Prohibits certain enumerated child care facilities from employing or using as volunteers, persons convicted of certain enumerated offenses; allows the facilities to have access to criminal records of its volunteers and employees and prospective volunteers and employees.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A164
SPONSOR: Santabarbara TITLE OF BILL:
An act to amend the social services law and the executive law, in
relation to day care for children
PURPOSE OR GENERAL IDEA OR BILL:
To prohibit certain child care facilities from employing felons and
individuals convicted of certain misdemeanors and providing *criminal
record access for certain child care entities. SUMMARY OF PROVISIONS:
The Social Services Law is amended by adding a new Section 378b subdivi-
sion 8-a of Section 837 of the Executive Law, as amended by Chapter 103
of the Laws of 1981, is amended.
JUSTIFICATION:
New York State's child care system is one of the largest in the nation.
Despite these impressive numbers, a great need for the expansion of
child day care services in the state still exists, as the demand for
care far exceeds its supply. While the escalating level of demand is
common to all areas of the state, in both middleclass and poor neighbor-
hoods, it continues to be extremely prevalent in rural areas. A number
of recent initiatives have sought to develop, support and expand the
quality, accessibility and availability of child day care. Unquestion-
ably, more work in this area needs to be done. Inherent to such efforts
is ensuring the highest possible level of safety in New York State's
child care settings. Current state law addresses the child care safety
issue in an inadequate fashion. It requires the screening of registered
or licensed day care providers solely by way of the state's Child Abuse
and Maltreatment Registry (in conjunction with the Hotline), and allows
the licensing authority, to issue a license to a child day care provider
even if the provider has a criminal record or thought to be devoid of
"good moral character". While the law provides exceptions in certain
cases (such as if there is a direct relationship between the previous
offense and the licensed activity, or if license issuance would present
imminent danger to the public health or to an individual's safety or
welfare), they are clearly overly permissive, and therefore, inadequate.
Indeed knowledge of a criminal conviction of a potential or current day
care program operator is not necessarily enough to be the basis to deny,
limit, suspend, revoke, reject or terminate a license or registration.
This is also true even if the Department is informed of a violent felony
offense conviction of an operator, assistant, employee or volunteer.
PRIOR LEGISLATIVE HISTORY:
1993-94: A.4658 - referred to Children and Families 1995-96: A.546 -
referred to Children & Families 1997-98: A.4200 - referred to Children
& Families1999-00: A.2171 - referred to Children & Families 2001-02:
A.785 - referred to Children & Families 2003-04: A.1244 - referred to
Children & Families 2005-06: A.2914 - referred to Children & Families
2007-08: A.1992 - referred to Children &Families /A.9583 - held for
consideration in Children & Families 2009-10:A.4136 - held for consider-
ation in Children & Families 2011-12: A.5066 -held for consideration in
Children & Families 2013-14: A.5843 - referred to Children & Families;
2015-16 - referred to children and families 2017-18 A.203 - referred to
children and families 2019-20 A.1366 - referred to children and families
2021-2022 - A.01446 referred to children and families
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
The state will realize some revenue, which should not exceed the costs
of processing the requisite records.
EFFECTIVE DATE:
The 120th day after it shall have become a law, provided that the
Commissioner of the Division of Criminal Justice Services shall promul-
gate the necessary implementing rules and regulations prior to this
effective date.
STATE OF NEW YORK
________________________________________________________________________
164
2023-2024 Regular Sessions
IN ASSEMBLY(Prefiled)
January 4, 2023
___________
Introduced by M. of A. SANTABARBARA -- read once and referred to the
Committee on Children and Families
AN ACT to amend the social services law and the executive law, in
relation to day care for children
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The social services law is amended by adding a new section
2 378-b to read as follows:
3 § 378-b. Certificates and licenses; record access; prohibitions. 1.
4 Notwithstanding the provisions of any law, rule or regulation to the
5 contrary, no license, permit, certificate or registration shall be
6 issued by the department or any authorized agency to an applicant to
7 operate a child day care center, head start day care center program
8 funded pursuant to title V of the federal economic opportunity act of
9 1964, school age child care program, group family day care home, family
10 day care home, nor where granted, shall any such license, permit,
11 certificate or registration be renewed for any such entity, if the
12 applicant and/or operator thereof shall have been convicted of a violent
13 felony offense as defined in section 70.02 of the penal law, or shall
14 have been convicted of a misdemeanor or felony as defined in articles
15 one hundred twenty, one hundred twenty-five, one hundred thirty, one
16 hundred thirty-five, two hundred five, two hundred twenty, two hundred
17 twenty-one, two hundred thirty, two hundred thirty-five, two hundred
18 forty-five, two hundred fifty-five, two hundred sixty, two hundred
19 sixty-three and two hundred sixty-five of the penal law.
