S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  10256

                          I N  A S S E M B L Y

                             March 12, 2010
                               ___________

Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
  tee on Children and Families

AN ACT to amend the social services law, in relation to requiring filing
  with the office of children and  family  services  by  nursery  school
  operators  and  authorizing  certain nursery schools to submit finger-
  prints of applicants for the purpose of a search of  criminal  history
  records of the division of criminal justice services

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 390 of the social services law, as added by chapter
750 of the laws of 1990, paragraphs (d) and (e)  of  subdivision  1  and
paragraph (b) of subdivision 12 as amended by chapter 587 of the laws of
1997,  subparagraphs  (i)  and  (ii)  of paragraph (d) of subdivision 2,
paragraphs (a), (c) and (d) of subdivision 3, paragraph (a) of  subdivi-
sion  4,  subdivision  10,  paragraphs  (a) and (b) of subdivision 11 as
amended, paragraphs (e) and (f) of subdivision 3 as relettered, subdivi-
sion 2-a and paragraphs (c) and (d) of subdivision 11 as added by  chap-
ter 416 of the laws of 2000, paragraph (a) of subdivision 7 and subdivi-
sion  13 as amended by chapter 160 of the laws of 2003, paragraph (c) of
subdivision 12 as added by chapter 319 of the laws of 2006, and subdivi-
sion 8-a, as added by chapter 354 of the laws of  2009,  is  amended  to
read as follows:
  S  390. Child day care AND NURSERY SCHOOLS; license [or], registration
OR FILING required. 1. Definitions.  (a) (i) "Child day care" shall mean
care for a child on a regular basis provided away from the child's resi-
dence for less than twenty-four hours per day by someone other than  the
parent,  step-parent,  guardian,  or relative within the third degree of
consanguinity of the parents or step-parents of such child.
  (ii) Child day care shall not refer to care provided in:
  (A) a day camp, as defined in the state sanitary code;
  (B) an after-school program operated  for  the  purpose  of  religious
education, sports, or recreation;
  (C) a facility:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10741-02-0
              

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  (1)  providing  day  services under an operating certificate issued by
the [department] OFFICE;
  (2)  providing  day treatment under an operating certificate issued by
the office of mental health or office of mental retardation and develop-
mental disabilities; or
  (D) a kindergarten, pre-kindergarten, [or nursery school for  children
three years of age or older,] or after-school program for children oper-
ated by a public school district or by a private school or academy which
is  providing  elementary  or secondary education or both, in accordance
with  the  compulsory  education  requirements  of  the  education  law,
provided  that  the kindergarten, pre-kindergarten, [nursery school,] or
after school program is located on the  premises  or  campus  where  the
elementary or secondary education is provided.
  (b)  "Child day care provider" shall mean any individual, association,
corporation, partnership, institution or agency whose activities include
providing child day care or operating a home or facility where child day
care is provided.
  (c) "Child day care center" shall mean any program or facility  caring
for  children for more than three hours per day per child in which child
day care is provided by a child day care provider except those  programs
operating  as  a  group  family day care home as such term is defined in
paragraph (d) of this subdivision, a family day care home, as such  term
is  defined in paragraph (e) of this subdivision, and a school-age child
care program, as such term is defined in paragraph (f) of this  subdivi-
sion.
  (d) "Group family day care home" shall mean a program caring for chil-
dren for more than three hours per day per child in which child day care
is  provided  in a family home for seven to ten children of all ages, or
up to twelve children where all of such children are over two  years  of
age,  except  for those programs operating as a family day care home, as
such term is defined in paragraph (e) of this  subdivision,  which  care
for  seven  or  eight  children.  A  group  family day care provider may
provide child day care services to two additional children if such addi-
tional children are of school age and  such  children  receive  services
only  before  or after the period such children are ordinarily in school
or during school lunch periods, or  school  holidays,  or  during  those
periods  of  the  year in which school is not in session. There shall be
one caregiver for every two children under two years of age in the group
family home. A group family day care home must have at least one assist-
ant to the operator present when child day care  is  being  provided  to
seven  or  more  children. This assistant shall be selected by the group
family day care operator and shall meet the  qualifications  established
for such position by the regulations of the [department] OFFICE.
  (e)  "Family  day  care home" shall mean a program caring for children
for more than three hours per day per child in which child day  care  is
provided  in  a family home for three to six children. A family day care
provider may, however, care for seven or eight children at any one  time
if  no  more  than  six of the children are less than school age and the
school-aged children receive care primarily before or after  the  period
such  children are ordinarily in school, during school lunch periods, on
school holidays, or during those periods of the year in which school  is
not  in  session  in accordance with the regulations of the [department]
OFFICE and the [department]  OFFICE  inspects  such  home  to  determine
whether the provider can care adequately for seven or eight children.
  (f)  "School age child care" shall mean a program caring for more than
six school-aged children who are under thirteen years of age or who  are

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incapable  of caring for themselves. Such programs shall be in operation
consistent with  the  local  school  calendar.  School  age  child  care
programs shall offer care during the school year to an enrolled group of
children  at  a  permanent  site  before  or  after  the period children
enrolled in such program are ordinarily in school or during school lunch
periods and may also provide such care  on  school  holidays  and  those
periods of the year in which school is not in session.
  (G) "NURSERY SCHOOL" SHALL MEAN ANY PROGRAM OR FACILITY OPERATED BY AN
INDIVIDUAL, ASSOCIATION, CORPORATION, PARTNERSHIP, INSTITUTION, OR AGEN-
CY,  NOT  INCLUDING THE PARENT, STEPPARENT, GUARDIAN, OR RELATIVE WITHIN
THE THIRD DEGREE OF CONSANGUINITY,  WHICH  PROVIDES  EARLY  CARE  AND/OR
EDUCATION  TO  THREE  OR MORE PRESCHOOL CHILDREN FOR THREE OR LESS HOURS
PER DAY PER CHILD. MORE THAN ONE ADULT SHALL BE AVAILABLE AT  ALL  TIMES
WHEN CHILDREN ARE PRESENT AT A NURSERY SCHOOL PROGRAM.
  (H) "PRESCHOOL CHILD" SHALL MEAN A CHILD OF FIVE YEARS OF AGE OR LESS.
  (I) "OFFICE" SHALL MEAN THE OFFICE OF CHILDREN AND FAMILY SERVICES.
  2.  (a)  Child  day care centers caring for seven or more children and
group family day care programs, as defined in subdivision  one  of  this
section,  shall  obtain a license from the [department] OFFICE and shall
operate in accordance with the terms of such license and the regulations
of the [department] OFFICE.
  (b) Family day care homes, child day care centers caring for at  least
three  but fewer than seven children, and school-age child care programs
shall register with the [department] OFFICE and shall operate in compli-
ance with the regulations of the [department] OFFICE.
  (B-1) NURSERY SCHOOLS CARING FOR AT LEAST THREE  CHILDREN  SHALL  FILE
WITH  THE OFFICE AND SHALL OPERATE IN COMPLIANCE WITH THE REGULATIONS OF
THE OFFICE.
  (c) Any child day care provider  not  required  to  obtain  a  license
pursuant  to  paragraph  (a) of this subdivision or to register with the
[department] OFFICE pursuant to paragraph (b) of  this  subdivision  may
register with the [department] OFFICE.
  (d)  (i) The office [of children and family services] shall promulgate
regulations for licensure and for registration of  child  day  care  AND
FILING  FOR  NURSERY  SCHOOLS  pursuant  to this section. Procedures for
obtaining a license or registration or renewing a license shall  include
a satisfactory inspection of the facility by the office [of children and
family  services]  prior  to  issuance of the license or registration or
renewal of the license.
  (ii) (A) Registration shall be valid for a period of up to two  years,
so  long  as  the provider remains in compliance with applicable law and
regulations during such period.
  (B) After initial registration by the child  day  care  provider,  the
office [of children and family services] shall not accept any subsequent
registration by such provider, unless:
  (1)  such  provider  has  met  the  training requirements set forth in
section three hundred ninety-a of this title;
  (2) such provider has met the requirements of  section  three  hundred
ninety-b of this title relating to criminal history screening;
  (3)  such  provider has complied with the requirements of section four
hundred twenty-four-a of this article; and
  (4) the office [of children  and  family  services]  has  received  no
complaints  about  the  home,  center,  or program alleging statutory or
regulatory violations, or, having received such complaints,  the  office
[of  children  and  family  services]  has  determined, after inspection
pursuant to paragraph (a) of subdivision three of this section, that the

