S T A T E   O F   N E W   Y O R K
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                                  5066

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 11, 2011
                               ___________

Introduced  by  M.  of  A.  AMEDORE,  KOLB, TOBACCO, McDONOUGH, CALHOUN,
  BURLING, CROUCH, JOHNS, MURRAY --  Multi-Sponsored  by  --  M.  of  A.
  MALLIOTAKIS,  REILICH,  SALADINO  --  read  once  and  referred to the
  Committee on Children and Families

AN ACT to amend the social  services  law  and  the  executive  law,  in
  relation to day care for children

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The social services law is amended by adding a new  section
378-b to read as follows:
  S  378-B.  CERTIFICATES  AND LICENSES; RECORD ACCESS; PROHIBITIONS. 1.
NOTWITHSTANDING THE PROVISIONS OF ANY LAW, RULE  OR  REGULATION  TO  THE
CONTRARY,  NO  LICENSE,  PERMIT,  CERTIFICATE  OR  REGISTRATION SHALL BE
ISSUED BY THE DEPARTMENT OR ANY AUTHORIZED AGENCY  TO  AN  APPLICANT  TO
OPERATE  A  CHILD  DAY  CARE  CENTER, HEAD START DAY CARE CENTER PROGRAM
FUNDED PURSUANT TO TITLE V OF THE FEDERAL ECONOMIC  OPPORTUNITY  ACT  OF
1964,  SCHOOL AGE CHILD CARE PROGRAM, GROUP FAMILY DAY CARE HOME, FAMILY
DAY CARE HOME, NOR  WHERE  GRANTED,  SHALL  ANY  SUCH  LICENSE,  PERMIT,
CERTIFICATE  OR  REGISTRATION  BE  RENEWED  FOR  ANY SUCH ENTITY, IF THE
APPLICANT AND/OR OPERATOR THEREOF SHALL HAVE BEEN CONVICTED OF A VIOLENT
FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE PENAL  LAW,  OR  SHALL
HAVE  BEEN  CONVICTED  OF A MISDEMEANOR OR FELONY AS DEFINED IN ARTICLES
ONE HUNDRED TWENTY, ONE HUNDRED TWENTY-FIVE,  ONE  HUNDRED  THIRTY,  ONE
HUNDRED  THIRTY-FIVE,  TWO HUNDRED FIVE, TWO HUNDRED TWENTY, TWO HUNDRED
TWENTY-ONE, TWO HUNDRED THIRTY, TWO  HUNDRED  THIRTY-FIVE,  TWO  HUNDRED
FORTY-FIVE,  TWO  HUNDRED  FIFTY-FIVE,  TWO  HUNDRED  SIXTY, TWO HUNDRED
SIXTY-THREE AND TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW.
  2. NO SUCH ENTITY SHALL EMPLOY ANY ASSISTANT OR EMPLOYEE, NOR SHALL IT
ACCEPT ANY PERSON FOR VOLUNTEER ACTIVITY IN ANY  SUCH  ENTITY,  IF  SUCH
ASSISTANT,  EMPLOYEE  OR  VOLUNTEER HAS BEEN CONVICTED OF ANY OFFENSE AS
ENUMERATED IN SUBDIVISION ONE OF THIS SECTION.   EVERY SUCH  ENTITY,  AS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07747-01-1
              

