S T A T E O F N E W Y O R K
________________________________________________________________________
3406
2021-2022 Regular Sessions
I N A S S E M B L Y
January 26, 2021
___________
Introduced by M. of A. GRIFFIN, THIELE, LAVINE -- Multi-Sponsored by --
M. of A. ENGLEBRIGHT -- read once and referred to the Committee on
Education
AN ACT to amend the education law, in relation to background checks and
fingerprinting; and to amend the social services law, in relation to
statewide central registry clearances by construction contractors
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 3 of section 1125 of the education law, as
amended by chapter 363 of the laws of 2018, is amended to read as
follows:
3. "Employee" shall mean any person: (i) who is receiving compensation
from a school or (ii) whose duties involve direct student contact and
(a) who is receiving compensation from any person or entity that
contracts with a school to provide transportation services to children,
or (b) who is an employee of a contracted service provider or worker
placed within the school under a public assistance employment program,
pursuant to title nine-B of article five of the social services law, OR
(C) WHO IS RECEIVING COMPENSATION FROM ANY CONSTRUCTION CONTRACTOR, and
consistent with the provisions of such title for the provision of
services to such school, its students or employees, directly or through
contract.
§ 2. Paragraph (a) of subdivision 30 of section 305 of the education
law, as amended by chapter 630 of the laws of 2006, is amended to read
as follows:
(a) The commissioner, in cooperation with the division of criminal
justice services and in accordance with all applicable provisions of
law, shall promulgate rules and regulations to require the fingerprint-
ing of prospective employees, as defined in section eleven hundred twen-
ty-five of this chapter, of school districts, charter schools [and],
boards of cooperative educational services, AND CONSTRUCTION CONTRACTORS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07121-01-1
A. 3406 2
and authorizing the fingerprinting of prospective employees of nonpublic
and private elementary and secondary schools, and for the use of infor-
mation derived from searches of the records of the division of criminal
justice services and the federal bureau of investigation based on the
use of such fingerprints. The commissioner shall also develop a form for
use by school districts, charter schools, boards of cooperative educa-
tional services, CONSTRUCTION CONTRACTORS, and nonpublic and private
elementary and secondary schools in connection with the submission of
fingerprints that contains the specific job title sought OR THE
CONSTRUCTION OR MAINTENANCE PROJECT ON WHICH THE INDIVIDUAL WILL BE
WORKING, and any other information that may be relevant to consideration
of the applicant. THE COMMISSIONER SHALL ALSO CREATE OR EXPAND THE
FUNCTIONALITY OF INTERNET BASED SYSTEMS TO PROVIDE ACCESS TO
CONSTRUCTION CONTRACTORS UPON APPLICATION OF THE CONSTRUCTION CONTRACTOR
TO THE COMMISSIONER TO ENABLE THEM TO BE ABLE TO REVIEW FINGERPRINT
RESULTS AND SUBSEQUENT ARREST NOTIFICATIONS BASED ON THE FINGERPRINT AND
BACKGROUND CHECK DATA BY LOGGING INTO A PROTECTED WEB PORTAL, ENTERING
IN THE EMPLOYEE NAME AND SOCIAL SECURITY NUMBER, WHICH WOULD PROVIDE
ACCESS TO SEE THE FINGERPRINT RESULTS. The commissioner shall also
establish a form for the recordation of allegations of child abuse in an
educational setting, as required pursuant to section eleven hundred
twenty-six of this chapter. No person who has been fingerprinted pursu-
ant to section three thousand four-b of this chapter or pursuant to
section five hundred nine-cc or twelve hundred twenty-nine-d of the
vehicle and traffic law and whose fingerprints remain on file with the
division of criminal justice services shall be required to undergo fing-
erprinting for purposes of a new criminal history record check. This
subdivision and the rules and regulations promulgated pursuant thereto
shall not apply to a school district within a city with a population of
one million or more.
