N.Y. Comp. Codes R. & Regs. tit. 18 § 415.15

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

Section 415.15 - Criminal history review and background clearances

(a) The requirements of this section shall not apply to any relative-only in-home child care provider or relative-only family child care provider.

(b)In-home child care.

(1) 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 in-home child care provider, employee or volunteer:

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

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

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

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

(2) 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 in-home child care provider, employee or volunteer:

(i) all clearances required pursuant to paragraph (1) of this subdivision; and

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

(3) In addition to the clearances required pursuant to paragraphs (1) and (2) of this subdivision, 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 in-home child care provider, employee or volunteer who lives or lived in any state other than New York during the preceding five years:

(i) 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 subparagraph (1)(ii) of this subdivision;

(ii) 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 subparagraph (2)(ii) of this subdivision; and

(iii) 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.

(c)Legally-exempt family child care.

(1) 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 family child care provider, employee, volunteer or family child care household member age 18 and older not related in any way to all children in care:

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

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

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

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

(2) 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 family child care provider, employee, volunteer or family child care household member age 18 and older not related in any way to all child(ren) in care:

(i) all clearances required pursuant to paragraph (1) of this subdivision; and

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

(3) In addition to the clearances required pursuant to paragraphs (1) and (2) of this subdivision, 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 family child care provider, employee, volunteer or family child care household member age 18 and older not related in any way to all child(ren) in care who lives or lived in any state other than New York during the preceding five years:

(iii) 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)Legally-exempt group child care.

(1) 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 legally-exempt group child care director, employee or volunteer:

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

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

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

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

(2) 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 legally-exempt group child care director, employee or volunteer:

(i) all clearances required pursuant to paragraph (1) of this subdivision; and

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

(3) In addition to the clearances required pursuant to paragraphs (1) and (2) of this subdivision, 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 legally-exempt group child care director, employee or volunteer who lives or lived in any state other than New York during the preceding five years:

(iii) 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.

(e)Process.

(1) In accordance with the requirements for those persons pursuant to subdivisions (b), (c) and (d) of this section, any application to enroll shall include the submission of fingerprint images for any provider, employee, volunteer or family child care household member required to submit to criminal history review and background clearances.

(2) Every provider shall submit fingerprint images for any prospective employee, volunteer, or family child care household member required to submit to criminal history review and background clearances.

(3) The enrollment agency shall furnish a fingerprint imaging application form and a description of how the completed fingerprint images will be used to each provider, employee, volunteer or family child care household member required to submit to criminal history review and background clearances.

(4) The clearances required pursuant to this section, other than those for which on-going criminal history results are provided, shall be conducted at least once every five years in accordance with a schedule developed by the office.

(5) A prospective employee or volunteer may begin to work or volunteer at an enrolled legally-exempt group child care program after completing either the check described in subparagraphs (d)(1)(i) or (ii) of this section. Pending completion of all background check components in paragraph (d)(1) of this section, such person must be supervised at all times by an individual who received a qualifying result on the background checks described in this subdivision within the past five years.

(6) For informal child care programs a prospective provider cannot be enrolled, and a prospective employee, volunteer or family child care household member age 18 or older not related in any way to all children in care cannot work, volunteer, or live in an enrolled legally-exempt child care program until the office notifies the provider that every required person has completed all clearance requirements in this section.

(7) A person who has separated from his or her 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.

(f)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 a provider, director, employee or volunteer at a child care program.

(ii) A legally-exempt provider shall not be permitted to provide care if a family child care household member age 18 or older not related in any way to all children in care engaged in conduct listed in paragraph (1) of this subdivision.

(g)Actions taken based on criminal history review and background clearance results.

(1) Conviction for a mandatory disqualifying offense.

(i) When a clearance conducted pursuant to this section reveals that a prospective or existing legally-exempt provider, director, employee, volunteer or family child care household member age 18 or older has been convicted of a crime set forth in subparagraphs (f)(1)(iv) and (v) of this section, such person may not be enrolled, volunteer in, work in, or live in a child care program.

(2) Conviction for crime other than a mandatory disqualifier.

(i) When a clearance conducted pursuant to this section reveals that a prospective legally-exempt provider, director, employee, volunteer or family child care household member age 18 or older has been convicted of a crime not set forth in subparagraphs (f)(1)(iv) and (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 legally-exempt provider, director, employee, volunteer or family child care household member age 18 or older has been convicted of a crime not set forth in subparagraphs (f)(1)(iv) and (v) of this section, the office shall conduct a safety assessment and take one or more of the following actions:

(a) terminate or reject such program's enrollment unless the office determines, in its discretion, that continued enrollment 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 legally-exempt provider, director, employee, volunteer, or family child care household member age 18 or older 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 legally-exempt provider, director, employee, volunteer or family child care household member age 18 or older has been charged with a crime, the office shall conduct a safety assessment of the program and take all appropriate steps to protect the health and safety of the children in care. The office may terminate such program's enrollment based on such a charge when necessary to protect the health and safety of children in care.

(h)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 child care program; and

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

(i) Any person who the Office determines, pursuant to this section, should be denied enrollment, a volunteer position, and/or employment at a child care program based on an offense not listed in paragraph (1) of subdivision (f) 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, the Office shall also have an opportunity to be heard.

(j) 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 ground relating to such criminal conviction or pending criminal charge exists for denying enrollment or employment.

(k)Notifications.

Where the office or its designee denies an application based on the criminal history record, the enrollment agency 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.

(l) A legally-exempt child care provider must inform the office or its designee 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 in accordance with this section is no longer employed by or volunteering at the program; and

(3) any household member age 18 or older who is subject to criminal history record review is no longer residing in the residence.

(m) After completion of required inquiries as provided for in this section, the office shall notify the applicant and program whether the applicant is authorized or unauthorized to care for children.

(n) 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 § 415.15

Adopted 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