S T A T E O F N E W Y O R K
________________________________________________________________________
5378
2009-2010 Regular Sessions
I N A S S E M B L Y
February 13, 2009
___________
Introduced by M. of A. ERRIGO, CROUCH, FINCH, GIGLIO, McDONOUGH, TOWN-
SEND, TOBACCO, WALKER -- Multi-Sponsored by -- M. of A. BARRA,
CALHOUN, DUPREY, HAWLEY, JORDAN, McKEVITT, RABBITT -- read once and
referred to the Committee on Children and Families
AN ACT to amend the social services law, the executive law and the
correction law, in relation to the disclosure of prior criminal
records and its consideration in the licensing of child day care
providers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 10 of section 390 of the social services law,
as amended by chapter 416 of the laws of 2000, is amended to read as
follows:
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] THE OFFICE OF CHILDREN AND FAMI-
LY SERVICES may [be a basis to] deny, limit, suspend, revoke, reject, or
terminate a license or registration. IF SUCH OFFICE IS MADE AWARE OF A
CONVICTION OF (A) A VIOLENT FELONY OFFENSE AGAINST A CHILD, (B) A
VIOLENT FELONY OFFENSE AS DEFINED BY SUBDIVISION ONE OF SECTION 70.02 OF
THE PENAL LAW, (C) ANY OFFENSE DEFINED IN ARTICLE ONE HUNDRED THIRTY OF
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05896-01-9
A. 5378 2
THE PENAL LAW, (D) ANY OFFENSE DEFINED IN ARTICLE TWO HUNDRED THIRTY,
TWO HUNDRED THIRTY-FIVE OR TWO HUNDRED FORTY-FIVE OF THE PENAL LAW
CONCERNING AN OPERATOR, ASSISTANT, EMPLOYEE OR VOLUNTEER OF A FAMILY DAY
CARE HOME, SCHOOL-AGE CHILD CARE PROGRAM, OR CHILD DAY CARE CENTER OR
ANY PERSON OVER THE AGE OF EIGHTEEN WHO RESIDES IN SUCH FACILITIES, THE
OFFICE SHALL DENY, REVOKE, REJECT OR TERMINATE A LICENSE OR REGISTRA-
TION. 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 twen-
ty-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 in imminent danger OR THAT SUCH
OPERATOR, ASSISTANT, EMPLOYEE OR VOLUNTEER IN SUCH FACILITY HAS BEEN
CONVICTED OF ANY OFFENSE SET FORTH IN PARAGRAPHS (A) THROUGH (D) OF THIS
SUBDIVISION. 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 limitation. If the holder of a license or regis-
trant requests a hearing to contest the temporary suspension or limita-
tion, 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 decision 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.
S 2. Paragraph (d) of subdivision 2 of section 390 of the social
services law is amended by adding a new subparagraph (iii) to read as
follows:
(III) SHOULD ANY CHILD DAY CARE PROVIDER REGISTERING WITH THE OFFICE
OF CHILDREN AND FAMILY SERVICES AS AN OPERATOR OF A FAMILY DAY CARE
HOME, CHILD DAY CARE CENTER, OR SCHOOL-AGE CHILD CARE PROGRAM PURSUANT
TO PARAGRAPH (B) OR (C) OF THIS SUBDIVISION, OR ANY CHILD DAY CARE