A. 5066                             2

ENUMERATED  IN  SUBDIVISION  ONE OF THIS SECTION,   MAY OBTAIN, WITH THE
CONSENT OF  THE  VOLUNTEER  OR  PROSPECTIVE  VOLUNTEER  OR  EMPLOYEE  OR
PROSPECTIVE  EMPLOYEE  OF SUCH ENTITY, THE CONVICTION RECORDS MAINTAINED
BY  THE  DIVISION OF CRIMINAL JUSTICE SERVICES PERTAINING TO SUCH VOLUN-
TEER OR PROSPECTIVE  VOLUNTEER  OR  EMPLOYEE  OR  PROSPECTIVE  EMPLOYEE;
PROVIDED,  HOWEVER,  THAT CONVICTION RECORDS SHALL BE REQUESTED ONLY FOR
VOLUNTEERS OR PROSPECTIVE VOLUNTEERS, EMPLOYEES OR PROSPECTIVE EMPLOYEES
WHO HAVE DIRECT CONTACT, AS DETERMINED BY  SUCH  ENTITY,  WITH  CHILDREN
SERVED  BY  SUCH  ENTITY.  THE FEE FOR SUCH RECORD SHALL BE PAID BY SUCH
ENTITY.
  3. THE CONVICTION RECORD SHALL BE MARKED "CONFIDENTIAL"  UPON  RECEIPT
BY  THE  PERSON  WHO  HAS REQUESTED SUCH RECORDS. ONLY SUCH PERSON SHALL
HAVE ACCESS TO SUCH CONVICTION RECORD, AND SUCH CONVICTION RECORD  SHALL
AT  ALL  TIMES  BE  MAINTAINED IN A SECURE PLACE IN ORDER TO INSURE SUCH
CONFIDENTIALITY. A PERSON  WHO  WILFULLY  VIOLATES  THE  CONFIDENTIALITY
REQUIRED BY THIS SUBDIVISION SHALL BE GUILTY OF A CLASS E FELONY.
  4.  PRIOR TO REQUESTING A CONVICTION RECORD OF A VOLUNTEER OR PROSPEC-
TIVE VOLUNTEER OR EMPLOYEE OR PROSPECTIVE EMPLOYEE FROM THE DIVISION  OF
CRIMINAL JUSTICE SERVICES, A REPRESENTATIVE OF SUCH ENTITY  SHALL INFORM
ANY  SUCH  PERSON  WHO  WORKS  DIRECTLY  WITH CHILDREN IN ANY ACTIVITIES
AUTHORIZED BY SUCH ENTITY  THAT A REQUEST FOR A  CONVICTION  RECORD  AND
REVIEW  THEREOF  IS REQUIRED IN ORDER FOR SUCH PERSON TO CONTINUE IN THE
SAME CAPACITY OR FOR  SUCH  PROSPECTIVE  VOLUNTEER  OR  EMPLOYEE  TO  BE
ACCEPTED  BY  SUCH ENTITY. SUCH PERSON SHALL SIGN A FORM PROVIDED BY THE
DIVISION OF CRIMINAL JUSTICE SERVICES STATING THAT SUCH PERSON HAS  BEEN
INFORMED  OF  THE  REASON FOR A REQUEST FOR HIS OR HER CONVICTION RECORD
AND CONSENTS TO SUCH REQUEST. SUCH FORM SHALL ACCOMPANY EACH REQUEST FOR
A CONVICTION RECORD MADE BY THE PERSON OF  SUCH  ENTITY  REQUESTING  THE
RECORD.
  5.  AFTER  BEING INFORMED OF THE REQUIREMENT FOR SUCH ENTITY TO OBTAIN
HIS OR HER CONVICTION RECORD AND BEFORE SUCH PERSON GIVES CONSENT TO THE
PROVISION OF SUCH RECORD TO SUCH ENTITY, A PERSON MAY HAVE ACCESS TO HIS
OR HER CONVICTION RECORD AS  MAINTAINED  BY  THE  DIVISION  OF  CRIMINAL
JUSTICE  SERVICES  PURSUANT  TO  THE  PROCEDURES  OF SUCH DIVISION. SUCH
PERSON SHALL BE PROVIDED WITH ALL NECESSARY INFORMATION REGARDING ACCESS
TO SUCH RECORDS BY A REPRESENTATIVE OF SUCH ENTITY.  SUCH  PERSON  SHALL
ALSO  BE PROVIDED BY SUCH DIVISION WITH INFORMATION REGARDING PROCEDURES
FOR SUCH PERSON TO VERIFY THE ACCURACY  OF  SUCH  RECORDS.  SUCH  PERSON
SHALL  NOTIFY  SUCH  ENTITY IF HE OR SHE WISHES TO HAVE ACCESS TO HIS OR
HER CONVICTION RECORD PRIOR TO GIVING CONSENT TO SUCH  ENTITY'S  REQUEST
FOR SUCH RECORD.
  6.  A PROSPECTIVE VOLUNTEER OR EMPLOYEE MAY WITHDRAW FROM THE APPLICA-
TION PROCESS, WHETHER OR NOT HE OR SHE HAS HAD  ACCESS  TO  HIS  OR  HER
CONVICTION  RECORD  AND  WHETHER OR NOT SUCH RECORD HAS BEEN RECEIVED BY
SUCH ENTITY, WITHOUT PREJUDICE. IF THE CONVICTION RECORD OF SUCH  PERSON
HAS  BEEN  RECEIVED BY SUCH ENTITY, THE PERSON DESIGNATED BY SUCH ENTITY
TO HAVE ACCESS TO CONVICTION RECORDS SHALL DESTROY SUCH  RECORD  IF  THE
PROSPECTIVE  VOLUNTEER  OR EMPLOYEE IS NOT HIRED AND/OR ACCEPTED BY SUCH
ENTITY OR WITHDRAWS FROM THE APPLICATION PROCESS.
  7. THE CONVICTION RECORD OF SUCH A PERSON SHALL BE  DESTROYED  BY  THE
PERSON  DESIGNATED  BY  SUCH ENTITY TO HAVE ACCESS TO CONVICTION RECORDS
WHEN SUCH VOLUNTEER OR EMPLOYEE NO LONGER HAS DIRECT CONTACT WITH  CHIL-
DREN SERVED BY SUCH ENTITY.
  8. THE PROVISIONS OF THIS SECTION SHALL NOT, HOWEVER, BE APPLICABLE TO
ANY  PERSON WHO HAS A MINOR CHILD UNDER THE CARE AND SUPERVISION OF SUCH
ENTITY WHERE HE OR SHE VOLUNTEERS OR IS EMPLOYED OR SEEKS EMPLOYMENT.