§ 3. The opening paragraph of paragraph (b) of subdivision 30 of
section 305 of the education law, as amended by chapter 630 of the laws
of 2006, is amended to read as follows:
The commissioner, in cooperation with the division of criminal justice
services, shall promulgate a form to be provided to all such prospective
employees of school districts, charter schools, boards of cooperative
educational services, CONSTRUCTION CONTRACTORS and nonpublic and private
elementary and secondary schools that elect to fingerprint and seek
clearance for prospective employees that shall:
§ 4. Paragraph (d) of subdivision 30 of section 305 of the education
law, as amended by chapter 630 of the laws of 2006, is amended to read
as follows:
(d) The commissioner shall develop forms to be provided to all school
districts, charter schools, boards of cooperative educational services,
CONSTRUCTION CONTRACTORS and to all nonpublic and private elementary and
secondary schools that elect to fingerprint their prospective employees,
to be completed and signed by prospective employees when conditional
appointment or emergency conditional appointment is offered.
§ 5. Subdivision 31 of section 305 of the education law, as added by
chapter 380 of the laws of 2001, is amended to read as follows:
31. The commissioner shall direct that each school district, charter
school, [and] private elementary and secondary school, AND CONSTRUCTION
CONTRACTOR appoint a designated educational official for the purposes
set forth in section 380.90 of the criminal procedure law, subdivision
seventeen of section 301.2 and subdivision three of section 380.1 of the
family court act. In addition, the commissioner shall promulgate rules
A. 3406 3
and regulations, in consultation with the office of court adminis-
tration, to facilitate electronic access by the courts to the names and
addresses of such designated educational officials.
§ 6. Subdivision 1 of section 3035 of the education law, as amended by
chapter 630 of the laws of 2006, is amended to read as follows:
1. [The] PRIOR TO THE AWARDING OF A CONTRACT TO PERFORM SERVICES, THE
commissioner shall submit to the division of criminal justice services
two sets of fingerprints of prospective employees as defined in subdivi-
sion three of section eleven hundred twenty-five of this chapter
received from a school district, charter school or board of cooperative
educational services, CONSTRUCTION CONTRACTORS and of prospective
employees received from nonpublic and private elementary and secondary
schools pursuant to title two of this chapter, and the division of crim-
inal justice services processing fee imposed pursuant to subdivision
eight-a of section eight hundred thirty-seven of the executive law and
any fee imposed by the federal bureau of investigation. The division of
criminal justice services and the federal bureau of investigation shall
forward such criminal history record to the commissioner in a timely
manner. For the purposes of this section, the term "criminal history
record" shall mean a record of all convictions of crimes and any pending
criminal charges maintained on an individual by the division of criminal
justice services and the federal bureau of investigation. All such crim-
inal history records sent to the commissioner pursuant to this subdivi-
sion shall be confidential pursuant to the applicable federal and state
laws, rules and regulations, and shall not be published or in any way
disclosed to persons other than the commissioner, unless otherwise
authorized by law.
§ 7. Subdivision 3 of section 3035 of the education law, as amended by
section 7 of chapter 630 of the laws of 2006, is amended to read as
follows:
3. (a) Clearance. (I) After receipt of a criminal history record from
the division of criminal justice services and the federal bureau of
investigation the commissioner shall promptly notify the appropriate
school district, charter school, board of cooperative educational
services, CONSTRUCTION CONTRACTORS or nonpublic or private elementary or
secondary school whether the prospective employee to which such report
relates is cleared for employment OR FOR ACCESS TO THE PROPOSED PROJECT
TO PERFORM CONSTRUCTION AND/OR MAINTENANCE WORK based upon his or her
criminal history. All determinations to grant or deny clearance for
employment pursuant to this paragraph shall be performed in accordance
with subdivision sixteen of section two hundred ninety-six of the execu-
tive law and article twenty-three-A of the correction law. When the
commissioner denies a prospective employee clearance for employment,
such prospective employee shall be afforded notice and the right to be
heard and offer proof in opposition to such determination in accordance
with the regulations of the commissioner.
