§ 378-a. Access to conviction records by authorized agencies. 1.
Every authorized agency which operates a residential program for
children licensed or certified by the office of children and family
services, and the office of children and family services in relation to
any juvenile justice program it operates, shall request that the justice
center for the protection of people with special needs check, and upon
such request, such justice center shall request and shall be authorized
to receive from the division of criminal justice services and the
federal bureau of investigation criminal history information, as such
phrase is defined in paragraph (c) of subdivision one of section eight
hundred forty-five-b of the executive law concerning each prospective
operator, employee or volunteer of such a residential program who will
have regular and substantial unsupervised or unrestricted physical
contact with children in such program.

(a) Provided however, any authorized agency required to request
criminal history information pursuant to this subdivision that operates
a residential program for foster children that is licensed or certified
by the office of children and family services shall request that the
justice center for the protection of people with special needs check,
and upon such request, such justice center shall request and shall be
authorized to receive from the division of criminal justice services and
the federal bureau of investigation criminal history information, as
such phrase is defined in paragraph (c) of subdivision one of section
eight hundred forty-five-b of the executive law, for every: (i)
prospective employee of such program that is not already required to be
cleared pursuant to the opening paragraph of this subdivision; and (ii)
notwithstanding any other provision of law to the contrary, prior to
April first, two thousand twenty and in accordance with a schedule
developed by the office of children and family services, any person who
is employed in a residential foster care program that has not previously
had a clearance conducted pursuant to this section in connection to such
employment.

(b) For the purposes of this section, "operator" shall include any
natural person with an ownership interest in the authorized agency.

(c) Access to and the use of information obtained pursuant to this
subdivision shall be governed by the provisions of section eight hundred
forty-five-b of the executive law.

1-a. Excluding the authorized agencies authorized to request and
receive criminal history information pursuant to subdivision one of this
section, and subject to the rules and regulations of the division of
criminal justice services, an authorized agency defined in subdivision
ten of section three hundred seventy-one of this title shall have access
to criminal history information, as such phrase is defined in paragraph
(c) of subdivision one of section eight hundred forty-five-b of the
executive law, pertaining to persons who have applied for and are under
active consideration for employment by such authorized agency in
positions where such persons will have the potential for regular and
substantial unsupervised and unrestricted physical contact with children
in the program. Upon receipt of such criminal history information, the
authorized agency shall provide the prospective employee with a copy of
such criminal history information and a copy of article twenty-three-A
of the correction law and inform such prospective employee of his or her
right to seek correction of any incorrect information contained in such
criminal history information pursuant to the regulations and procedures
established by the division of criminal justice services. The authorized
agency shall designate one or two persons in its employ who shall be
authorized to request, receive and review the criminal history
information pursuant to this subdivision, and only such persons and the
prospective employee to which the criminal history information relates
shall have access to such information; provided, however, that such
criminal history information may be disclosed to other personnel
empowered by the agency to make decisions concerning prospective
employees. The authorized agency shall notify the division of criminal
justice services of each person authorized to have access to such
criminal history information pursuant to this subdivision. Except as
otherwise provided in this subdivision, such criminal history
information shall be confidential and any person who willfully permits
the release of such confidential criminal history information to persons
not permitted by this subdivision to receive such information shall be
guilty of a misdemeanor.

2. (a) Notwithstanding any other provision of law to the contrary, and
subject to rules and regulations of the division of criminal justice
services, an authorized agency, as defined in subdivision ten of section
three hundred seventy-one of this title, shall perform a criminal
history record check with the division of criminal justice services
regarding any prospective foster parent or prospective adoptive parent
or, a prospective successor guardian in accordance with paragraph (d) of
subdivision two of section four hundred fifty-eight-b of this article,
and any person over the age of eighteen who is currently residing in the
home of such prospective foster parent, prospective adoptive parent or
prospective successor guardian. Provided, however, that for prospective
foster parents and prospective adoptive parents and other persons over
the age of eighteen in their homes, the checks required by this
paragraph shall be conducted before the foster parent or adoptive parent
is finally certified or approved for the placement of a child. Persons
who are over the age of eighteen residing in the home of a certified or
approved foster parent and 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 foster
parent applies for renewal of his or her certification or approval as a
foster parent. The division of criminal justice services is authorized
to submit fingerprints to the federal bureau of investigation for the
purpose of a nationwide criminal history record check pursuant to and
consistent with public law 92-544 to determine whether such prospective
foster parent, prospective adoptive parent, prospective successor
guardian or person over the age of eighteen currently residing in the
home of such prospective parent or guardian has a criminal history in
any state or federal jurisdiction. The provisions and procedures of this
section, including the criminal history record check of persons over the
age of eighteen who are currently residing in the home of the foster
parent, also shall apply to prospective foster parents certified by the
office of children and family services and to family homes certified by
any other state agency where such family homes care for foster children
in accordance with a memorandum of understanding with the office of
children and family services.

