§ 390-b. Criminal history review and background clearances of child
care providers, generally.

1. Notwithstanding any other provision of law to the contrary, and
subject to rules and regulations of the office of children and family
services and, where applicable, the division of criminal justice
services, the following clearances shall be conducted for entities
specified in subdivision two of this section in the time and manner as
required by this section:

(a) a criminal history record check with the division of criminal
justice services;

(b) a search of the criminal history repository in each state other
than New York where such person resides or resided during the preceding
five years, if applicable unless such state's criminal history record
information will be provided as part of the results or the clearance
conducted pursuant to paragraph (c) of this subdivision;

(c) a national criminal record check with the federal bureau of
investigation; the division of criminal justice services is directed 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 113-186 to determine whether such persons
shall have a criminal history in any state or federal jurisdiction;

(d) a search of the New York state sex offender registry;

(e) a search of any state sex offender registry or repository in each
state other than New York where such person resides or resided during
the preceding five years, if applicable unless such state's sex offender
registry information will be provided as part of the clearance conducted
pursuant to paragraph (f) of this subdivision;

(f) a search of the national sex offender registry using the national
crime and information center, established under the Adam Walsh child
protection and safety act of 2006 (42 U.S.C. 16901 et seq.);

(g) a database check of the statewide central register of child abuse
and maltreatment in accordance with section four hundred twenty-four-a
of this article; and

(h) a search of a state-based child abuse or neglect repository of any
state other than New York where such person resides or resided during
the preceding five years; if applicable.

1-a. For purposes of this section, and in accordance with federal law,
the term "enrolled legally-exempt provider" shall refer to a person who
meets the definition of "enrolled legally-exempt provider" as defined in
paragraph (g) of subdivision one of section three hundred ninety of this
title and who is not an individual who is related to all children for
whom child care services are provided.

2. In relation to any child day care program and any enrolled
legally-exempt provider:

(a) the clearances required pursuant to paragraphs (a), (c), (d) and
(g) of subdivision one of this section shall be conducted for:

(i) every prospective volunteer with the potential for unsupervised
contact with children in care;

(ii) every applicant to become an enrolled legally-exempt provider;

(iii) every prospective employee, director or operator of such a
program or provider; and

(iv) every individual eighteen years of age and over residing or who
begins to reside in a home where services are or will be provided in a
family or group family setting; and

(v) every individual eighteen years of age and over residing or who
begins to reside in a home where services are or will be provided who
are not related in any way to all children receiving services as or will
be provided by an enrolled legally exempt provider;

(b) notwithstanding any other provision of law to the contrary, prior
to October first, two thousand twenty, all clearances listed in
subdivision one of this section that have not previously been conducted
pursuant to paragraph (a) of this subdivision and for which on-going
criminal history results are not already provided, shall be conducted in
accordance with a schedule developed by the office of children and
family services, for all:

(i) existing volunteers with the potential for unsupervised contact
with children in care;

(ii) existing caregivers for an enrolled legally exempt provider;

(iii) existing employees, directors and operators of any such program
or provider; and

(iv) every individual eighteen years of age and over residing or who
begins to reside in a home where services are or will be provided in a
family or group family setting; and

(v) every individual eighteen years of age and over residing or who
begins to reside in a home where services are or will be provided who
are not related in any way to all children receiving services as or will
be provided by an enrolled legally exempt provider;

(c) notwithstanding any other provision of law to the contrary, the
clearances required pursuant to this section other than those for which
on-going criminal history results are provided, shall be conducted for a
person listed in subparagraphs (i), (ii), (iii) and (iv) of paragraph
(b) of this subdivision at least once every five years in accordance
with a schedule developed by the office of children and family services.