(II) NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW TO THE CONTRARY,
INFORMATION REGARDING THE RESULTS OF THE INVESTIGATION OF CURRENT OR
PROSPECTIVE EMPLOYEES OF CONSTRUCTION CONTRACTORS AND SUBSEQUENT CHANGES
IN STATUS RELATED TO SUCH EMPLOYEES SHALL BE TRANSMITTED VIA AN INTER-
NET-BASED SYSTEM MADE AVAILABLE TO CONSTRUCTION CONTRACTORS UPON APPLI-
CATION OF THE CONSTRUCTION CONTRACTOR TO THE COMMISSIONER WHERE, BY
LOGGING INTO A PROTECTED WEB PORTAL AND ENTERING IN THE EMPLOYEE NAME
AND SOCIAL SECURITY NUMBER, AND CONSTRUCTION CONTRACTORS WOULD BE ABLE
TO ACCESS FINGERPRINT RESULTS, WHETHER THE EMPLOYEE FIRST COMPLETED A
FORM PROVIDED TO THEM BY THE CONSTRUCTION CONTRACTORS, OR RECEIVED A
A. 3406 4
FORM PREVIOUSLY FROM A SCHOOL DISTRICT, CHARTER SCHOOL OR BOARD OF COOP-
ERATIVE EDUCATIONAL SERVICES. NOTHING IN THIS SECTION SHALL REQUIRE AN
EMPLOYEE WHO HAS ALREADY SUBMITTED THEIR FINGERPRINTS TO THE COMMISSION-
ER TO HAVE TO SUBMIT THEM AGAIN, SO LONG AS THEY WERE NOT DESTROYED.
(b) Conditional clearance. When the commissioner receives a request
for a determination on the conditional clearance of a prospective
employee, the commissioner, after receipt of a criminal history record
from the division of criminal justice services, shall promptly notify
the prospective employee and the appropriate school district, charter
school, board of cooperative educational services, CONSTRUCTION CONTRAC-
TORS or nonpublic or private elementary or secondary school that the
prospective employee to which such report relates is conditionally
cleared for employment OR WORK ON A CONSTRUCTION OR MAINTENANCE PROJECT
based upon his or her criminal history or that more time is needed to
make the determination. If the commissioner determines that more time is
needed, the notification shall include a good faith estimate of the
amount of additional time needed. Such notification shall be made within
fifteen business days after the commissioner receives the prospective
employee's fingerprints. All determinations to grant or deny conditional
clearance for employment pursuant to this paragraph shall be performed
in accordance with subdivision sixteen of section two hundred ninety-six
of the executive law and article twenty-three-A of the correction law.
§ 8. Subdivision 3 of section 3035 of the education law, as amended by
section 8 of chapter 630 of the laws of 2006, is amended to read as
follows:
3. After receipt of a criminal history record from the division of
criminal justice services and the federal bureau of investigation the
commissioner shall promptly notify the appropriate school district,
charter school, board of cooperative educational services, CONSTRUCTION
CONTRACTOR, or nonpublic or private elementary or secondary school
whether the prospective employee to which such report relates is cleared
for employment OR FOR ACCESS TO A PROPOSED PROJECT SITE TO PERFORM
CONSTRUCTION AND/OR MAINTENANCE WORK based upon his or her criminal
history. All determinations to grant or deny clearance for employment OR
ABILITY TO WORK ON A PROPOSED PROJECT pursuant to this subdivision shall
be performed in accordance with subdivision sixteen of section two
hundred ninety-six of the executive law and article twenty-three-A of
the correction law. When the commissioner denies a prospective employee
clearance for employment, such prospective employee shall be afforded
notice and the right to be heard and offer proof in opposition to such
determination in accordance with the regulations of the commissioner.
§ 9. Section 1125 of the education law is amended by adding a new
subdivision 11 to read as follows:
11. "CONSTRUCTION CONTRACTOR" SHALL MEAN ANY INDIVIDUAL OR ENTITY
SEEKING PERMISSION EITHER THROUGH A BID OR OTHERWISE TO PERFORM
CONSTRUCTION AND/OR MAINTENANCE WORK ON FACILITIES OCCUPIED AT ANY POINT
BY STUDENTS OF THE SCHOOL DISTRICT, CHARTER SCHOOL, BOARD OF COOPERATIVE
EDUCATIONAL SERVICES, OR NONPUBLIC SCHOOL.