20 2. No such entity shall employ any assistant or employee, nor shall it
21 accept any person for volunteer activity in any such entity, if such
22 assistant, employee or volunteer has been convicted of any offense as
23 enumerated in subdivision one of this section. Every such entity, as
24 enumerated in subdivision one of this section, may obtain, with the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01908-01-3
A. 164 2
1 consent of the volunteer or prospective volunteer or employee or
2 prospective employee of such entity, the conviction records maintained
3 by the division of criminal justice services pertaining to such volun-
4 teer or prospective volunteer or employee or prospective employee;
5 provided, however, that conviction records shall be requested only for
6 volunteers or prospective volunteers, employees or prospective employees
7 who have direct contact, as determined by such entity, with children
8 served by such entity. The fee for such record shall be paid by such
9 entity.
10 3. The conviction record shall be marked "confidential" upon receipt
11 by the person who has requested such records. Only such person shall
12 have access to such conviction record, and such conviction record shall
13 at all times be maintained in a secure place in order to insure such
14 confidentiality. A person who wilfully violates the confidentiality
15 required by this subdivision shall be guilty of a class E felony.
16 4. Prior to requesting a conviction record of a volunteer or prospec-
17 tive volunteer or employee or prospective employee from the division of
18 criminal justice services, a representative of such entity shall inform
19 any such person who works directly with children in any activities
20 authorized by such entity that a request for a conviction record and
21 review thereof is required in order for such person to continue in the
22 same capacity or for such prospective volunteer or employee to be
23 accepted by such entity. Such person shall sign a form provided by the
24 division of criminal justice services stating that such person has been
25 informed of the reason for a request for his or her conviction record
26 and consents to such request. Such form shall accompany each request for
27 a conviction record made by the person of such entity requesting the
28 record.
29 5. After being informed of the requirement for such entity to obtain
30 his or her conviction record and before such person gives consent to the
31 provision of such record to such entity, a person may have access to his
32 or her conviction record as maintained by the division of criminal
33 justice services pursuant to the procedures of such division. Such
34 person shall be provided with all necessary information regarding access
35 to such records by a representative of such entity. Such person shall
36 also be provided by such division with information regarding procedures
37 for such person to verify the accuracy of such records. Such person
38 shall notify such entity if he or she wishes to have access to his or
39 her conviction record prior to giving consent to such entity's request
40 for such record.
41 6. A prospective volunteer or employee may withdraw from the applica-
42 tion process, whether or not he or she has had access to his or her
43 conviction record and whether or not such record has been received by
44 such entity, without prejudice. If the conviction record of such person
45 has been received by such entity, the person designated by such entity
46 to have access to conviction records shall destroy such record if the
47 prospective volunteer or employee is not hired and/or accepted by such
48 entity or withdraws from the application process.
49 7. The conviction record of such a person shall be destroyed by the
50 person designated by such entity to have access to conviction records
51 when such volunteer or employee no longer has direct contact with chil-
52 dren served by such entity.
53 8. The provisions of this section shall not, however, be applicable to
54 any person who has a minor child under the care and supervision of such
55 entity where he or she volunteers or is employed or seeks employment.
A. 164 3
1 9. The division of criminal justice services shall respond to any
2 request for a conviction record which is accompanied by a form signed by
3 the subject of such request consenting to the provision of such record
4 made pursuant to this section within fourteen days after such inquiry is
5 received. The commissioner of such division shall promulgate rules and
6 regulations providing for a hearing for a prospective volunteer or
7 volunteer or employee or prospective employee before representatives of
8 such division and the department for purposes of verifying the accuracy
9 of his or her conviction record and for access by such persons to perti-
10 nent documents related thereto.
11 10. For purposes of this section, "conviction record" shall mean any
12 record maintained by the division of criminal justice services of
13 convictions of a crime in violation of the penal law or any other law of
14 another jurisdiction which, if committed in this state, would constitute
15 a crime.
16 § 2. Subdivision 8-a of section 837 of the executive law, as amended
17 by chapter 561 of the laws of 2006, is amended to read as follows:
18 8-a. Charge a fee when, pursuant to statute or the regulations of the
19 division, it conducts a search of its criminal history records and
20 returns a report thereon in connection with an application for employ-
21 ment or for a license or permit or returns a conviction report thereon
22 as required by section three hundred seventy-eight-b of the social
23 services law. The division shall adopt and may, from time to time,
24 amend a schedule of such fees which shall be in amounts determined by
25 the division to be reasonably related to the cost of conducting such
26 searches and returning reports thereon but, in no event, shall any such
27 fee exceed twenty-five dollars and an additional surcharge of fifty
28 dollars. The comptroller is hereby authorized to deposit such fees into
29 the general fund, provided, however, that the monies received by the
30 division of criminal justice services for payment of the additional
31 surcharge shall be deposited in equal amounts to the general fund and to
32 the fingerprint identification and technology account. Notwithstanding
33 the foregoing, the division shall not request or accept any fee for
34 searching its records and supplying a criminal history report pursuant
35 to section two hundred fifty-one-b of the general business law relating
36 to participating in flight instruction at any aeronautical facility,
37 flight school or institution of higher learning.
38 § 3. This act shall take effect on the one hundred twentieth day after
39 it shall have become a law. Effective immediately, the addition, amend-
40 ment and/or repeal of any rule or regulation necessary for the implemen-
41 tation of this act on its effective date are authorized to be made and
42 completed on or before such effective date.
