S T A T E O F N E W Y O R K
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4136
2009-2010 Regular Sessions
I N A S S E M B L Y
January 30, 2009
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Introduced by M. of A. AMEDORE, ALFANO, KOLB, TOBACCO, McDONOUGH --
Multi-Sponsored by -- M. of A. ERRIGO, REILICH, WALKER -- 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:
Section 1. The social services law is amended by adding a new section
378-b to read as follows:
S 378-B. CERTIFICATES AND LICENSES; RECORD ACCESS; PROHIBITIONS. 1.
NOTWITHSTANDING THE PROVISIONS OF ANY LAW, RULE OR REGULATION TO THE
CONTRARY, NO LICENSE, PERMIT, CERTIFICATE OR REGISTRATION SHALL BE
ISSUED BY THE DEPARTMENT OR ANY AUTHORIZED AGENCY TO AN APPLICANT TO
OPERATE A CHILD DAY CARE CENTER, HEAD START DAY CARE CENTER PROGRAM
FUNDED PURSUANT TO TITLE V OF THE FEDERAL ECONOMIC OPPORTUNITY ACT OF
1964, SCHOOL AGE CHILD CARE PROGRAM, GROUP FAMILY DAY CARE HOME, FAMILY
DAY CARE HOME, NOR WHERE GRANTED, SHALL ANY SUCH LICENSE, PERMIT,
CERTIFICATE OR REGISTRATION BE RENEWED FOR ANY SUCH ENTITY, IF THE
APPLICANT AND/OR OPERATOR THEREOF SHALL HAVE BEEN CONVICTED OF A VIOLENT
FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE PENAL LAW, OR SHALL
HAVE BEEN CONVICTED OF A MISDEMEANOR OR FELONY AS DEFINED IN ARTICLES
ONE HUNDRED TWENTY, ONE HUNDRED TWENTY-FIVE, ONE HUNDRED THIRTY, ONE
HUNDRED THIRTY-FIVE, TWO HUNDRED FIVE, TWO HUNDRED TWENTY, TWO HUNDRED
TWENTY-ONE, TWO HUNDRED THIRTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED
FORTY-FIVE, TWO HUNDRED FIFTY-FIVE, TWO HUNDRED SIXTY, TWO HUNDRED
SIXTY-THREE AND TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW.
2. NO SUCH ENTITY SHALL EMPLOY ANY ASSISTANT OR EMPLOYEE, NOR SHALL IT
ACCEPT ANY PERSON FOR VOLUNTEER ACTIVITY IN ANY SUCH ENTITY, IF SUCH
ASSISTANT, EMPLOYEE OR VOLUNTEER HAS BEEN CONVICTED OF ANY OFFENSE AS
ENUMERATED IN SUBDIVISION ONE OF THIS SECTION. EVERY SUCH ENTITY, AS
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.
LBD04787-01-9
A. 4136 2
CONSENT OF THE VOLUNTEER OR PROSPECTIVE VOLUNTEER OR EMPLOYEE OR
PROSPECTIVE EMPLOYEE OF SUCH ENTITY, THE CONVICTION RECORDS MAINTAINED
BY THE DIVISION OF CRIMINAL JUSTICE SERVICES PERTAINING TO SUCH VOLUN-
TEER OR PROSPECTIVE VOLUNTEER OR EMPLOYEE OR PROSPECTIVE EMPLOYEE;
PROVIDED, HOWEVER, THAT CONVICTION RECORDS SHALL BE REQUESTED ONLY FOR
VOLUNTEERS OR PROSPECTIVE VOLUNTEERS, EMPLOYEES OR PROSPECTIVE EMPLOYEES
WHO HAVE DIRECT CONTACT, AS DETERMINED BY SUCH ENTITY, WITH CHILDREN
SERVED BY SUCH ENTITY. THE FEE FOR SUCH RECORD SHALL BE PAID BY SUCH
ENTITY.