A. 10256                            4

home, center, or program is operated in compliance with applicable stat-
utory and regulatory requirements.
  (C)  Where the office [of children and family services] has determined
that a registration should not be continued because the requirements  of
clause  (B) of this subparagraph have not been satisfied, the office [of
children and family services] may terminate  the  registration.  If  the
office  [of  children and family services] does not terminate the regis-
tration, the office [of children and family services] shall inspect  the
home or program before acknowledging any subsequent registration.  Where
the home or program has failed to meet the requirements of this section,
the  office  [of children and family services] may reject any subsequent
registration of a provider. Nothing herein shall prohibit the office [of
children and family services] from terminating or  suspending  registra-
tion  pursuant  to  subdivision ten of this section where the office [of
children and family services] determines that termination or  suspension
is necessary.
  (iv)  Child day care providers who have been issued a license OR NURS-
ERY SCHOOL OPERATORS WHO HAVE FILED WITH THE OFFICE shall openly display
such license OR OFFICE VERIFICATION OF THE FILING  in  the  facility  or
home for which the license OR FILING is issued. Child day care providers
who  have registered OR FILED with the [department] OFFICE shall provide
proof of registration OR FILING upon request.
  (e) Notwithstanding any other provision of this section, where a child
is cared for by a parent, guardian or relative within the  third  degree
of  consanguinity of the parent of such child and such person simultane-
ously provides child day care for other children, only the  other  chil-
dren  shall  be  considered  in  determining whether such person must be
registered, FILED or licensed, provided that such person is not  caring,
in total, for more than eight children.
  2-a. (a) The office [of children and family services] shall promulgate
regulations  which  establish  minimum  quality program requirements for
licensed and registered child day care homes, programs  and  facilities.
Such  requirements  shall include but not be limited to (i) the need for
age appropriate activities, materials and equipment  to  promote  cogni-
tive,  educational,  social, cultural, physical, emotional, language and
recreational development of children in care  in  a  safe,  healthy  and
caring environment (ii) principles of childhood development (iii) appro-
priate  staff/child  ratios  for family day care homes, group family day
care homes, school age day care programs and day care centers,  provided
however  that  such  staff/child ratios shall not be less stringent than
applicable staff/child ratios as set forth in part  four  hundred  four-
teen, four hundred sixteen, four hundred seventeen or four hundred eigh-
teen  of title eighteen of the New York code of rules and regulations as
of January first, two thousand (iv) appropriate levels of supervision of
children in care (v) minimum standards for sanitation, health, infection
control, nutrition, buildings and  equipment,  safety,  security  proce-
dures,  first  aid,  fire  prevention, fire safety, evacuation plans and
drills, prevention of child abuse and maltreatment, staff qualifications
and training, record keeping, and child behavior management.
  (b) The use of electronic monitors as a sole means of  supervision  of
children  in  day care shall be prohibited, except that electronic moni-
tors may be used in family day care homes  and  group  family  day  care
homes as an indirect means of supervision where the parents of any child
to  be  supervised have agreed in advance to the use of such monitors as
an indirect means of  supervision  and  the  use  of  such  monitors  is
restricted to situations where the children so supervised are sleeping.

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  (c) No child less than six weeks of age may be cared for by a licensed
or  registered  day  care  provider, except in extenuating circumstances
where prior approval for care of such children has  been  given  by  the
office  [of children and family services]. Extenuating circumstances for
the  purposes  of  this  section shall include but not be limited to the
medical or health needs of the parent or child, or the economic hardship
of the parent.
  3. (a) The office [of children and family services] may make announced
or unannounced inspections of the records and premises of any child  day
care  provider,  whether  or not such provider has a license from, or is
registered with, the office  [of  children  and  family  services].  The
office   [of  children  and  family  services]  shall  make  unannounced
inspections of the records and premises of any child day  care  provider
OR  NURSERY  SCHOOL  OPERATOR  within  fifteen days after the office [of
children and family services] receives a complaint that, if true,  would
indicate  such provider OR OPERATOR does not comply with the regulations
of the office [of  children  and  family  services]  or  with  statutory
requirements.  If  the  complaint  indicates  that there may be imminent
danger to the children, the office [of  children  and  family  services]
shall  investigate the complaint no later than the next day of operation
of the provider OR  OPERATOR.    The  office  [of  children  and  family
services] may provide for inspections through the purchase of services.
  (b)  Where  inspections  have  been  made and violations of applicable
statutes or regulations have been found, the [department]  OFFICE  shall
advise  the  child  day care provider OR OPERATOR in writing, within ten
days, of the  violations  and  require  the  provider  to  correct  such
violations.  If  the  child day care provider OR NURSERY SCHOOL OPERATOR
fails to correct such violations within thirty days  after  notice,  the
[department]  OFFICE  may act pursuant to subdivisions ten and eleven of
this section.
  (c) (i) The office [of children and family services] shall establish a
toll-free statewide telephone number to receive  inquiries  about  child
day  care homes, programs and facilities and complaints of violations of
the requirements of this section or regulations promulgated  under  this
section.  The  office  [of children and family services] shall develop a
system for  investigation,  which  shall  include  inspection,  of  such
complaints. The office [of children and family services] may provide for
such  investigations  through purchase of services. The office [of chil-
dren and family services] shall develop a process for  publicizing  such
toll-free  telephone  number  to  the  public  for  making  inquiries or
complaints about child day care homes, programs or facilities.
  (ii) Information to be maintained and available to the public  through
such toll-free telephone number shall include, but not be limited to:
  (A)  current  license and registration status of child day care homes,
programs and facilities including whether a license or  registration  is
in effect or has been revoked or suspended; and
  (B)  child  care  resource  and  referral  programs providing services
pursuant to title five-B of this article and other  resources  known  to
the  office  [of children and family services] which relate to child day
care homes, programs and facilities in the state.
  (iii) Upon written request identifying a  particular  child  day  care
home,  program or facility, the office [of children and family services]
shall provide the information set forth below. The office  [of  children
and  family services] may charge reasonable fees for copies of documents
provided, consistent with the provisions of article six  of  the  public