§ 10. Subdivision 3 of section 424-a of the social services law, as
amended by section 14-a of part H of chapter 56 of the laws of 2019, is
amended to read as follows:
3. For purposes of this section, the term "provider" or "provider
agency" shall mean: an authorized agency; the office of children and
family services; juvenile detention facilities subject to the certif-
ication of the office of children and family services; programs estab-
lished pursuant to article nineteen-H of the executive law; non-residen-
A. 3406 5
tial or residential programs or facilities licensed or operated by the
office of mental health or the office for people with developmental
disabilities except family care homes; including head start programs
which are funded pursuant to title V of the federal economic opportunity
act of nineteen hundred sixty-four, as amended; early intervention
service established pursuant to section twenty-five hundred forty of the
public health law; preschool services established pursuant to section
forty-four hundred ten of the education law; CONSTRUCTION CONTRACTORS AS
DEFINED IN SUBDIVISION ELEVEN OF SECTION ELEVEN HUNDRED TWENTY-FIVE OF
THE EDUCATION LAW; special act school districts as enumerated in chapter
five hundred sixty-six of the laws of nineteen hundred sixty-seven, as
amended; programs and facilities licensed by the office of [alcoholism
and substance abuse] ADDICTION services AND SUPPORTS; residential
schools which are operated, supervised or approved by the education
department; health homes, or any subcontractor of such health homes, who
contracts with or is approved or otherwise authorized by the department
of health to provide health home services to all those enrolled pursuant
to a diagnosis of a developmental disability as defined in subdivision
twenty-two of section 1.03 of the mental hygiene law and enrollees who
are under twenty-one years of age under section three hundred sixty-
five-l of this chapter, or any entity that provides home and community
based services to enrollees who are under twenty-one years of age under
a demonstration program pursuant to section eleven hundred fifteen of
the federal social security act; publicly-funded emergency shelters for
families with children, provided, however, for purposes of this section,
when the provider or provider agency is a publicly-funded emergency
shelter for families with children, then all references in this section
to the "potential for regular and substantial contact with individuals
who are cared for by the agency" shall mean the potential for regular
and substantial contact with children who are served by such shelter;
and any other facility or provider agency, as defined in subdivision
four of section four hundred eighty-eight of this chapter, in regard to
the employment of staff, or use of providers of goods and services and
staff of such providers, consultants, interns and volunteers.
§ 11. Paragraph (a) of subdivision 2 of section 390-a of the social
services law, as amended by chapter 416 of the laws of 2000, is amended
to read as follows:
(a) review and evaluate the backgrounds of and information supplied by
any person applying to be a child day care center or school-age child
care program employee or volunteer or group family day care assistant, a
provider of family day care or group family day care, or a director of a
child day care center, head start day care center or school-age child
care program OR A CONSTRUCTION CONTRACTOR, OR A CONSTRUCTION CONTRAC-
TOR'S EMPLOYEE WHO SERVICES ANY OF THESE ENTITIES. Such procedures shall
include but not be limited to the following requirements: that the
applicant set forth his or her employment history, provide personal and
employment references; submit such information as is required for
screening with the statewide central register of child abuse and
maltreatment in accordance with the provisions of section four hundred
twenty-four-a of this article; sign a sworn statement indicating wheth-
er, to the best of his or her knowledge, he or she has ever been
convicted of a crime in this state or any other jurisdiction; and
provide his or her fingerprints for submission to the division of crimi-
nal justice services in accordance with the provisions of section three
hundred ninety-b of this title. NOTWITHSTANDING THE PROVISIONS OF THIS
PARAGRAPH, WHERE A PROGRAM HAS PEOPLE WORKING ON THEIR PREMISES THROUGH
A. 3406 6
A CONSTRUCTION CONTRACTOR AS DEFINED IN SUBDIVISION ELEVEN OF SECTION
ELEVEN HUNDRED TWENTY-FIVE OF THE EDUCATION LAW AND SUCH CONSTRUCTION
CONTRACTOR HAS PROPERLY PERFORMED CHECKS ON ITS EMPLOYEES AS A PROVIDER
OR PROVIDER AGENCY UNDER SECTION FOUR HUNDRED TWENTY-FOUR-A OF THIS
CHAPTER, THEN SUCH PROGRAM DOES NOT NEED TO RUN THE CHECK ITSELF ON THE
CONSTRUCTION CONTRACTOR EMPLOYEES WORKING ON THEIR SITE;
§ 12. This act shall take effect immediately; provided however that:
(a) the amendments to section 1125 of the education law made by section
one of this act shall take effect on the same date and in the same
manner as chapter 363 of the laws of 2018, takes effect; (b) the amend-
ments to paragraph (d) of subdivision 30 of section 305 of the education
law made by section four of this act shall not affect the repeal of such
paragraph and shall be deemed repealed therewith; and (c) the amendments
to subdivision 3 of section 3035 of the education law made by section
seven of this act shall be subject to the expiration and reversion of
such subdivision, pursuant to section 12 of chapter 147 of the laws of
2001, as amended, when upon such date the provisions of section eight of
this act shall take effect.