PROVIDER MAKING APPLICATION TO THE OFFICE OF CHILDREN AND FAMILY
SERVICES FOR A LICENSE OR RENEWAL OF A LICENSE TO OPERATE A CHILD DAY
CARE CENTER AS REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION FAIL TO
DISCLOSE OR MISREPRESENTS OR FALSIFIES INFORMATION REGARDING WHETHER
SUCH PROVIDER HAS EVER BEEN CONVICTED OF ANY OFFENSE SET FORTH IN PARA-
GRAPHS (A) THROUGH (D) OF SUBDIVISION TEN OF THIS SECTION, SUCH REGIS-
TRATION SHALL BE REJECTED AND SUCH LICENSE SHALL BE DENIED AND, IN THE
EVENT THE OFFICE OF CHILDREN AND FAMILY SERVICES IS MADE AWARE OF SUCH
FAILURE TO DISCLOSE, OR MISREPRESENTATION OR FALSIFICATION SUBSEQUENT TO
THE ISSUANCE OF A LICENSE TO OR ACCEPTANCE OF REGISTRATION FROM SUCH
PROVIDER, SUCH REGISTRATION SHALL BE TERMINATED AND SUCH LICENSE
REVOKED. ANY SUCH APPLICANT, REGISTRANT OR LICENSEE SHALL BE 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 PROVIDED, HOWEVER, THAT SUCH
REVIEW SHALL BE LIMITED TO THE ALLEGED FAILURE TO DISCLOSE, OR ALLEGED
MISREPRESENTATIONS OR FALSIFICATIONS MADE REGARDING SUCH PROVIDER'S
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PRIOR CRIMINAL CONVICTION RECORD. THE REQUEST FOR SUCH HEARING SHALL BE
MADE WITHIN THIRTY DAYS OF THE RECEIPT OF WRITTEN NOTICE OF THE
REJECTION, DENIAL, TERMINATION OR REVOCATION. SUCH REJECTION, DENIAL,
TERMINATION OR REVOCATION SHALL BECOME FINAL IF THE APPLICANT, REGIS-
TRANT OR LICENSEE FAILS TO REQUEST A HEARING WITHIN SUCH THIRTY DAY
PERIOD.
S 3. Section 390 of the social services law is amended by adding a new
subdivision 2-b to read as follows:
2-B. IN ADDITION TO THE REQUIREMENTS SET FORTH IN SECTION THREE
HUNDRED NINETY-A OF THIS TITLE, ANY CHILD DAY CARE PROVIDER REGISTERING
WITH THE OFFICE OF CHILDREN AND FAMILY SERVICES AS AN OPERATOR OF A
FAMILY DAY CARE HOME, CHILD DAY CARE CENTER, OR SCHOOL-AGE CHILD CARE
PROGRAM AND ANY CHILD DAY CARE PROVIDER MAKING APPLICATION TO THE OFFICE
OF CHILDREN AND FAMILY SERVICES A LICENSE OR RENEWAL OF A LICENSE TO
OPERATE A CHILD DAY CARE CENTER SHALL, AS A COMPONENT OF SUCH REGISTRA-
TION OR LICENSURE PROCESS, BE SUBJECT TO SCREENING PROCEDURES DEVELOPED
BY THE OFFICE OF CHILDREN AND FAMILY SERVICES CONSISTENT WITH THE
PROVISIONS OF THIS SUBDIVISION. SUCH PROCEDURES SHALL INCLUDE, BUT NOT
BE LIMITED TO (A) THE FINGERPRINTING OF APPLICANTS FOR REGISTRATION OR
LICENSURE AND ANY PROSPECTIVE ASSISTANT OR EMPLOYEE IN SUCH PROSPECTIVE
REGISTERED OR LICENSED HOME, PROGRAM OR CENTER AND (B) REVIEW BY THE
OFFICE OF CHILDREN AND FAMILY SERVICES OF THE CRIMINAL CONVICTION
RECORDS OF ANY SUCH APPLICANT, PROSPECTIVE ASSISTANT, EMPLOYEE OR VOLUN-
TEER CONSISTENT WITH THE PROVISIONS OF ARTICLES TWENTY-THREE AND TWEN-
TY-THREE-A OF THE CORRECTION LAW.
