N.Y. Comp. Codes R. & Regs. tit. 18 § 413.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 413.4 - Criminal history review and background clearances

(a) The following criminal history review and background clearances shall be conducted pursuant to and consistent with the Child Care and Development Block Grant Act for any prospective operator, director, employee or volunteer at a child day care center, small day care center, school-age child care program, group family day care home or family day care home, as defined in section 413.2 of this Part, and any person age 18 or older living in a prospective, or who begins to live, in a group family day care home or family day care home:

(1) a criminal history record check with the New York State Division of Criminal Justice Services;

(2) a national criminal record check with the Federal Bureau of Investigation;

(3) a search of the New York State Sex Offender Registry; and

(4) a database check of the Statewide Central Register of Child Abuse and Maltreatment in accordance with section 424-a of the Social Services Law.

(b) The following criminal history review and background clearances shall be conducted pursuant to and consistent with the Child Care and Development Block Grant Act in accordance with a schedule developed by the office for any existing operator, director, employee or volunteer at a child day care center, small day care center, school-age child care program, group family day care home or family day care home, and any person age 18 or older living in a group family day care home or family day care home:

(1) all clearances required pursuant to subdivision (a) of this section; and

(2) a search of the National Sex Offender Registry using the National Crime and Information Center.

(c) In addition to the clearances required pursuant to subdivisions (a) and (b) of this section, the following clearances, for which ongoing criminal history results are not already provided, shall be conducted in accordance with a schedule developed by the office for any operator, director, employee or volunteer at a child day care center, small day care center, school-age child care program, group family day care home or family day care home, as defined in section 413.2 of this Part, and any person age 18 or older living or who begins to live in a group family day care home or family day care home, living or who lived in any state other than New York during the preceding 5 years:

(1) a search of the criminal history repository in each state other than New York where such person lives or lived during the preceding five years, unless such state's criminal history record information will be provided as part of the clearance conducted pursuant to paragraph (a)(2) of this section;

(2) a search of any state sex offender registry or repository in each state other than New York where such person lives or lived during the preceding five years, unless such state's sex offender registry information will be provided as part of the clearance conducted pursuant to paragraph (b)(2) of this section; and

(3) a search of the state-based child abuse or neglect repository of any state other than New York where such person lives or lived during the preceding five years.

(d)Process.

(1) Any initial application for a child care license or registration shall include the submission of fingerprint images for any operator, director, employee, or volunteer, and any person age 18 or older living in a group family day care home or family day care home.

(2) Every licensee and registrant shall submit fingerprint images for each prospective director, employee, or volunteer, and any person age 18 or older prospectively living in a group family day care home or family day care home.

(3) The licensee or registrant shall furnish to each prospective director, employee, or volunteer, and any person age 18 or older prospectively living in a group family day care home or family day care home a fingerprint imaging application form and a description of how the completed fingerprint images will be used.

(4) The clearances required pursuant to this section, other than those for which ongoing criminal history results are provided, shall be conducted for any existing operator, director, employee or volunteer at a child day care center, small day care center, school-age child care program, group family day care home or family day care home, as defined in section 413.2 of this Part, and any person age 18 or older living in a group family day care home or family day care home at least once every five years in accordance with a schedule developed by the office.

(5) A prospective director, employee or volunteer may begin to work or volunteer at a child day care center, small day care center, school-age child care program, group family day care home or family day care home after completing either the check described in paragraphs (a)(1) or (2) of this section.

(6) Pending notification of completion of all required background check components in subdivision (a) of this section, a prospective director, employee or volunteer must always be supervised by an individual who received a qualifying result on the background checks described in paragraph (a) of this section within the past five years. A provisional director, employee or volunteer shall not have unsupervised contact with children in care.

(7) A license or registration cannot be issued until the office notifies the program that the operator and director, and every employee, volunteer and person age 18 or older who lives in the home has completed all clearance requirements in this section.

(8) A person who has separated from their role in a child care program within New York State for a period of more than 180 consecutive days is required to submit the clearances pursuant to this section when applying for a role in any child care program.

(e)Ineligibility based on results.

(1) Any person or program required to submit to clearances pursuant to this section shall be deemed ineligible, as such term is defined in paragraph (2) of this subdivision, if such person:

(i) refuses to consent to such clearances;

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

(iii) is registered, or is required to be registered, on a state sex offender registry or repository or the national sex offender registry;

(iv) has been convicted of a felony consisting of:

(a) murder, as described in section 1111 of title 18, United States Code;

(b) child abuse or neglect;

(c) a crime against children, including child pornography;

(d) spousal abuse;

(e) a crime involving rape or sexual assault;

(f) kidnapping;

(g) arson;

(h) physical assault or battery; or

(v) has been convicted of a violent misdemeanor committed as an adult against a child, including child abuse, child endangerment and sexual assault, or of a misdemeanor involving child pornography.

(2) For purposes of this subdivision, the term ineligible shall mean:

(i) The person who engaged in conduct listed in paragraph (1) of this subdivision shall not be permitted to be an operator, director, employee or volunteer at a child day care program subject to the criminal history review and background clearance process.

(ii) A family day care home or group family day care home shall not be permitted to operate if a person age 18 or older lives in the residence and engaged in conduct listed in paragraph (1) of this subdivision.