3. THE CONVICTION RECORD SHALL BE MARKED "CONFIDENTIAL" UPON RECEIPT
BY THE PERSON WHO HAS REQUESTED SUCH RECORDS. ONLY SUCH PERSON SHALL
HAVE ACCESS TO SUCH CONVICTION RECORD, AND SUCH CONVICTION RECORD SHALL
AT ALL TIMES BE MAINTAINED IN A SECURE PLACE IN ORDER TO INSURE SUCH
CONFIDENTIALITY. A PERSON WHO WILFULLY VIOLATES THE CONFIDENTIALITY
REQUIRED BY THIS SUBDIVISION SHALL BE GUILTY OF A CLASS E FELONY.
4. PRIOR TO REQUESTING A CONVICTION RECORD OF A VOLUNTEER OR PROSPEC-
TIVE VOLUNTEER OR EMPLOYEE OR PROSPECTIVE EMPLOYEE FROM THE DIVISION OF
CRIMINAL JUSTICE SERVICES, A REPRESENTATIVE OF SUCH ENTITY SHALL INFORM
ANY SUCH PERSON WHO WORKS DIRECTLY WITH CHILDREN IN ANY ACTIVITIES
AUTHORIZED BY SUCH ENTITY THAT A REQUEST FOR A CONVICTION RECORD AND
REVIEW THEREOF IS REQUIRED IN ORDER FOR SUCH PERSON TO CONTINUE IN THE
SAME CAPACITY OR FOR SUCH PROSPECTIVE VOLUNTEER OR EMPLOYEE TO BE
ACCEPTED BY SUCH ENTITY. SUCH PERSON SHALL SIGN A FORM PROVIDED BY THE
DIVISION OF CRIMINAL JUSTICE SERVICES STATING THAT SUCH PERSON HAS BEEN
INFORMED OF THE REASON FOR A REQUEST FOR HIS OR HER CONVICTION RECORD
AND CONSENTS TO SUCH REQUEST. SUCH FORM SHALL ACCOMPANY EACH REQUEST FOR
A CONVICTION RECORD MADE BY THE PERSON OF SUCH ENTITY REQUESTING THE
RECORD.
5. AFTER BEING INFORMED OF THE REQUIREMENT FOR SUCH ENTITY TO OBTAIN
HIS OR HER CONVICTION RECORD AND BEFORE SUCH PERSON GIVES CONSENT TO THE
PROVISION OF SUCH RECORD TO SUCH ENTITY, A PERSON MAY HAVE ACCESS TO HIS
OR HER CONVICTION RECORD AS MAINTAINED BY THE DIVISION OF CRIMINAL
JUSTICE SERVICES PURSUANT TO THE PROCEDURES OF SUCH DIVISION. SUCH
PERSON SHALL BE PROVIDED WITH ALL NECESSARY INFORMATION REGARDING ACCESS
TO SUCH RECORDS BY A REPRESENTATIVE OF SUCH ENTITY. SUCH PERSON SHALL
ALSO BE PROVIDED BY SUCH DIVISION WITH INFORMATION REGARDING PROCEDURES
FOR SUCH PERSON TO VERIFY THE ACCURACY OF SUCH RECORDS. SUCH PERSON
SHALL NOTIFY SUCH ENTITY IF HE OR SHE WISHES TO HAVE ACCESS TO HIS OR
HER CONVICTION RECORD PRIOR TO GIVING CONSENT TO SUCH ENTITY'S REQUEST
FOR SUCH RECORD.
6. A PROSPECTIVE VOLUNTEER OR EMPLOYEE MAY WITHDRAW FROM THE APPLICA-
TION PROCESS, WHETHER OR NOT HE OR SHE HAS HAD ACCESS TO HIS OR HER
CONVICTION RECORD AND WHETHER OR NOT SUCH RECORD HAS BEEN RECEIVED BY
SUCH ENTITY, WITHOUT PREJUDICE. IF THE CONVICTION RECORD OF SUCH PERSON
HAS BEEN RECEIVED BY SUCH ENTITY, THE PERSON DESIGNATED BY SUCH ENTITY
TO HAVE ACCESS TO CONVICTION RECORDS SHALL DESTROY SUCH RECORD IF THE
PROSPECTIVE VOLUNTEER OR EMPLOYEE IS NOT HIRED AND/OR ACCEPTED BY SUCH
ENTITY OR WITHDRAWS FROM THE APPLICATION PROCESS.
