or sexual assault;
(f)
kidnapping;
(g) arson;
(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.