(b) Every authorized agency shall obtain a set of the prospective
foster parent, prospective adoptive parent or prospective successor
guardian's fingerprints and those of any person over the age of eighteen
who currently resides in the home of such prospective foster parent,
prospective adoptive parent or prospective successor guardian, and such
other information as is required by the office of children and family
services and the division of criminal justice services. The authorized
agency shall provide to the applicant blank fingerprint cards and a
description of how the completed fingerprint cards will be used upon
submission to the authorized agency. The authorized agency shall
promptly transmit such fingerprint cards to the office of children and
family services. The office of children and family services shall
promptly submit such fingerprint cards and the processing fee imposed
pursuant to subdivision eight-a of section eight hundred thirty-seven of
the executive law to the division of criminal justice services for its
full search and retain processing. Notwithstanding any other provision
of law to the contrary, the processing fee shall be submitted by the
office of children and family services and no part thereof shall be
charged to the prospective foster parent, prospective adoptive parent,
prospective successor guardian or any person over the age of eighteen
who currently resides in the home of such prospective foster parent,
prospective adoptive parent or prospective successor guardian who
submitted a fingerprint card pursuant to this subdivision.

(c) The division of criminal justice services shall promptly provide
to the office of children and family services a criminal history record,
if any, with respect to the prospective foster parent, prospective
adoptive parent or prospective successor guardian and any other person
over the age of eighteen who resides in the home of the prospective
foster parent, prospective adoptive parent or prospective successor
guardian, or a statement that the individual has no criminal history
record.

(d) 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
offense contained in such criminal history record from any state or
local law enforcement agency or court for the purposes of determining
whether any ground relating to such criminal conviction or pending
criminal charge exists for denying an application.

(e) Except as set forth in paragraph (m) of this section, after
reviewing any criminal history record information provided by the
division of criminal justice services, the office of children and family
services shall promptly notify the authorized agency or other state
agency that:

(1) Notwithstanding any other provision of law to the contrary, an
application for certification or approval of a prospective foster parent
or prospective adoptive parent shall be denied and, in the event of
death or incapacity of a relative guardian, an agreement to provide
payments to a prospective successor guardian pursuant to title ten of
this article shall not be approved pursuant to subparagraph (ii) of
paragraph (b) of subdivision five of section four hundred fifty-eight-b
of this article, as applicable, where a criminal history record of the
prospective foster parent, prospective adoptive parent or prospective
successor guardian, as applicable, reveals a conviction for:

(A) a felony conviction at any time involving: (i) child abuse or
neglect; (ii) spousal abuse; (iii) a crime against a child, including
child pornography; or (iv) a crime involving violence, including rape,
sexual assault, or homicide, other than a crime involving physical
assault or battery; or

(B) a felony conviction within the past five years for physical
assault, battery, or a drug-related offense, unless such offense is
eligible for expungement pursuant to section 160.50 of the criminal
procedure law; or

(2) Notwithstanding any other provision of law to the contrary, a
final determination of an application for certification or approval of a
prospective foster parent or prospective adoptive parent and, in
relation to prospective successor guardians, approval pursuant to
subparagraph (ii) of paragraph (b) of subdivision five of section four
hundred fifty-eight-b of this article shall be held in abeyance whenever
the criminal history record of the prospective foster parent,
prospective adoptive parent or prospective successor guardian, as
applicable, reveals:

(A) a charge for a crime set forth in subparagraph one of this
paragraph which has not been finally resolved; or

(B) a felony conviction that may be for a crime set forth in
subparagraph one of this paragraph. An authorized agency may proceed
with a determination of such application, in a manner consistent with
this subdivision, only upon receiving subsequent notification from the
office of children and family services regarding the status of such
charge or the nature of such conviction; or