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officers  law.  The  information available pursuant to this clause shall
be:
  (A)  the results of the most recent inspection for licensure or regis-
tration and any subsequent inspections by the office  [of  children  and
family services];
  (B) complaints filed against child day care homes, programs or facili-
ties  which  describes  the  nature  of the complaint and states how the
complaint was resolved, including the status of the office [of  children
and  family  services]  investigation,  the  steps  taken to rectify the
complaint, and the penalty, if any, imposed; and
  (C) child day care homes, programs or facilities which have  requested
or  received  a  waiver  from any applicable rule or regulation, and the
regulatory requirement which was waived.
  (iv) Nothing in this paragraph shall be construed to require or permit
the disclosure either orally or in writing of any  information  that  is
confidential pursuant to law.
  (d)  Where  investigation  or inspection reveals that a child day care
provider which must be licensed or registered is  not,  the  office  [of
children  and  family services] shall advise the child day care provider
in writing that the provider is in violation of the licensing or  regis-
tration  requirements and shall take such further action as is necessary
to cause the provider to comply with the  law,  including  directing  an
unlicensed or unregistered provider to cease operation. In addition, the
office  [of  children and family services] shall require the provider to
notify the parents or guardians of  children  receiving  care  from  the
provider that the provider is in violation of the licensing or registra-
tion  requirements  and  shall require the provider to notify the office
[of children and family services] that the provider has done  so.    Any
provider  who is directed to cease operations pursuant to this paragraph
shall be entitled to a hearing before the office [of children and family
services]. If the provider requests a hearing to contest  the  directive
to  cease operations, such hearing must be scheduled to commence as soon
as possible but in no event later than thirty days after the receipt  of
the request by the office [of children and family services]. The provid-
er  may  not operate the center, home or program after being directed to
cease operations, regardless of whether a hearing is requested.  If  the
provider  does  not cease operations, the office [of children and family
services] may impose a civil penalty pursuant to subdivision  eleven  of
this section, seek an injunction pursuant to section three hundred nine-
ty-one of this title, or both.
  (e)  (i)  Where  an  authorized  agency  is subsidizing child day care
pursuant to any provision of this chapter,  the  authorized  agency  may
submit  to  the  [department]  OFFICE justification for a need to impose
additional requirements upon child day care  providers  and  a  plan  to
monitor compliance with such additional requirements. No such additional
requirements  or  monitoring may be imposed without the written approval
of the [department] OFFICE.
  (ii) An authorized agency may refuse to allow a child day care provid-
er who is not in compliance with this  section  and  regulations  issued
hereunder  or  any  approved  additional  requirements of the authorized
agency to provide child day care to the child. In  accordance  with  the
plan  approved  by  the  [department] OFFICE, an authorized agency shall
have the right to make  announced  or  unannounced  inspections  of  the
records  and  premises  of any provider who provides care for such chil-
dren, including the right to make inspections prior to subsidized  chil-
dren receiving care in a home where the inspection is for the purpose of

A. 10256                            7

determining  whether  the  child day care provider is in compliance with
applicable law and regulations and any additional  requirements  imposed
upon  such provider by the authorized agency. Where an authorized agency
makes  such inspections, the authorized agency shall notify the [depart-
ment] OFFICE immediately of any violations  of  this  section  or  regu-
lations promulgated hereunder, and shall provide the [department] OFFICE
with  an  inspection  report whether or not violations were found, docu-
menting the results of such inspection.
  (iii) Nothing contained in this paragraph shall diminish the authority
of the  [department]  OFFICE  to  conduct  inspections  or  provide  for
inspections  through  purchase  of services as otherwise provided for in
this section.  Nothing contained in this paragraph  shall  obligate  the
[department]  OFFICE  to  take  any  action  to  enforce  any additional
requirements imposed on child day care providers by an authorized  agen-
cy.
  (E-1) (I) WHERE A COMPLAINT IS RECEIVED ALLEGING THAT A NURSERY SCHOOL
OPERATOR WHO IS REQUIRED TO FILE HAS NOT DONE SO, THE OFFICE, WITHIN TEN
DAYS  OF  RECEIPT  OF THE COMPLAINT, SHALL ADVISE IN WRITING THE NURSERY
SCHOOL OPERATOR OF THE COMPLAINT, OF THE FILING STANDARDS  AND  REQUIRE-
MENTS,  AND  OF  THE  OPERATOR'S  OBLIGATION  TO  FILE IF SUCH PERSON IS
SUBJECT TO FILING. THE OFFICE SHALL FURTHER DIRECT THE  ALLEGED  NURSERY
SCHOOL OPERATOR TO RESPOND WITHIN THIRTY DAYS OF RECEIPT OF THE OFFICE'S
LETTER.  UNLESS  SUCH NURSERY SCHOOL OPERATOR FILES, SUCH RESPONSE SHALL
STATE WHY THE ALLEGED OPERATOR IS NOT SUBJECT TO THE FILING REQUIREMENTS
OF THIS SECTION.
  (II) SHOULD A NURSERY SCHOOL OPERATOR  FAIL  TO  FILE  OR  SUBMIT  THE
RESPONSE  REQUIRED BY SUBPARAGRAPH (I) OF THIS PARAGRAPH WITHIN THE TIME
LIMIT THEREIN SPECIFIED, THE OFFICE SHALL TAKE SUCH FURTHER ACTION AS IS
NECESSARY TO CAUSE THE OPERATOR TO COMPLY WITH THE LAW.
  (f) Individual local social services districts may alter their partic-
ipation in activities related to arranging for, subsidizing,  delivering
and  monitoring  the  provision  of  subsidized child day care provided,
however, that the total participation of an individual district  in  all
activities  related  to the provision of subsidized child day care shall
be no less than the participation level engaged in  by  such  individual
district on the effective date of this section.
  4. (a) The office [of children and family services] on an annual basis
shall  inspect at least twenty percent of all registered family day care
homes, registered child day care centers, NURSERY SCHOOLS FILED WITH THE
OFFICE and registered school age child care programs to determine wheth-
er such homes, centers and programs are  operating  in  compliance  with
applicable  statutes and regulations. The office [of children and family
services] shall increase the percentage of family day care homes,  child
day  care centers and school age child care programs which are inspected
pursuant to this subdivision as follows: to at least thirty  percent  by
the thirty-first of December two thousand; and to at least fifty percent
by  the  thirty-first of December two thousand one. The office [of chil-
dren and family services]  may  provide  for  such  inspections  through
purchase  of  services. Priority shall be given to family day care homes
which have never been licensed or certified prior to  initial  registra-
tion.
  (b)  Any  family  day  care  home  or  school-age  child  care program
licensed, registered, or certified by the [department] OFFICE or by  any
authorized  agency on the effective date of this section shall be deemed
registered until the expiration of its then-current license  or  certif-
icate  unless such license or certificate is suspended or revoked pursu-