3. (a) Notwithstanding any other provision of law to the contrary, in
relation to the clearances required pursuant to this section, an
individual or a program or provider shall be deemed ineligible, as such
term is defined in paragraph (b) of this subdivision, if such
individual:

(i) refuses to consent to such clearance;

(ii) knowingly makes a materially false statement in connection with
such a clearance;

(iii) is registered, or is required to be registered, on a state sex
offender registry or repository or the national sex offender registry
established under the Adam Walsh child protection and safety act of 2006
(42 U.S.C. 16901 et seq.); or

(iv) has been convicted of a crime enumerated in subparagraph (E) or
clauses (i) through (viii) of subparagraph (D) of paragraph (1) of
subdivision (C) of 42 U.S.C. 9858f.

(b) For purpose of this subdivision, the term "ineligible" shall mean:

(i) the individual who engaged in conduct listed in paragraph (a) of
this subdivision shall not be permitted to:

(1) operate, direct, be the caregiver for, or be employed by a child
day care program or an enrolled legally-exempt provider; or

(2) be a volunteer with the potential for unsupervised contact with
children in a child day care program or with an enrolled legally-exempt
provider; or

(3) be an enrolled legally exempt provider; or

(ii) in relation to child day care programs or any enrolled
legally-exempt providers, where child care is, or is proposed to be
provided, to a child in a home setting where such child does not reside,
such program or provider shall not be eligible to operate or to be
enrolled to serve children receiving child care subsidies pursuant to
title five-C of this article, if an individual over the age of eighteen
who is not related in any way to all children for whom child care
services are or will be provided, resides in the household where child
care is, or is proposed to be provided, engaged in conduct listed in
paragraph (a) of this subdivision.

3-a. (a) In relation to child day care programs and any enrolled
legally-exempt provider, when a clearance conducted pursuant to this
section reveals that any existing operator, director, caregiver, or
person over the age of eighteen who is not related in any way to all
children for whom child care services are or will be provided, that
resides in a home where child care is provided in a home setting where
the child does not reside has been convicted of a crime other than one
set forth in subparagraph (iv) of paragraph (a) of subdivision three of
this section, and unless such crime is eligible for expungement pursuant
to section 160.50 of the criminal procedure law, 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, and may deny, limit, suspend, revoke or reject
such program's license or registration or terminate or reject such
program's enrollment, as applicable, unless the office of children and
family services, determines in its discretion, that continued operation
by the child day care program or enrolled legally-exempt provider will
not in any way jeopardize the health, safety or welfare of the children
cared for in the program or by the provider.

(b) In relation to child day care programs and any enrolled
legally-exempt provider, when a clearance conducted pursuant to this
section reveals that any existing employee or volunteer with the
potential for unsupervised contact with children has been convicted of a
crime other than one set forth in subparagraph (iv) of paragraph (a) of
subdivision three of this section, and unless such crime is eligible for
expungement pursuant to section 160.50 of the criminal procedure law,
the office of children of 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 may direct the program or provider to terminate the
employee or volunteer based on such a conviction, consistent with
article twenty-three-A of the correction law.

(c) (i) In relation to any child day care programs and any enrolled
legally-exempt providers, where a clearance conducted pursuant to this
section reveals a conviction for a crime other than one set forth in
subparagraph (iv) of paragraph (a) of subdivision three of this section,
and unless such crime is eligible for expungement pursuant to section
160.50 of the criminal procedure law, for any prospective employee or
volunteer, the office of children and family services may direct that
such person not be hired, as applicable, based on such a conviction,
consistent with article twenty-three-A of the correction law.

(ii) In relation to any child day care program and any enrolled
legally-exempt provider, when a clearance conducted pursuant to this
section reveals a conviction for a crime other than one set forth in
subparagraph (iv) of paragraph (a) of subdivision three of this section,
and unless such crime is eligible for expungement pursuant to section
160.50 of the criminal procedure law, for any prospective caregiver
seeking enrollment, or applicant to be a director or operator, the
office of children and family services may deny the application or
enrollment, consistent with article twenty-three-A of the correction
law.