(3) consistent with the provisions of article twenty-three-A of the
correction law, an application for certification or approval of a
prospective foster parent or prospective adoptive parent may be denied,
an agreement to provide payments to a prospective successor guardian
pursuant to title ten of this article may not be approved pursuant to
subparagraph (ii) of paragraph (b) of subdivision five of section four
hundred fifty-eight-b of this article, as applicable, where:

(A) a criminal history record of the prospective foster parent,
prospective adoptive parent or prospective successor guardian reveals a
charge or a conviction of a crime other than one set forth in
subparagraph one of this paragraph; or

(B) a criminal history record of any other person over the age of
eighteen who resides in the home of the prospective foster parent,
prospective adoptive parent or prospective successor guardian reveals a
charge or a conviction of any crime; or

(4) Notwithstanding any other provision of law to the contrary, an
application for renewal of the certification or approval of a foster
parent submitted on or after October first, two thousand eight shall be
denied based on the conviction of the foster parent of a crime set forth
in subparagraph one of this paragraph where such conviction occurred on
or after October first, two thousand eight; or

(5) Notwithstanding any other provision of law to the contrary, the
certification or approval of a foster parent, or the approval of an
adoptive parent who has not completed the adoption process, shall be
revoked based on the conviction of the foster parent or the adoptive
parent of a crime set forth in subparagraph one of this paragraph; or

(6) the prospective foster parent, prospective adoptive parent or
prospective successor guardian and any person over the age of eighteen
who is residing in the home of the prospective foster parent,
prospective adoptive parent or prospective successor guardian has no
criminal history record.

(f) Except as otherwise set forth in this paragraph, any notification
by the office of children and family services pursuant to paragraph (e)
of this subdivision shall include a summary of the criminal history
record provided by the division of criminal justice services, including,
but not limited to, the specific crime or crimes for which the
prospective foster parent or parents, adoptive parent or parents or
prospective successor guardian or guardians or any adults over the age
of eighteen living in the home have been charged or convicted, as
applicable. When responding to an inquiry from a voluntary authorized
agency or other non-public agency with respect to the results of a
national criminal history check performed by the federal bureau of
investigation, the office of children and family services shall advise
the voluntary authorized agency or other non-public agency of the
category or categories of crime or crimes and shall not provide the
voluntary authorized agency or other non-public agency with the specific
crime or crimes absent the written consent of the person for whom the
national criminal history check was performed.

(g) When an authorized agency has denied an application or approval in
accordance with the provisions of paragraph (e) of this subdivision, the
authorized agency shall provide to the applicant a written statement
setting forth the reasons for such denial, including, as authorized by
paragraph (f) of this subdivision, the summary of the criminal history
record provided to the authorized agency by the office of children and
family services. The authorized agency shall also provide a description
of the division of criminal justice services' record review process and
any remedial processes provided by the office of children and family
services to any prospective foster parent, prospective adoptive parent
or prospective successor guardian. If the applicant is disqualified
under item (ii) of clause (A) of subparagraph one of paragraph (e) of
this subdivision, then the applicant may apply for relief from the
mandatory disqualification based on the grounds that the offense was not
spousal abuse as that term is defined in paragraph (j) of this
subdivision.

(h) Where a criminal history record of the certified or approved
foster parent, prospective adoptive parent or of any other person over
the age of eighteen who resides in the home of the certified or approved
foster parent or prospective adoptive parent reveals a charge or
conviction of any crime, the authorized agency shall perform a safety
assessment of the conditions in the household. Such assessment shall
include: whether the subject of the charge or conviction resides in the
household; the extent to which such person may have contact with foster
children or other children residing in the household; and the status,
date and nature of the criminal charge or conviction. The authorized
agency shall thereafter take all appropriate steps to protect the health
and safety of such child or children, including, when appropriate, the
removal of any foster child or children from the home. Where the
authorized agency denies the application or revokes the approval or
certification of the foster parent or the prospective adoptive parent in
accordance with the standards set forth in paragraph (e) of this
subdivision, such authorized agency shall remove any foster child or
children from the home of the foster parent or the prospective adoptive
parent.