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ant to subdivision ten of  this  section.  Family  day  care  homes  and
school-age child care programs not licensed, registered, or certified on
the  effective  date of this section shall register pursuant to subdivi-
sion two of this section.
  5.  Child  day  care  providers  required  to  have a license from the
[department] OFFICE or to be registered  with  the  [department]  OFFICE
pursuant  to  this  section  shall  not  be exempt from such requirement
through registration with another state agency, or certification, regis-
tration, or licensure by any local governmental agency or any authorized
agency.
  6. Unless otherwise limited by law, a parent with legal custody  or  a
legal  guardian  of  any  child  in  a child day care program OR NURSERY
SCHOOL shall have unlimited and on demand access to such child or  ward.
Such parent or guardian unless otherwise limited by law, also shall have
the right to inspect on demand during its hours of operation any area of
a  child  day  care center, group family day care home, school-age child
care program, or family day care home to which the child or ward of such
parent or guardian has access or which could present  a  hazard  to  the
health and safety of the child or ward.
  7.    (a) The [department] OFFICE shall implement on a statewide basis
programs to educate parents and other potential consumers of  child  day
care  programs  AND  NURSERY  SCHOOLS about their selection and use. The
[department] OFFICE may provide  for  such  implementation  through  the
purchase  of  services. Such education shall include, but not be limited
to, the following topics:
  (i) types of child day care programs;
  (ii) factors to be considered in selecting and  evaluating  child  day
care programs;
  (iii)  regulations  of the [department] OFFICE governing the operation
of different types of programs;
  (iv) rights of parents or guardians in relation to access to  children
and inspection of child day care programs;
  (v)  information  concerning the availability of child day care subsi-
dies;
  (vi)  information  about  licensing  [and],  registration  AND  FILING
requirements;
  (vii)  prevention  of  child  abuse and maltreatment in child day care
programs, including screening of child day care providers and employees;
  (viii) tax information; and
  (ix) factors to be considered in selecting and  evaluating  child  day
care  programs  when  a child needs administration of medications during
the time enrolled.
  (b) The [department] OFFICE shall implement a  statewide  campaign  to
educate  the  public  as  to  the legal requirements for registration of
family day care  and  school-age  child  care,  THE  FILING  OF  NURSERY
SCHOOLS,  and  the  benefits  of  such  [registration]  PROCEDURES.  The
[department] OFFICE may provide  for  such  implementation  through  the
purchase of services. The campaign shall:
  (i) use various types of media;
  (ii) include the development of public educational materials for fami-
lies, [family day care providers,] employers and community agencies;
  (iii) explain the role and functions of child care resource and refer-
ral programs, as such term is used in title five-B of this article;
  (iv)  explain  the  role  and  functions of the [department] OFFICE in
regard to registered LICENSED AND FILED programs; and

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  (v) publicize the [department's] OFFICE'S toll-free  telephone  number
for  making  complaints  of  violations of [child day care] requirements
related to programs which are required to be licensed  [or],  registered
OR FILED.
  8.  The [department] OFFICE shall establish and maintain a list of all
current FILED, registered and licensed [child day care] programs  and  a
list of all programs whose license [or], registration OR FILING has been
revoked,  rejected,  terminated, or suspended. Such information shall be
available to  the  public,  pursuant  to  procedures  developed  by  the
[department] OFFICE.
  8-a.  The  office  [of  children  and  family services] shall not make
available to the public online any group family day care home provider's
or family day care provider's home street address  or  map  showing  the
location  of  such  provider's home where such provider has requested to
opt out of the online availability of this information. The office shall
provide a written form informing a provider of their right to opt out of
providing information online,  and  shall  also  permit  a  provider  to
request to opt out through the office's website.
  9.  The  [department] OFFICE shall make available, directly or through
purchase of services, to registered [child day care] providers  informa-
tion concerning:
  (a) liability insurance;
  (b) start-up grants;
  (c) United States department of agriculture food programs;
  (d) subsidies available for child day care;
  (e) tax information; and
  (f)  support  services  required to be provided by child care resource
and referral programs as set forth in subdivision three of section  four
hundred ten-r of this article.
  10. Any home or facility providing child day care shall be operated in
accordance  with  applicable  statutes and regulations. Any violation of
applicable statutes or regulations shall be  a  basis  to  deny,  limit,
suspend, revoke, or terminate a license or registration. Consistent with
articles  twenty-three  and  twenty-three-A  of  the correction law, and
guidelines referenced in subdivision two of section four  hundred  twen-
ty-five of this article, if the office [of children and family services]
is made aware of the existence of a criminal conviction or pending crim-
inal  charge  concerning  an  operator  of a family day care home, group
family day care home, school-age child care program, or child  day  care
center or concerning any assistant, employee or volunteer in such homes,
programs  or  centers, or any persons age eighteen or over who reside in
such homes, such conviction or charge may be a  basis  to  deny,  limit,
suspend,  revoke, reject, or terminate a license or registration. Before
any license issued  pursuant  to  the  provisions  of  this  section  is
suspended  or  revoked,  before registration pursuant to this section is
suspended or terminated, or when an  application  for  such  license  is
denied  or  registration  rejected,  the applicant for or holder of such
registration or license is entitled, pursuant to section  twenty-two  of
this  chapter  and the regulations of the office [of children and family
services], to a hearing  before  the  office  [of  children  and  family
services].  However,  a  license  or  registration  shall be temporarily
suspended or limited without a hearing upon written notice to the opera-
tor of the facility following a finding that the public  health,  or  an
individual's  safety or welfare, [are] IS in imminent danger. The holder
of a license or registrant is entitled to a hearing  before  the  office
[of children and family services] to contest the temporary suspension or

A. 10256                           10

limitation.  If the holder of a license or registrant requests a hearing
to contest the temporary suspension or limitation, such hearing must  be
scheduled  to  commence  as  soon as possible but in no event later than
thirty  days after the receipt of the request by the office [of children
and family services]. Suspension  shall  continue  until  the  condition
requiring suspension or limitation is corrected or until a hearing deci-
sion  has  been  issued. If the office [of children and family services]
determines after a hearing that the temporary suspension  or  limitation
was  proper,  such  suspension or limitation shall be extended until the
condition requiring suspension or limitation has been corrected or until
the license or registration has been revoked.
  11. (a) (i) (A) The office [of children  and  family  services]  shall
adopt  regulations  establishing  civil  penalties  of no more than five
hundred dollars per day to be assessed against child day  care  centers,
school  age  child  care programs, group family day care homes or family
day care homes for violations of this section,  sections  three  hundred
ninety-a  and  three  hundred ninety-b of this title and any regulations
promulgated thereunder. The  regulations  establishing  civil  penalties
shall specify the violations subject to penalty.
  (B)  THE OFFICE SHALL ALSO ADOPT REGULATIONS ESTABLISHING CIVIL PENAL-
TIES OF NO MORE THAN TWO HUNDRED FIFTY DOLLARS PER DAY  TO  BE  ASSESSED
AGAINST  NURSERY  SCHOOL  OPERATORS  WHO OPERATE NURSERY SCHOOLS WITHOUT
HAVING MADE THE FILING REQUIRED BY THIS SECTION.
  (ii) The office [of children and family services]  shall  adopt  regu-
lations  establishing  civil  penalties  of  no  more  than five hundred
dollars per day to be assessed against  child  day  care  providers  who
operate  child day care centers or group family day care homes without a
license or who operate family day  care  homes,  school-age  child  care
programs,  or  child  day care centers required to be registered without
obtaining such registration.
  (iii) In addition to any other civil or criminal penalty  provided  by
law,  the  office [of children and family services] shall have the power
to assess civil penalties in accordance  with  its  regulations  adopted
pursuant  to  this  subdivision  after a hearing conducted in accordance
with procedures established by regulations of the  office  [of  children
and  family  services]. Such procedures shall require that notice of the
time and place of the hearing, together with a statement of  charges  of
violations,  shall be served in person or by certified mail addressed to
the school age child care program, group family day  care  home,  family
day care home, NURSERY SCHOOL OPERATOR or child day care center at least
thirty  days  prior to the date of the hearing. The statement of charges
shall set forth the existence of the violation or violations, the amount
of penalty for which the program may become liable, the steps which must
be taken to rectify the violation, and  where  applicable,  a  statement
that  a  penalty  may  be imposed regardless of rectification. A written
answer to the charges of violations shall be filed with the  office  [of
children  and  family services] not less than ten days prior to the date
of hearing with respect to each of the charges  and  shall  include  all
material  and  relevant  matters  which, if not disclosed in the answer,
would not likely  be  known  to  the  office  [of  children  and  family
services].
  (iv)  The  hearing shall be held by the commissioner of the office [of
children and family services] or the commissioner's designee. The burden
of proof at such hearing shall be on the office [of children and  family
services]  to  show that the charges are supported by a preponderance of
the evidence. The commissioner of the office  [of  children  and  family

