S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9593
 
                           I N  A S S E M B L Y
 
                              March 17, 2022
                                ___________
 
 Introduced  by  M. of A. PAULIN, DICKENS, ENGLEBRIGHT, GALEF, GOTTFRIED,
   GRIFFIN, THIELE, DeSTEFANO, McDONOUGH, MIKULIN, MONTESANO -- read once
   and referred to the Committee on Children and Families
 
 AN ACT to amend the social services law, in relation to including legal-
   ly-exempt providers in criminal history review and  background  clear-
   ances of child care providers

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 2, 3, 3-a, 7 and 10 of section  390-b  of  the
 social  services  law,  subdivisions 2, 3 and 3-a as added by section 9,
 subdivision 7 as amended by section 11 and subdivision 10 as amended  by
 section  12  of  part H of chapter 56 of the laws of 2019 and paragraphs
 (a), (b) and (c) of subdivision 3-a as amended by chapter 92 of the laws
 of 2021, are amended and a new subdivision  1-b  is  added  to  read  as
 follows:
   1-B.  FOR PURPOSES OF THIS SECTION, THE TERM "LEGALLY-EXEMPT PROVIDER"
 MEANS  A PROGRAM IN A FACILITY, OTHER THAN A  RESIDENCE,  IN WHICH CHILD
 CARE IS PROVIDED ON A REGULAR BASIS AND IS NOT REQUIRED TO BE   LICENSED
 BY   OR   REGISTERED   WITH   THE OFFICE  OR LICENSED BY THE CITY OF NEW
 YORK.  LEGALLY-EXEMPT PROVIDERS INCLUDE, BUT ARE NOT LIMITED TO:
   (A) NURSERY SCHOOLS AND PROGRAMS FOR PRE-SCHOOL-AGED CHILDREN OPERATED
 BY NON-PROFIT AGENCIES OR ORGANIZATIONS OR PRIVATE PROPRIETARY  AGENCIES
 WHICH PROVIDE SERVICES FOR THREE OR LESS HOURS PER DAY;
   (B)  CHILD CARE PROGRAMS CARING FOR NOT MORE THAN SIX SCHOOL-AGE CHIL-
 DREN  DURING  NON-SCHOOL  HOURS.  FOR  PURPOSES  OF  THIS  SUBPARAGRAPH,
 "SCHOOL-AGED CHILDREN" MEANS CHILDREN UNDER THIRTEEN YEARS   OF AGE  WHO
 ARE ENROLLED IN KINDERGARTEN OR A HIGHER GRADE;
   (C)  CHILD  CARE  PROGRAMS CARING FOR TODDLERS FROM EIGHTEEN MONTHS TO
 THIRTY-SIX MONTHS OF AGE FOR THREE OR LESS HOURS PER DAY; AND
   (D) CHILD CARE PROGRAMS CARING FOR INFANTS UP TO  EIGHTEEN  MONTHS  OF
 AGE FOR THREE OR LESS HOURS PER DAY.
   2.  In  relation  to  any  child  day care program [and], any enrolled
 legally-exempt provider, AND ANY LEGALLY-EXEMPT PROVIDER:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14711-01-2
              

 A. 9593                             2
 
   (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 OR A LEGALLY-EXEMPT
 PROVIDER;
   (b) notwithstanding any other provision of law to the contrary,  prior
 to October first, two thousand twenty, all clearances listed in subdivi-
 sion  one of this section that have not previously been conducted pursu-
 ant to paragraph (a) of this subdivision and for which on-going criminal
 history results are not already provided, shall be conducted in  accord-
 ance  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 OR  A  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  indi-
 vidual 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:
 A. 9593                             3

   (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  A  LEGAL-
 LY-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-ex-
 empt provider OR A LEGALLY-EXEMPT PROVIDER; or
   (3) be an enrolled legally exempt provider OR A LEGALLY-EXEMPT PROVID-
 ER; or
   (ii)  in relation to child day care programs [or], any enrolled legal-
 ly-exempt providers OR ANY 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 eligi-
 ble 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 OR ANY 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  OR 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 legal-
 ly-exempt provider OR ANY  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 OR ANY LEGALLY-EXEMPT PROVIDERS, where a clear-
 A. 9593                             4
 
 ance conducted pursuant to this section reveals a conviction for a crime
 other than one set forth in subparagraph (iv) of paragraph (a) of subdi-
 vision  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 OR ANY 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 subdi-
 vision 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  A 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 OR A LEGALLY-EX-
 EMPT  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 unsu-
 pervised contact with  children  of  a  child  day  care  program  [or],
 enrolled  legally-exempt  provider OR A 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 unsuper-
 A. 9593                             5
 
 vised 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.
   7.  Where  the  office of children and family services or its designee
 denies or directs a child day care or an enrolled legally-exempt provid-
 er 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, direc-
 tor,  employee,  assistant,  legally  exempt  provider,   LEGALLY-EXEMPT
 PROVIDER,  OR 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.
   10. A child day care [or], enrolled legally-exempt provider OR  LEGAL-
 LY-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.
   § 2. This act shall take effect immediately.