Current through Register Vol. 46, No. 39, September 25, 2024
(a) The requirements of this section shall
not apply to any relative-only in-home child care provider or relative-only
family child care provider.
(b)
In-home child care.
(1) 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 in-home child care provider, employee or volunteer:
(i) a criminal history record check with the
New York State Division of Criminal Justice Services;
(ii) a national criminal record check with
the Federal Bureau of Investigation;
(iii) a search of the New York State Sex
Offender Registry;
(iv) a database
check of the Statewide Central Register of Child Abuse and Maltreatment in
accordance with section 424-a of the Social Services
Law.
(2) 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 in-home
child care provider, employee or volunteer:
(i) all clearances required pursuant to
paragraph (1) of this subdivision; and
(ii) a search of the National Sex Offender
Registry using the National Crime and Information Center.
(3) In addition to the clearances required
pursuant to paragraphs (1) and (2) of this subdivision, 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 in-home child care provider, employee or volunteer who lives or
lived in any state other than New York during the preceding five years:
(i) 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
subparagraph (1)(ii) of this subdivision;
(ii) 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 subparagraph (2)(ii) of this subdivision; and
(iii) 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.
(c)
Legally-exempt family child
care.
(1) 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 family child care provider, employee, volunteer or family child
care household member age 18 and older not related in any way to all children
in care:
(i) a criminal history record check
with the New York State Division of Criminal Justice Services;
(ii) a national criminal record check with
the Federal Bureau of Investigation;
(iii) a search of the New York State Sex
Offender Registry;
(iv) a database
check of the Statewide Central Register of Child Abuse and Maltreatment in
accordance with section 424-a of the Social Services
Law.
(2) 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 family
child care provider, employee, volunteer or family child care household member
age 18 and older not related in any way to all child(ren) in care:
(i) all clearances required pursuant to
paragraph (1) of this subdivision; and
(ii) a search of the National Sex Offender
Registry using the National Crime and Information Center.
(3) In addition to the clearances required
pursuant to paragraphs (1) and (2) of this subdivision, 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 family child care provider, employee, volunteer or family child
care household member age 18 and older not related in any way to all child(ren)
in care who lives or lived in any state other than New York during the
preceding five years:
(i) 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 subparagraph (1)(ii) of this subdivision;
(ii) 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 subparagraph (2)(ii) of this subdivision; and
(iii) 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)
Legally-exempt group child
care.
(1) 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 legally-exempt group child care director, employee or volunteer:
(i) a criminal history record check with the
New York State Division of Criminal Justice Services;
(ii) a national criminal record check with
the Federal Bureau of Investigation;
(iii) a search of the New York State Sex
Offender Registry;
(iv) a database
check of the Statewide Central Register of Child Abuse and Maltreatment in
accordance with section 424-a of the Social Services
Law.
(2) 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
legally-exempt group child care director, employee or volunteer:
(i) all clearances required pursuant to
paragraph (1) of this subdivision; and
(ii) a search of the National Sex Offender
Registry using the National Crime and Information Center.
(3) In addition to the clearances required
pursuant to paragraphs (1) and (2) of this subdivision, 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 legally-exempt group child care director, employee or volunteer
who lives or lived in any state other than New York during the preceding five
years:
(i) 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
subparagraph (1)(ii) of this subdivision;
(ii) 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 subparagraph (2)(ii) of this subdivision; and
(iii) 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.
(e)
Process.
(1) In accordance with the requirements for
those persons pursuant to subdivisions (b), (c) and (d) of this section, any
application to enroll shall include the submission of fingerprint images for
any provider, employee, volunteer or family child care household member
required to submit to criminal history review and background
clearances.
(2) Every provider
shall submit fingerprint images for any prospective employee, volunteer, or
family child care household member required to submit to criminal history
review and background clearances.
(3) The enrollment agency shall furnish a
fingerprint imaging application form and a description of how the completed
fingerprint images will be used to each provider, employee, volunteer or family
child care household member required to submit to criminal history review and
background clearances.
(4) The
clearances required pursuant to this section, other than those for which
on-going criminal history results are provided, shall be conducted at least
once every five years in accordance with a schedule developed by the
office.
(5) A prospective employee
or volunteer may begin to work or volunteer at an enrolled legally-exempt group
child care program after completing either the check described in subparagraphs
(d)(1)(i) or (ii) of this section. Pending completion of all background check
components in paragraph (d)(1) of this section, such person must be supervised
at all times by an individual who received a qualifying result on the
background checks described in this subdivision within the past five
years.
(6) For informal child care
programs a prospective provider cannot be enrolled, and a prospective employee,
volunteer or family child care household member age 18 or older not related in
any way to all children in care cannot work, volunteer, or live in an enrolled
legally-exempt child care program until the office notifies the provider that
every required person has completed all clearance requirements in this
section.
(7) A person who has
separated from his or her 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.
(f)
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 a
provider, director, employee or volunteer at a child care program.
(ii) A legally-exempt provider shall not be
permitted to provide care if a family child care household member age 18 or
older not related in any way to all children in care engaged in conduct listed
in paragraph (1) of this subdivision.
(g)
Actions taken based on criminal
history review and background clearance results.
(1) Conviction for a mandatory disqualifying
offense.
(i) When a clearance conducted
pursuant to this section reveals that a prospective or existing legally-exempt
provider, director, employee, volunteer or family child care household member
age 18 or older has been convicted of a crime set forth in subparagraphs
(f)(1)(iv) and (v) of this section, such person may not be enrolled, volunteer
in, work in, or live in a child care program.
(2) Conviction for crime other than a
mandatory disqualifier.
(i) When a clearance
conducted pursuant to this section reveals that a prospective legally-exempt
provider, director, employee, volunteer or family child care household member
age 18 or older has been convicted of a crime not set forth in subparagraphs
(f)(1)(iv) and (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 legally-exempt provider, director,
employee, volunteer or family child care household member age 18 or older has
been convicted of a crime not set forth in subparagraphs (f)(1)(iv) and (v) of
this section, the office shall conduct a safety assessment and take one or more
of the following actions:
(a) terminate or
reject such program's enrollment unless the office determines, in its
discretion, that continued enrollment 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 legally-exempt provider, director,
employee, volunteer, or family child care household member age 18 or older 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 legally-exempt provider, director,
employee, volunteer or family child care household member age 18 or older has
been charged with a crime, the office shall conduct a safety assessment of the
program and take all appropriate steps to protect the health and safety of the
children in care. The office may terminate such program's enrollment based on
such a charge when necessary to protect the health and safety of children in
care.
(h)
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 child care program; and
(3) the status and nature of the criminal
conviction or charge.
(i) Any person who the Office determines,
pursuant to this section, should be denied enrollment, a volunteer position,
and/or employment at a child care program based on an offense not listed in
paragraph (1) of subdivision (f) 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, the Office shall also have an
opportunity to be heard.
(j) 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 ground relating to such criminal conviction or pending
criminal charge exists for denying enrollment or employment.
(k)
Notifications.
Where the office or its designee denies an application
based on the criminal history record, the enrollment agency 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.
(l) A legally-exempt
child care provider must inform the office or its designee 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 in accordance with
this section is no longer employed by or volunteering at the program;
and
(3) any household member age 18
or older who is subject to criminal history record review is no longer residing
in the residence.
(m)
After completion of required inquiries as provided for in this section, the
office shall notify the applicant and program whether the applicant is
authorized or unauthorized to care for children.
(n) 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.