A. 10256                           11

services]  or the commissioner's designee, in his or her discretion, may
allow the child day care center operator or provider to attempt to prove
by a preponderance of the  evidence  any  matter  not  included  in  the
answer.  Where  the  child day care provider satisfactorily demonstrates
that it has rectified the violations in accordance with the requirements
of paragraph (c) of this subdivision, no penalty shall be imposed except
as provided in paragraph (c) of this subdivision.
  (b)(i) In assessing penalties pursuant to this subdivision, the office
[of children and family services] may consider the completeness  of  any
rectification  made and the specific circumstances of such violations as
mitigating factors.
  (ii) Upon the request of the office [of children and family services],
the attorney general shall commence an action in any court of  competent
jurisdiction   against  any  child  day  care  program  subject  to  the
provisions of this subdivision and against any person, entity or  corpo-
ration  operating  such  center  or school age child care program, group
family day care home or family day care home for  the  recovery  of  any
penalty  assessed  by  the  office  [of children and family services] in
accordance with the provisions of this subdivision.
  (iii) Any such penalty assessed by the office [of children and  family
services]  may be released or compromised by the office [of children and
family services] before the matter has been  referred  to  the  attorney
general;  when  such  matter  has been referred to the attorney general,
such penalty may be released or compromised and any action commenced  to
recover the same may be settled and discontinued by the attorney general
with the consent of the office [of children and family services].
  (c)(i)  Except  as  provided  for  in this paragraph, a child day care
provider may avoid payment of a penalty imposed pursuant to this  subdi-
vision  where  the provider has rectified the condition resulting in the
imposition of the penalty within thirty  days  of  notification  of  the
imposition of the penalty.
  (ii)  [Clause]  SUBPARAGRAPH  (i)  of  this paragraph notwithstanding,
rectification shall not preclude the imposition of a penalty pursuant to
this subdivision where:
  (A) the child day care provider has operated a child day  care  center
or  group  family day care home without a license, has refused to seek a
license for the operation of such a center or home, or has continued  to
operate  such  a  center  or home after denial of a license application,
revocation of an existing license or suspension of an existing license;
  (B) the child day care provider has operated a family day  care  home,
school-age  child  care  program or child day care center required to be
registered without being registered, has refused  to  seek  registration
for  the  operation  of such home, program or center or has continued to
operate such a home, program or center after denial  of  a  registration
application,  revocation of an existing registration or suspension of an
existing registration;
  (C) there has been a total or substantial failure  of  the  facility's
fire detection or prevention systems or emergency evacuation procedures;
  (D) the child day care provider or an assistant, employee or volunteer
OR  NURSERY  SCHOOL  has failed to provide adequate and competent super-
vision;
  (E) the child day care provider or an assistant, employee or volunteer
OR NURSERY SCHOOL has failed to provide adequate sanitation;
  (F) the child day care provider or an assistant, employee or volunteer
OR NURSERY SCHOOL has abused or maltreated a child in care; or

A. 10256                           12

  (G) the child day care provider OR NURSERY  SCHOOL  has  violated  the
same  statutory or regulatory standard more than once within a six month
period.
  (d)  Any  civil penalty received by the office [of children and family
services] pursuant to this subdivision shall be deposited to the  credit
of  the "quality child care and protection fund" established pursuant to
section ninety-seven-www of the state finance law, AS ADDED  BY  CHAPTER
FOUR HUNDRED SIXTEEN OF THE LAWS OF TWO THOUSAND.
  (E) RECTIFICATION SHALL NOT PRECLUDE THE ASSESSMENT OF A PENALTY WHERE
THE  OFFICE,  AFTER A HEARING, DETERMINES THAT A NURSERY SCHOOL OPERATOR
HAS OPERATED A NURSERY SCHOOL WITHOUT HAVING MADE THE FILING REQUIRED BY
THIS SECTION, OR CONTINUED TO OPERATE SUCH NURSERY SCHOOL  AFTER  DENIAL
OF  A  FILING  OR REVOCATION OR SUSPENSION OF AN EXISTING FILING WITHOUT
REGARD TO ANY FINDING OF HARM TO OR ENDANGERMENT OF  A  CHILD  IN  CARE.
RECTIFICATION  SHALL  NOT PRECLUDE THE ASSESSMENT OF A PENALTY WHERE THE
OFFICE, AFTER A HEARING, DETERMINES THAT A NURSERY SCHOOL  OPERATOR  HAS
OPERATED  A  NURSERY  SCHOOL, REQUIRED TO FILE WITHOUT HAVING FILED, AND
HAS REFUSED TO FILE OR CONTINUED TO OPERATE SUCH  NURSERY  SCHOOL  AFTER
DENIAL OF FILING OR REVOCATION OR SUSPENSION OF AN EXISTING FILING WITH-
OUT REGARD TO ANY FINDING OF HARM TO OR ENDANGERMENT OF A CHILD IN CARE.
  12.(a)  Notwithstanding  any  other provision of law, except as may be
required as a condition of licensure [or],  registration  OR  FILING  by
regulations  promulgated  pursuant  to  this  section,  no village, town
(outside the area of any incorporated village),  city  or  county  shall
adopt  or  enact  any  law,  ordinance,  rule  or regulation which would
impose, mandate or otherwise enforce standards for  sanitation,  health,
fire  safety or building construction on a one or two family dwelling or
multiple dwelling used to provide group family day care  or  family  day
care  than  would be applicable were such child day care not provided on
the premises. Nothing in this paragraph shall preclude local authorities
with enforcement jurisdiction of the applicable sanitation, health, fire
safety or building construction code from making appropriate inspections
to assure compliance with such  standards.  The  [department  of  social
services]  OFFICE  shall  provide to the secretary of state on a monthly
basis, a list of child day care registrants.
  (b) Notwithstanding any other provision of law: for  the  purposes  of
this subdivision, no local government may prohibit use of a single fami-
ly  dwelling for family day care or group family day care where a permit
for such use has been  issued  in  accordance  with  regulations  issued
pursuant  to this section; nor may any local government prohibit use for
family day care or group family day care, of a multiple dwelling classi-
fied as fireproof or prohibit use for family day care  or  group  family
day  care,  of a dwelling unit located on the ground floor of a multiple
dwelling not classified as fireproof, where in either case  a  registra-
tion  or  license  for such use has been issued in accordance with regu-
lations adopted pursuant to this  section  and  such  use  is  otherwise
permitted  under  state  fire  and safety standards (the state code) and
under any other existing standard for permitted  uses  of  the  multiple
dwelling.
  (c)  Notwithstanding  any  other  provision  of  law,  but pursuant to
section five hundred eighty-one-b of  the  real  property  tax  law,  no
assessing unit, as defined in subdivision one of section one hundred two
of  the  real  property  tax  law, in the assessment of the value of any
parcel used for residential purposes and registered as a family day care
home pursuant to this section, shall consider the use or registration of
such parcel as a family day care home.