7. THE CONVICTION RECORD OF SUCH A PERSON SHALL BE DESTROYED BY THE
PERSON DESIGNATED BY SUCH ENTITY TO HAVE ACCESS TO CONVICTION RECORDS
WHEN SUCH VOLUNTEER OR EMPLOYEE NO LONGER HAS DIRECT CONTACT WITH CHIL-
DREN SERVED BY SUCH ENTITY.
8. THE PROVISIONS OF THIS SECTION SHALL NOT, HOWEVER, BE APPLICABLE TO
ANY PERSON WHO HAS A MINOR CHILD UNDER THE CARE AND SUPERVISION OF SUCH
ENTITY WHERE HE OR SHE VOLUNTEERS OR IS EMPLOYED OR SEEKS EMPLOYMENT.
A. 4136 3
9. THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL RESPOND TO ANY
REQUEST FOR A CONVICTION RECORD WHICH IS ACCOMPANIED BY A FORM SIGNED BY
THE SUBJECT OF SUCH REQUEST CONSENTING TO THE PROVISION OF SUCH RECORD
MADE PURSUANT TO THIS SECTION WITHIN FOURTEEN DAYS AFTER SUCH INQUIRY IS
RECEIVED. THE COMMISSIONER OF SUCH DIVISION SHALL PROMULGATE RULES AND
REGULATIONS PROVIDING FOR A HEARING FOR A PROSPECTIVE VOLUNTEER OR
VOLUNTEER OR EMPLOYEE OR PROSPECTIVE EMPLOYEE BEFORE REPRESENTATIVES OF
SUCH DIVISION AND THE DEPARTMENT FOR PURPOSES OF VERIFYING THE ACCURACY
OF HIS OR HER CONVICTION RECORD AND FOR ACCESS BY SUCH PERSONS TO PERTI-
NENT DOCUMENTS RELATED THERETO.
10. FOR PURPOSES OF THIS SECTION, "CONVICTION RECORD" SHALL MEAN ANY
RECORD MAINTAINED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES OF
CONVICTIONS OF A CRIME IN VIOLATION OF THE PENAL LAW OR ANY OTHER LAW OF
ANOTHER JURISDICTION WHICH, IF COMMITTED IN THIS STATE, WOULD CONSTITUTE
A CRIME.
S 2. Subdivision 8-a of section 837 of the executive law, as amended
chapter 561 of the laws of 2006, is amended to read as follows:
8-a. Charge a fee when, pursuant to statute or the regulations of the
division, it conducts a search of its criminal history records and
returns a report thereon in connection with an application for employ-
ment or for a license or permit OR RETURNS A CONVICTION REPORT THEREON
AS REQUIRED BY SECTION THREE HUNDRED SEVENTY-EIGHT-B OF THE SOCIAL
SERVICES LAW. The division shall adopt and may, from time to time,
amend a schedule of such fees which shall be in amounts determined by
the division to be reasonably related to the cost of conducting such
searches and returning reports thereon but, in no event, shall any such
fee exceed twenty-five dollars and an additional surcharge of fifty
dollars. The comptroller is hereby authorized to deposit such fees into
the general fund, provided, however, that the monies received by the
division of criminal justice services for payment of the additional
surcharge shall be deposited in equal amounts to the general fund and to
the fingerprint identification and technology account. Notwithstanding
the foregoing, the division shall not request or accept any fee for
searching its records and supplying a criminal history report pursuant
to section two hundred fifty-one-b of the general business law relating
to participating in flight instruction at any aeronautical facility,
flight school or institution of higher learning.
S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law provided, however, that the commissioner of
the division of criminal justice services shall promulgate rules and
regulations prior to such effective date necessary to implement the
provisions of this act.