(f)Actions taken based on results.

(1) Conviction for a mandatory disqualifying offense.

(i) When a clearance conducted pursuant to this section reveals that a prospective or existing operator, director, employee or volunteer at a child day care center, small day care center, school-age child care program, group family day care home or family day care home, as defined in section 413.2 of this Part, or a person age 18 or older living in a prospective, who begins to live, or is living in a group family day care home or family day care home has been convicted of a crime set forth in subparagraphs (e)(1)(iv)-(v) of this section, such person may not operate, volunteer in, work in, or live in a child care program.

(2) Conviction for a crime other than a mandatory disqualifying offense.

(i) When a clearance conducted pursuant to this section reveals that a prospective operator, director, employee or volunteer at a child day care center, small day care center, school-age child care program, group family day care home or family day care home, as defined in section 413.2 of this Part, or a person age 18 or older prospectively living in a group family day care home or family day care home has been convicted of a crime not set forth in subparagraphs (e)(1)(iv)-(v) of this section, the office may conduct a safety assessment and take one or more of the following actions:

(a) deny the application, consistent with article 23-A of the Correction Law;

(b) direct that such person not be hired, consistent with article 23-A of the Correction Law;

(c) take any other appropriate steps to protect the health and safety of the children in care.

(ii) When a clearance conducted pursuant to this section reveals that an existing operator, director, employee or volunteer at a child day care center, small day care center, school-age child care program, group family day care home or family day care home, as defined in section 413.2 of this Part, or a person age 18 or older living in a group family day care home or family day care home has been convicted of a crime not set forth in subparagraphs (e)(1)(iv)-(v) of this section, the office shall conduct a safety assessment and take one or more of the following actions:

(a) deny, limit, suspend, revoke or reject such program's license or registration unless the office determines, in its discretion, that continued operation will not in any way jeopardize the health and safety of the children in care;

(b) direct that such person be terminated, consistent with article 23-A of the Correction Law;

(c) take any other appropriate steps to protect the health and safety of the children in care.

(3) Pending criminal charge.

(i) When a clearance conducted pursuant to this section reveals that a prospective operator, director, employee or volunteer, or person age 18 or older living in a group family day care home or family day care home has been charged with a crime, the office shall hold the application in abeyance until the charge is finally resolved.

(ii) When a clearance conducted pursuant to this section reveals that an existing operator, director, employee, volunteer or person age 18 or older living in a family day care home or group family day care home has been charged with a crime, the office shall conduct a safety assessment and take all appropriate steps to protect the health and safety of the children in care. The office may suspend such program's license or registration based on such a charge when necessary to protect the health and safety of children in care.

(g)Safety assessment.

A safety assessment performed in accordance with this section shall include, but not be limited to:

(1) a review of the duties of the person with the criminal conviction or charge;

(2) the extent to which such person may have contact with children in the day care facility or program; and

(3) the status and nature of the criminal conviction or charge.

(h) Any person who the Office determines, pursuant to this section, should be denied employment or a volunteer position at a child day care program based on an offense not listed in paragraph (1) of subdivision (e) of this section and to which Article 23-A of the Correction Law is applicable, shall have the ability to request a de novo review of the determination, to be held and completed before the employer is notified of such determination:Such person shall have reasonable notice concerning the determination, information regarding how to request a, review of that determination, and an opportunity to provide any additional information that such person deems relevant to such determination. Such person may choose whether the review will be conducted either through submission of written materials to a hearing officer, or to be heard in person in an administrative hearing before a hearing officer, or by video conference in an administrative hearing before a hearing officer if reasonably available. Regardless of the method in which the review is conducted, where such request is made, the Office shall also have an opportunity to be heard.

(i) Upon receipt of a criminal history record, the office 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 grounds relating to such criminal conviction or pending criminal charge exists for denying a license, registration, application or employment.

(j)Notifications.

Where the office or its designee denies or directs a licensee or registrant to deny an application based on the criminal history record, the licensee or registrant must notify the applicant that such criminal history record is the basis of the denial. The office shall also notify such person that the criminal record check was the basis for the denial of clearance and shall provide such person with a copy of the results of the national criminal record check upon which such action was based, a written statement setting forth the reasons for the denial and a copy of article 23-A of the Correction Law, and inform such person 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. The office shall not release the content of such results to any non-public entity.

(k) A child day care licensee or registrant must inform the office when:

(1) any applicant who is subject to criminal history record review in accordance with this section has withdrawn the application or is no longer being considered for the position for which the person applied;

(2) any employee or volunteer who is subject to criminal history record review is no longer employed by or volunteering at the program; and

(3) any person age 18 or older living in a family or group family day care home who is subject to criminal history record review is no longer living in the residence.

(l) For the purposes of this section, individuals providing services pursuant to the Federal Individuals with Disabilities Education Improvement Act (IDEA) part B, IDEA part C, section 504 of the Federal Rehabilitation Act of 1973, or article 89 of the New York Education Law, may be considered volunteers.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 413.4

Amended, New York State Register December 3, 2014/Volume XXXVI, Issue 48, eff. 12/3/2014

Amended New York State Register June 3, 2020/Volume XLII, Issue 22, eff. 6/3/2020

Amended New York State Register April 21, 2021/Volume XLIII, Issue 16, eff. 4/21/2021