A. 10256                           13

  13. Notwithstanding any other provision of law, this section[,  except
for  paragraph  (a-1)  of  subdivision two-a of this section,] shall not
apply to child day care centers in the city of New York, OR ANY  NURSERY
SCHOOL  WHICH  IS ASSOCIATED WITH A SCHOOL DISTRICT, THAT ALREADY IMPLE-
MENTS A FINGERPRINTING PROCESS.
  S  2. The section heading and subdivisions 1 and 2 of section 390-a of
the social services law, the section heading as amended by  chapter  750
of  the  laws of 1990, subdivisions 1 and 2 as amended by chapter 416 of
the laws of 2000, paragraph (e) of subdivision 2 as added by chapter 230
of the laws of 2001, are amended to read as follows:
  Standards and training for child day care AND NURSERY SCHOOLS.  1. All
office of children and family services and municipal staff  employed  to
accept  registrations AND FILINGS, issue licenses or conduct inspections
of child day care homes, programs or facilities, subject to the  amounts
appropriated therefor, shall receive training in at least the following:
regulations  promulgated  by  the office of children and family services
pursuant to section three hundred ninety  of  this  title;  child  abuse
prevention  and  identification; safety and security procedures in child
day care settings; the principles  of  childhood  development,  and  the
laws,  regulations  and  procedures governing the protection of children
from abuse or maltreatment.
  2. No license or registration shall be issued to, OR  FILING  ACCEPTED
FROM  a  family  day  care  home, group family day care home, school age
child care program [or], child day care center OR NURSERY SCHOOL  OPERA-
TOR  and  no such registration, FILING or license shall be renewed until
it can be demonstrated by the employer or licensing agency that there is
a procedure developed and implemented, in accordance with section  three
hundred ninety-b of this title and pursuant to regulations of the office
of children and family services, to:
  (a) review and evaluate the backgrounds of and information supplied by
any  person  applying  to be a child day care center or school-age child
care program employee or volunteer or group family day care assistant, a
provider of family day care or group family day care, or a director of a
child day care center, head start day care  center,  NURSERY  SCHOOL  or
school-age  child care program. Such procedures shall include but not be
limited to the following requirements: that the applicant set forth  his
or  her  employment history, provide personal and employment references;
submit such information as is required for screening with the  statewide
central  register of child abuse and maltreatment in accordance with the
provisions of section four hundred twenty-four-a of this article; sign a
sworn statement indicating whether, to the best of his or her knowledge,
he or she has ever been convicted of a crime in this state or any  other
jurisdiction;  and provide his or her fingerprints for submission to the
division of criminal justice services in accordance with the  provisions
of section three hundred ninety-b of this title;
  (b) establish relevant minimal experiential and educational qualifica-
tions  for  employees  and  directors  of child day care centers or head
start day care center programs;
  (c) assure adequate  and  appropriate  supervision  of  employees  and
volunteers  of group family day care homes, family day care homes, child
day care centers, NURSERY SCHOOLS and school-age  child  care  programs;
[and]
  (d)  demonstrate,  in the case of child day care centers, group family
day care homes, family day care homes, NURSERY  SCHOOLS  and  school-age
child  care  programs  the  existence  of specific procedures which will
assure the safety of a child who is reported to the state central regis-

A. 10256                           14

ter of child abuse and maltreatment as well as other  children  provided
care  by  such homes, centers or programs, immediately upon notification
that a report has been made with respect to a child named in such report
while the child was in attendance at such homes, centers or programs[.];
AND
  (e)  establish  necessary rules to provide for uniform visitor control
procedures, including visitor identification.
  S 3. Paragraph (a) of subdivision 1 of section  424-a  of  the  social
services  law, as amended by chapter 634 of the laws of 1988, is amended
to read as follows:
  (a) A licensing agency shall inquire of  the  [department]  OFFICE  OF
CHILDREN AND FAMILY SERVICES and the [department] OFFICE OF CHILDREN AND
FAMILY  SERVICES  shall,  subject  to the provisions of paragraph (e) of
this subdivision, inform such agency and  the  subject  of  the  inquiry
whether an applicant for a certificate, license or permit, assistants to
group  family  day care providers, the director of a camp subject to the
provisions of article thirteen-A[,] OR thirteen-B [or thirteen-C] of the
public health law, and any person over the age of eighteen  who  resides
in  the home of a person who has applied to become an adoptive parent or
a foster parent or to operate a family day care home, NURSERY SCHOOL  or
group  family  day  care home has been or is currently the subject of an
indicated child abuse and maltreatment report on file with the statewide
central register of child abuse and maltreatment.
  S 4.  Section 390-b of the social services law, as  added  by  chapter
416 of the laws of 2000, is amended to read as follows:
  S  390-b.  Criminal history review of child care providers, generally.
1. (a) Notwithstanding any other provision of law to the  contrary,  and
subject  to  rules  and  regulations of the division of criminal justice
services, the office of children and family  services  shall  perform  a
criminal  history  record  check  with  the division of criminal justice
services regarding any operator, employee or volunteer of  a  child  day
care  center or school age child care provider, as defined in paragraphs
(c) and (f) of subdivision one of section three hundred ninety  of  this
title.  Child day care center operators, school age child care operators
and any employees or volunteers, who previously did not have a  criminal
history record check performed in accordance with this subdivision shall
have  such  a criminal history record check performed when the child day
care center or school age child care provider  applies  for  license  or
registration  renewal.  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. The provisions of this
section shall apply to a volunteer only  where  the  volunteer  has  the
potential  for regular and substantial contact with children enrolled in
the program.
  (b) Notwithstanding any other provision of law to  the  contrary,  and
subject  to  rules  and  regulations of the division of criminal justice
services, the office of children and family  services  shall  perform  a
criminal  history  record  check  with  the division of criminal justice
services regarding the operator, any assistants, employees or volunteers
of a group family day care home [or], family day care  home  OR  NURSERY
SCHOOL,  as  defined in paragraphs (d) [and], (e) AND (G) of subdivision
one of section three hundred ninety of this title, and  any  person  age
eighteen  or  over residing on the premises of the group family day care
home [or], family day care  home  OR  NURSERY  SCHOOL  which  is  to  be
licensed  [or], registered OR FOR WHICH A FILING MUST BE MADE in accord-
ance with section three hundred ninety of this title. Group  family  day

