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.
Last modified: February 3, 2019