S 4. Subdivision 15 of section 296 of the executive law, as amended by
chapter 534 of the laws of 2008, is amended to read as follows:
15. It shall be an unlawful discriminatory practice for any person,
agency, bureau, corporation or association, including the state and any
political subdivision thereof, to deny any license or employment to any
individual by reason of his or her having been convicted of one or more
criminal offenses, or by reason of a finding of a lack of "good moral
character" which is based upon his or her having been convicted of one
or more criminal offenses, when such denial is in violation of the
provisions of article twenty-three-A of the correction law. Further,
there shall be a rebuttable presumption in favor of excluding from
evidence the prior incarceration or conviction of any person, in a case
alleging that the employer has been negligent in hiring or retaining an
applicant or employee, or supervising a hiring manager, if after learn-
ing about an applicant or employee's past criminal conviction history,
such employer has evaluated the factors set forth in section seven
hundred fifty-two of the correction law, and made a reasonable, good
faith determination that such factors militate in favor of hire or
retention of that applicant or employee PROVIDED, HOWEVER, THAT THE
PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO THE LICENSING OR
REGISTERING ACTIVITIES OF GOVERNMENTAL BODIES IN RELATION TO THE REGU-
LATION OF CHILD DAY CARE FACILITIES.
S 5. Subdivision 16 of section 296 of the executive law, as amended by
chapter 639 of the laws of 2007, is amended to read as follows:
16. It shall be an unlawful discriminatory practice, unless specif-
ically required or permitted by statute, for any person, agency, bureau,
corporation or association, including the state and any political subdi-
vision thereof, to make any inquiry about, whether in any form of appli-
cation or otherwise, or to act upon adversely to the individual
involved, any arrest or criminal accusation of such individual not then
pending against that individual which was followed by a termination of
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that criminal action or proceeding in favor of such individual, as
defined in subdivision two of section 160.50 of the criminal procedure
law, or by a youthful offender adjudication, as defined in subdivision
one of section 720.35 of the criminal procedure law, or by a conviction
for a violation sealed pursuant to section 160.55 of the criminal proce-
dure law in connection with the licensing, employment or providing of
credit or insurance to such individual; provided, however, that the
provisions hereof shall not apply to the licensing activities of govern-
mental bodies in relation to the regulation of guns, firearms and other
deadly weapons, THE LICENSING OR REGISTERING ACTIVITIES OF GOVERNMENTAL
BODIES IN RELATION TO THE REGULATION OF CHILD DAY CARE FACILITIES, or in
relation to an application for employment as a police officer or peace
officer as those terms are defined in subdivisions thirty-three and
thirty-four of section 1.20 of the criminal procedure law; provided
further that the provisions of this subdivision shall not apply to an
application for employment or membership in any law enforcement agency
with respect to any arrest or criminal accusation which was followed by
a youthful offender adjudication, as defined in subdivision one of
section 720.35 of the criminal procedure law, or by a conviction for a
violation sealed pursuant to section 160.55 of the criminal procedure
law.
S 6. Section 752 of the correction law, as amended by chapter 284 of
the laws of 2007, is amended to read as follows:
S 752. Unfair discrimination against persons previously convicted of
one or more criminal offenses prohibited. No application for any license
or employment, and no employment or license held by an individual, to
which the provisions of this article are applicable, shall be denied or
acted upon adversely by reason of the individual's having been previous-
ly convicted of one or more criminal offenses, or by reason of a finding
of lack of "good moral character" when such finding is based upon the
fact that the individual has previously been convicted of one or more
criminal offenses, unless:
(1) there is a direct relationship between one or more of the previous
criminal offenses and the specific license or employment sought or held
by the individual; or
(2) the issuance or continuation of the license or the granting or
continuation of the employment would involve an unreasonable risk to
property or to the safety or welfare of specific individuals or the
general public; OR
(3) THE ISSUANCE OF THE LICENSE OR REGISTRATION OR THE GRANTING OF THE
EMPLOYMENT IS IN RELATION TO THE REGULATION OF CHILD DAY CARE
FACILITIES.
S 7. This act shall take effect on the one hundred twentieth day after
it shall have become a law except that any rules and regulations neces-
sary for the timely implementation of this act on its effective date
shall be promulgated on or before such date.