A. 10256                           15

care  home  operators,  family  day  care home operators, NURSERY SCHOOL
OPERATORS, any assistants, employees or volunteers, and persons who  are
age eighteen or over residing on the premises of a licensed group family
day  care  home  [or], registered family day care home OR NURSERY SCHOOL
who previously did not have a criminal history record check performed in
accordance with this subdivision shall  have  such  a  criminal  history
record  check performed when the group family day care home [or], family
day care home OR NURSERY  SCHOOL  applies  for  renewal  of  the  home's
license  [or],  registration OR FILING.   The provisions of this section
shall apply to a volunteer only where the volunteer  has  the  potential
for  regular  and  substantial  contact  with  children  enrolled in the
program.
  2. (a) As part of the provider's application for,  or  renewal  of,  a
child  day care center or school age child care license or registration,
the provider shall furnish the office of children  and  family  services
with  fingerprint  cards  of  any operator of a child day care center or
school age child care program, and any employee or volunteer, who previ-
ously did not have a criminal history record check performed in  accord-
ance  with  this  section,  together  with  such other information as is
required by the office of children and family services and the  division
of criminal justice services.
  (b)  Every  child  day  care  center or school age child care provider
shall obtain a set of fingerprints  for  each  prospective  employee  or
volunteer  and  such  other  information as is required by the office of
children and family  services  and  the  division  of  criminal  justice
services.  The  child  day  care center or school age child care program
shall furnish to the applicant blank fingerprint cards and a description
of how the completed fingerprint cards will be used. The child day  care
center  or  school  age  child care program shall promptly transmit such
fingerprint cards to the office of children and family services.
  (c) As part of the provider's application for, or renewal of, a  group
family  day  care home license or family day care home registration, the
provider shall furnish the office of children and family  services  with
fingerprint  cards  of  any  operator of a group family day care home or
family day care home, and any assistant, employee or volunteer, and  any
person age eighteen or over residing on the premises of the group family
day  care  home  or  family day care home, who previously did not have a
criminal history record check performed in accordance with this section,
together with such other information as is required  by  the  office  of
children  and  family  services  and  the  division  of criminal justice
services.
  (d) Every group family day care home or family day care home  provider
shall  obtain  a  set  of  fingerprints  for each prospective assistant,
employee, volunteer and any person age eighteen  or  over  who  will  be
residing on the premises of the group family day care home or family day
care  home,  and  such other information as is required by the office of
children and family  services  and  the  division  of  criminal  justice
services. The group family day care home or family day care home provid-
er  shall  furnish  to  the  applicant  blank  fingerprint  cards  and a
description of how the completed fingerprint cards  will  be  used.  The
group  family  day  care  home  or  family  day care home provider shall
promptly transmit such fingerprint cards to the office of  children  and
family services.
  (e)  AS PART OF THE PROVIDER'S APPLICATION FOR, OR RENEWAL OF, A NURS-
ERY SCHOOL FILING, THE PROVIDER SHALL FURNISH THE OFFICE OF CHILDREN AND
FAMILY SERVICES WITH FINGERPRINT CARDS OF  ANY  OPERATOR  OF  A  NURSERY

A. 10256                           16

SCHOOL,  AND  ANY  EMPLOYEE  OR VOLUNTEER, WHO PREVIOUSLY DID NOT HAVE A
CRIMINAL HISTORY RECORD CHECK PERFORMED IN ACCORDANCE WITH THIS SECTION,
TOGETHER WITH SUCH OTHER INFORMATION AS IS REQUIRED  BY  THE  OFFICE  OF
CHILDREN  AND  FAMILY  SERVICES  AND  THE  DIVISION  OF CRIMINAL JUSTICE
SERVICES.
  (F) EVERY NURSERY SCHOOL PROVIDER SHALL OBTAIN A SET  OF  FINGERPRINTS
FOR EACH PROSPECTIVE EMPLOYEE OR VOLUNTEER AND SUCH OTHER INFORMATION AS
IS  REQUIRED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES AND THE DIVI-
SION OF CRIMINAL JUSTICE SERVICES.  THE  NURSERY  SCHOOL  PROGRAM  SHALL
FURNISH  TO  THE  APPLICANT BLANK FINGERPRINT CARDS AND A DESCRIPTION OF
HOW THE COMPLETED FINGERPRINT CARDS WILL BE  USED.  THE  NURSERY  SCHOOL
PROGRAM  SHALL PROMPTLY TRANSMIT SUCH FINGERPRINT CARDS TO THE OFFICE OF
CHILDREN AND FAMILY SERVICES.
  (G) The office of children and family services shall pay the  process-
ing fee imposed pursuant to subdivision eight-a of section eight hundred
thirty-seven  of  the  executive  law. The office of children and family
services shall promptly submit the fingerprint cards and the  processing
fee to the division of criminal justice services for its full search and
retain processing.
  [(f)]  (H)  A licensed or registered child day care center, school-age
child care program, group family day care home or family day  care  home
may  temporarily  approve  an  applicant to be an employee, assistant or
volunteer for such provider while the results of  the  criminal  history
record  check are pending, but shall not allow such person to have unsu-
pervised contact with children during such time.
  3. Notwithstanding any other provision of law to the  contrary,  after
reviewing  any criminal history record information provided by the divi-
sion of criminal justice services, of an individual who is subject to  a
criminal  history  record  check pursuant to this section, the office of
children and family services and the provider shall take  the  following
actions:
  (a)  (i)  Where  the  criminal history record of an applicant to be an
operator of a child day care center,  school  age  child  care  program,
group family day care home, family day care home, NURSERY SCHOOL, or any
person  over  the  age  of  eighteen  residing in such a home OR SCHOOL,
reveals a felony conviction at any time for a sex offense, crime against
a child, or a crime involving violence, or a  felony  conviction  within
the  past  five years for a drug-related offense, the office of children
and family services shall deny the  application  OR  FILING  unless  the
office  determines,  in its discretion, that approval of the application
OR FILING will not in any way jeopardize the health, safety  or  welfare
of the children in the center, program or home; or
  (ii) Where the criminal history record of an applicant to be an opera-
tor  of  a  child  day care center, school age child care program, group
family day care home, family day  care  home,  NURSERY  SCHOOL,  or  any
person  over  the  age  of  eighteen  residing in such a home OR SCHOOL,
reveals a conviction for a crime other than one set  forth  in  subpara-
graph  (i) of this paragraph, the office of children and family services
may deny the application OR  FILING,  consistent  with  article  twenty-
three-A of the correction law; or
  (iii) Where the criminal history record of an applicant to be an oper-
ator  of  a  child day care center, school age child care program, group
family day care home, family day care home, NURSERY SCHOOL, or any other
person over the age of eighteen residing  in  such  a  home,  reveals  a
charge  for  any crime, the office of children and family services shall