A. 5066                             3

  9. THE DIVISION OF CRIMINAL JUSTICE  SERVICES  SHALL  RESPOND  TO  ANY
REQUEST FOR A CONVICTION RECORD WHICH IS ACCOMPANIED BY A FORM SIGNED BY
THE  SUBJECT  OF SUCH REQUEST CONSENTING TO THE PROVISION OF SUCH RECORD
MADE PURSUANT TO THIS SECTION WITHIN FOURTEEN DAYS AFTER SUCH INQUIRY IS
RECEIVED.   THE COMMISSIONER OF SUCH DIVISION SHALL PROMULGATE RULES AND
REGULATIONS PROVIDING FOR A HEARING   FOR  A  PROSPECTIVE  VOLUNTEER  OR
VOLUNTEER  OR EMPLOYEE OR PROSPECTIVE EMPLOYEE BEFORE REPRESENTATIVES OF
SUCH DIVISION AND THE DEPARTMENT FOR PURPOSES OF VERIFYING THE  ACCURACY
OF HIS OR HER CONVICTION RECORD AND FOR ACCESS BY SUCH PERSONS TO PERTI-
NENT DOCUMENTS RELATED THERETO.
  10.  FOR  PURPOSES OF THIS SECTION, "CONVICTION RECORD" SHALL MEAN ANY
RECORD MAINTAINED BY  THE  DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  OF
CONVICTIONS OF A CRIME IN VIOLATION OF THE PENAL LAW OR ANY OTHER LAW OF
ANOTHER JURISDICTION WHICH, IF COMMITTED IN THIS STATE, WOULD CONSTITUTE
A CRIME.
  S  2.  Subdivision 8-a of section 837 of the executive law, as amended
chapter 561 of the laws of 2006, is amended to read as follows:
  8-a. Charge a fee when, pursuant to statute or the regulations of  the
division,  it  conducts  a  search  of  its criminal history records and
returns a report thereon in connection with an application  for  employ-
ment  or  for a license or permit OR RETURNS A CONVICTION REPORT THEREON
AS REQUIRED BY SECTION  THREE  HUNDRED  SEVENTY-EIGHT-B  OF  THE  SOCIAL
SERVICES  LAW.    The  division  shall adopt and may, from time to time,
amend a schedule of such fees which shall be in  amounts  determined  by
the  division  to  be  reasonably related to the cost of conducting such
searches and returning reports thereon but, in no event, shall any  such
fee  exceed  twenty-five  dollars  and  an additional surcharge of fifty
dollars. The comptroller is hereby authorized to deposit such fees  into
the  general  fund,  provided,  however, that the monies received by the
division of criminal justice services  for  payment  of  the  additional
surcharge shall be deposited in equal amounts to the general fund and to
the  fingerprint  identification and technology account. Notwithstanding
the foregoing, the division shall not request  or  accept  any  fee  for
searching  its  records and supplying a criminal history report pursuant
to section two hundred fifty-one-b of the general business law  relating
to  participating  in  flight  instruction at any aeronautical facility,
flight school or institution of higher learning.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law provided, however, that the  commissioner  of
the  division  of  criminal  justice services shall promulgate rules and
regulations prior to such effective  date  necessary  to  implement  the
provisions of this act.