(i) 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 an authorized
agency pursuant to this subdivision, is confidential and shall not be
available for public inspection; provided, however, nothing herein shall
prevent an authorized agency, the office of children and family services
or other state agency referenced in paragraph (a) of this subdivision
from disclosing criminal history information to any administrative or
judicial proceeding relating to the denial or revocation of a
certification or approval of a foster parent or an adoptive parent or
the removal of the foster child from the home or the failure to approve
a prospective successor guardian pursuant to subparagraph (ii) of
paragraph (b) of subdivision five of section four hundred fifty-eight-b
of this article or the termination of an agreement for payments pursuant
to title ten of this article that is made in accordance with paragraph
(h) of subdivision four of section four hundred fifty-eight-b of this
article. Where there is a pending court case, the authorized agency
which received the criminal history record summary from the office of
children and family services, shall provide a copy of such summary to
the family court or surrogate's court.

(j) For the purposes of this subdivision "spousal abuse" is an offense
defined in section 120.05, 120.10, 121.12 or 121.13 of the penal law
where the victim of such offense was the defendant's spouse; provided,
however, spousal abuse shall not include a crime in which the
prospective foster parent, prospective adoptive parent or prospective
successor guardian, who was the defendant, has received notice pursuant
to paragraph (g) of this subdivision and the office of children and
family services finds after a fair hearing held pursuant to section
twenty-two of this chapter, that he or she was the victim of physical,
sexual or psychological abuse by the victim of such offense and such
abuse was a factor in causing the prospective foster parent, prospective
adoptive parent or prospective successor guardian to commit such
offense.

(k) The office of children and family services shall inform the
division of criminal justice services when a person is no longer
certified or approved as a foster parent or is no longer a prospective
adoptive parent so that the division of criminal justice services may
terminate its retain processing with regard to such person and any
person over the age of eighteen who is residing in the home of the
foster parent or prospective adoptive parent. 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.

(l) The office of children and family services, in consultation with
the division of criminal justice services, shall promulgate regulations
for the purpose of implementing the provisions of this subdivision
relating to the standards for the certification or approval of foster
parents or adoptive parents.

(m)(1) The office of children and family services shall not release
the content of the results of the nationwide criminal history record
check conducted by the federal bureau of investigation in accordance
with this subdivision to an authorized agency, as defined in paragraphs
(a) or (c) of subdivision ten of section three hundred seventy-one of
this title.

(2) For any application made to such an authorized agency under this
subdivision, the office of children and family services shall:

(A) review and evaluate the results of the nationwide criminal history
record check of the prospective foster parent, prospective adoptive
parent and any other person over the age of eighteen who resides in the
home of such applicant in accordance with the standards set forth in
paragraph (e) of this subdivision relating to mandatory disqualifying
convictions, hold in abeyance charges or convictions, and discretionary
charges and convictions; and

(B) based on the results of the nationwide criminal history record
check, inform such authorized agency that the application for
certification or approval of the prospective foster parent or the
prospective adoptive parent either: (i) must be denied; (ii) must be
held in abeyance pending subsequent notification from the office of
children and family services; or (iii) that the office of children and
family services has no objection, solely based on the nationwide
criminal history record check, for the authorized agency to proceed with
a determination on such application based on the standards for
certification or approval of a prospective foster parent or prospective
adoptive parent, as set forth in the regulations of the office of
children and family services.

(3) Where the office of children and family services directs the
authorized agency to deny the application of a prospective foster parent
or a prospective adoptive parent in accordance with this paragraph, the
office of children and family services shall also notify the prospective
foster parent, prospective adoptive parent or other person over the age
of eighteen who resided in the home of the applicant whose criminal
history was the basis for the denial and shall provide such prospective
foster parent, prospective adoptive parent or other person a copy of the
results of the nationwide criminal history record check upon which such
denial was based and a written statement setting forth the reasons for
such denial. If the applicant is disqualified under item (ii) of clause
(A) of subparagraph one of paragraph (e) of this subdivision, then the
applicant may apply for relief from the mandatory disqualification based
on the grounds that the offense was not spousal abuse as that term is
defined in paragraph (j) of this subdivision.

(4) This paragraph does not apply to nationwide criminal history
record checks conducted by the federal bureau of investigation on behalf
of state agencies or authorized agencies, as defined in paragraph (b) of
subdivision ten of section three hundred seventy-one of this title, or
to the results of statewide criminal history record checks conducted by
the division of criminal justice services.