(d) (i) Where a clearance conducted pursuant to this section reveals
that an applicant to be the operator or director of a child day care
program, or applicant to be a caregiver, or anyone who is not related in
any way to all children for whom child care services will be provided,
resides in the home over the age of eighteen where child day care is
proposed to be provided to children in a home-based setting has been
charged with a crime, the office of children and family services shall
hold the application in abeyance until the charge is finally resolved.

(ii) Where a clearance conducted pursuant to this section reveals that
the current operator or director of a child day care program, or any
person over the age of eighteen who is not related in any way to all
children for whom child care services will be provided, that resides in
a home where child day care is provided has been charged with a 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 children in the program. The office of children and
family services may suspend a license or registration or terminate
enrollment based on such a charge when necessary to protect the health
and safety of children in the program.

(iii) Where a clearance conducted pursuant to this section reveals
that an existing caregiver, volunteer or an existing employee of an
enrolled legally-exempt provider or any person over the age of eighteen
that resides in a home where the child care is provided by an enrolled
legally-exempt provider in a home setting where the child does not
reside, has been charged with a crime, the office of children and family
services shall take one or more of the following steps:

(A) Conduct a safety assessment; or

(B) Take all appropriate steps to protect the health and safety of
children in the program.

(iv) Where a clearance conducted pursuant to this section reveals that
an applicant to be an employee or volunteer with the potential for
unsupervised contact with children of a child day care program or
enrolled legally-exempt provider has been charged with a crime, the
office shall hold the application in abeyance until the charge is
finally resolved.

(v) Where a clearance conducted pursuant to this section reveals that
a current employee, or current volunteer with the potential for
unsupervised contact with children of a child day care program has been
charged with a 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.

3-b. All persons who are subjected to a criminal history and
background clearance and safety assessment pursuant to this section who
the office of children and family services determines: (i) should be
denied enrollment, employment, or the ability to volunteer pursuant to a
background clearance analysis performed by the office of children and
family services, and (ii) where such denial is not based on an offense
listed in paragraph (a) of subdivision three of this section, shall have
the ability to request a de novo review of the article twenty-three-a of
the correction law determination in an administrative hearing before an
administrative law judge, to be held and completed before the present
employer is notified of such clearance determination. Such person shall
have reasonable notice concerning the determination, and information
regarding how to request a hearing to review that determination, and an
opportunity to provide any additional information that such person deems
relevant to such determination. Such person may choose to be heard in
person, by video conference if reasonably available, or through
submission of written materials. Where such request is made, the office
of children and family services shall also have an opportunity to be
heard.

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 office of children and family services shall pay any required
processing fee for a criminal history or sex offender clearance pursuant
to this section. The office of children and family services shall
promptly submit fingerprints obtained pursuant to this section and such
processing fee to the division of criminal justice services.

7. Where the office of children and family services or its designee
denies or directs a child day care or an enrolled legally-exempt
provider to deny an application based on the criminal history record;
(a) the provider must notify the applicant that such record is the basis
of the denial; and (b) the office of children and family services shall
also notify as the case may be, such current or prospective operator,
director, employee, assistant, legally exempt provider, volunteer with
the potential for unsupervised contact with children or other person
eighteen years of age or older, who resides in the home where care is
provided, other than the child's home, that the criminal record check
was the basis for the denial of clearance and shall provide such
individual with a copy of the results of the national criminal record
check upon which such denial was based together with a written statement
setting forth the reasons for such denial, as well as a copy of article
twenty-three-A of the correction law and inform such individual 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.

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. (a) 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
person that receives a clearance pursuant to this section, is
confidential and shall not be available for public inspection; provided,
however, nothing herein shall prevent the office of children and family
services from disclosing criminal history information or the individual
from disclosing his or her 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. Unauthorized disclosure of such
records or reports shall be subject to civil penalties in accordance
with the provisions of subdivision eleven of section three hundred
ninety of this title.

(b) 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 any non-public entity.

10. A child day care or enrolled legally-exempt 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.

11. 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, provided however, that the city of New York
shall require that such child day care centers meet the requirements of
any federal laws and regulations pertaining to the child care
development and block grant and the related federally approved plans of
the state of New York.