A. 10256                           17

hold the application OR FILING in abeyance until the charge  is  finally
resolved.
  (b)  (i)  Where the criminal history record of a current operator of a
child day care center, school age child care program, group  family  day
care  home,  family  day  care home, NURSERY SCHOOL, or any other person
over the age of eighteen residing in such a home OR  SCHOOL,  reveals  a
conviction for a crime set forth in subparagraph (i) of paragraph (a) of
this  subdivision,  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.
The office of children and family services shall deny,  limit,  suspend,
revoke, reject or terminate a license [or], registration OR FILING based
on  such  a conviction, unless the office determines, in its discretion,
that continued operation of the center, program  [or],  home  OR  SCHOOL
will  not  in  any  way  jeopardize the health, safety or welfare of the
children in the center, program [or], home OR SCHOOL;
  (ii) Where the criminal history record of  a  current  operator  of  a
child  day  care center, school age child care program, group family day
care home, family day care home, NURSERY SCHOOL,  or  any  other  person
over  the  age  of eighteen residing in such a home OR SCHOOL, reveals a
conviction for a crime other than one set forth in subparagraph  (i)  of
paragraph  (a)  of  this  subdivision, 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. The office may deny,  limit,  suspend,  revoke,  reject  or
terminate  a  license  [or],  registration  OR  FILING  based  on such a
conviction, consistent with article  twenty-three-A  of  the  correction
law;
  (iii)  Where  the  criminal  history record of a current operator of a
child day care center, school age child care program, group  family  day
care  home,  family  day  care home, NURSERY SCHOOL, or any other person
over the age of eighteen residing in such a home OR  SCHOOL,  reveals  a
charge  for  any 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.
The office may suspend a license [or], registration OR FILING  based  on
such  a  charge  where necessary to protect the health and safety of the
children in the program.
  (c) (i) Where the criminal history record of an  applicant  to  be  an
employee  or volunteer at a child day care center [or], school age child
care program OR NURSERY SCHOOL reveals a  conviction  for  a  crime  set
forth  in  subparagraph  (i)  of  paragraph (a) of this subdivision, the
office of children and family services shall direct the provider to deny
the application unless the office determines, in  its  discretion,  that
approval  of  the application will not in any way jeopardize the health,
safety or welfare of the children in the center or program;
  (ii) Where the criminal history  record  of  an  applicant  to  be  an
employee  or volunteer at a child day care center [or], school age child
care program OR NURSERY SCHOOL reveals a conviction for  a  crime  other
than one set forth in subparagraph (i) of paragraph (a) of this subdivi-
sion,  the  office  of children and family services may, consistent with
article twenty-three-A of the correction law,  direct  the  provider  to
deny the application;
  (iii)  Where  the  criminal  history  record  of an applicant to be an
employee or volunteer at a child day care center [or], school age  child
care  program  OR  NURSERY  SCHOOL  reveals  a charge for any crime, the

A. 10256                           18

office of children and family services shall  hold  the  application  in
abeyance until the charge is finally resolved.
  (d)  (i)  Where  the  criminal history record of a current employee or
volunteer at a child day care center [or], school age child care program
OR NURSERY SCHOOL reveals a conviction for a crime set forth in subpara-
graph (i) of paragraph (a) of this subdivision, 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 chil-
dren  in  the program. The office shall direct the provider to terminate
the employee or volunteer based on such a conviction, unless the  office
determines,  in  its  discretion,  that  the  continued  presence of the
employee or volunteer in the center or program will not in any way jeop-
ardize the health, safety or welfare of the children in  the  center  or
program;
  (ii) Where the criminal history record of a current employee or volun-
teer  at  a child day care center [or], school age child care program OR
NURSERY SCHOOL reveals a conviction for a crime other than one set forth
in subparagraph (i) of paragraph (a) of this subdivision, 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. The office may direct the provider to
terminate the employee or volunteer based on such a conviction, consist-
ent with article twenty-three-A of the correction law;
   (iii) Where the criminal history record  of  a  current  employee  or
volunteer at a child day care center [or], school age child care program
OR NURSERY SCHOOL reveals a charge for any 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 chil-
dren in the program.
  (e)  (i)  Where  the  criminal history record of an applicant to be an
employee, assistant or volunteer at a group  family  day  care  home  or
family  day  care  home  reveals  a  conviction for a crime set forth in
subparagraph (i) of paragraph (a) of this  subdivision,  the  office  of
children  and  family  services  shall  direct  the provider to deny the
application unless  the  office  determines,  in  its  discretion,  that
approval  of  the application will not in any way jeopardize the health,
safety or welfare of the children in the home;
  (ii) Where the criminal history  record  of  an  applicant  to  be  an
employee,  assistant  or  volunteer  at  a group family day care home or
family day care home reveals a conviction for a crime other than one set
forth in subparagraph (i) of paragraph  (a)  of  this  subdivision,  the
office  of  children  and  family  services may, consistent with article
twenty-three-A of the correction law, direct the provider  to  deny  the
application;
  (iii)  Where  the  criminal  history  record  of an applicant to be an
employee, assistant or volunteer at a group  family  day  care  home  or
family day care home reveals a charge for any crime, the office of chil-
dren  and  family  services shall hold the application in abeyance until
the charge is finally resolved.
  (f) (i) Where the criminal  history  record  of  a  current  employee,
assistant  or  volunteer  at  a group family day care home or family day
care home reveals a conviction for a crime set forth in subparagraph (i)
of paragraph (a) of this subdivision, 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  home.  The  office of children and family services shall direct the

A. 10256                           19

provider to terminate the employee, assistant or volunteer based on such
a conviction, unless the office determines, in its discretion, that  the
continued  presence  of the employee, assistant or volunteer in the home
will  not  in  any  way  jeopardize the health, safety or welfare of the
children in the home;
  (ii) Where the criminal history record of a current employee,  assist-
ant or volunteer at a group family day care home or family day care home
reveals  a  conviction  for a crime other than one set forth in subpara-
graph (i) of paragraph (a) of this subdivision, the office  of  children
and  family  services  shall conduct a safety assessment of the home and
take all appropriate steps to protect the health and safety of the chil-
dren in the home. The office may direct the provider  to  terminate  the
employee,  assistant or volunteer based on such a conviction, consistent
with article twenty-three-A of the correction law;
  (iii) Where the criminal history record of a current employee, assist-
ant or volunteer at a group family day care home or family day care home
reveals a charge for any  crime,  the  office  of  children  and  family
services  shall  conduct  a  safety  assessment of the home and take all
appropriate steps to protect the health and safety of  the  children  in
the home.
  (g)  Advise  the  provider that the individual has no criminal history
record.
  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  writ-
ing, 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, FILING, application or employment.
  6. The notification by the office of children and family  services  to
the  child  day  care  provider pursuant to this section shall include a
summary of the criminal history record, if any, provided by the division
of criminal justice services.
  7. Where the office of children and family services  directs  a  child
day  care  provider to deny an application based on the criminal history
record, the provider must notify the applicant that such record  is  the
basis of the denial.
  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 house-
hold 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 OR NURSERY SCHOOL.
  9.  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 child day
care provider pursuant to this section, is confidential and shall not be

A. 10256                           20

available for public inspection; provided, however, nothing herein shall
prevent a child day care provider or the office of children  and  family
services from disclosing criminal history information at any administra-
tive  or  judicial proceeding relating to the denial or revocation of an
application, employment, license [or],  registration  OR  FILING.    The
subject  of a criminal history review conducted pursuant to this section
shall be entitled to receive, upon written request, a copy of the summa-
ry of the criminal history record provided by the office of children and
family services to the child day care provider.  Unauthorized disclosure
of such records or reports shall subject the provider to civil penalties
in accordance with the provisions of subdivision eleven of section three
hundred ninety of this title.
  10. A child day care 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.
  S 5. This act shall take effect on the one hundred eightieth day after
it  shall  have become a law, provided, however, that any rules or regu-
lations necessary to implement the provisions of this act on its  effec-
tive date shall be promulgated on or before such date.