STATE OF NEW YORK
________________________________________________________________________
7356--A
2019-2020 Regular Sessions
IN ASSEMBLY
April 26, 2019
___________
Introduced by M. of A. GRIFFIN, THIELE, LAVINE -- Multi-Sponsored by --
M. of A. ENGLEBRIGHT -- read once and referred to the Committee on
Education -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the education law, in relation to background checks and
fingerprinting; and to amend the social services law, in relation to
statewide central registry clearances by construction contractors
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 1125 of the education law, as
2 amended by chapter 363 of the laws of 2018, is amended to read as
3 follows:
4 3. "Employee" shall mean any person: (i) who is receiving compensation
5 from a school or (ii) whose duties involve direct student contact and
6 (a) who is receiving compensation from any person or entity that
7 contracts with a school to provide transportation services to children,
8 or (b) who is an employee of a contracted service provider or worker
9 placed within the school under a public assistance employment program,
10 pursuant to title nine-B of article five of the social services law, or
11 (c) who is receiving compensation from any construction contractor, and
12 consistent with the provisions of such title for the provision of
13 services to such school, its students or employees, directly or through
14 contract.
15 § 2. Paragraph (a) of subdivision 30 of section 305 of the education
16 law, as amended by chapter 630 of the laws of 2006, is amended to read
17 as follows:
18 (a) The commissioner, in cooperation with the division of criminal
19 justice services and in accordance with all applicable provisions of
20 law, shall promulgate rules and regulations to require the fingerprint-
21 ing of prospective employees, as defined in section eleven hundred twen-
22 ty-five of this chapter, of school districts, charter schools [and],
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11194-03-9
A. 7356--A 2
1 boards of cooperative educational services, and construction contractors
2 and authorizing the fingerprinting of prospective employees of nonpublic
3 and private elementary and secondary schools, and for the use of infor-
4 mation derived from searches of the records of the division of criminal
5 justice services and the federal bureau of investigation based on the
6 use of such fingerprints. The commissioner shall also develop a form for
7 use by school districts, charter schools, boards of cooperative educa-
8 tional services, construction contractors, and nonpublic and private
9 elementary and secondary schools in connection with the submission of
10 fingerprints that contains the specific job title sought or the
11 construction or maintenance project on which the individual will be
12 working, and any other information that may be relevant to consideration
13 of the applicant. The commissioner shall also create or expand the
14 functionality of internet based systems to provide access to
15 construction contractors upon application of the construction contractor
16 to the commissioner to enable them to be able to review fingerprint
17 results and subsequent arrest notifications based on the fingerprint and
18 background check data by logging into a protected web portal, entering
19 in the employee name and social security number, which would provide
20 access to see the fingerprint results. The commissioner shall also
21 establish a form for the recordation of allegations of child abuse in an
22 educational setting, as required pursuant to section eleven hundred
23 twenty-six of this chapter. No person who has been fingerprinted pursu-
24 ant to section three thousand four-b of this chapter or pursuant to
25 section five hundred nine-cc or twelve hundred twenty-nine-d of the
26 vehicle and traffic law and whose fingerprints remain on file with the
27 division of criminal justice services shall be required to undergo fing-
28 erprinting for purposes of a new criminal history record check. This
29 subdivision and the rules and regulations promulgated pursuant thereto
30 shall not apply to a school district within a city with a population of
31 one million or more.
32 § 3. The opening paragraph of paragraph (b) of subdivision 30 of
33 section 305 of the education law, as amended by chapter 630 of the laws
34 of 2006, is amended to read as follows:
35 The commissioner, in cooperation with the division of criminal justice
36 services, shall promulgate a form to be provided to all such prospective
37 employees of school districts, charter schools, boards of cooperative
38 educational services, construction contractors and nonpublic and private
39 elementary and secondary schools that elect to fingerprint and seek
40 clearance for prospective employees that shall:
41 § 4. Paragraph (d) of subdivision 30 of section 305 of the education
42 law, as amended by chapter 630 of the laws of 2006, is amended to read
43 as follows:
44 (d) The commissioner shall develop forms to be provided to all school
45 districts, charter schools, boards of cooperative educational services,
46 construction contractors and to all nonpublic and private elementary and
47 secondary schools that elect to fingerprint their prospective employees,
48 to be completed and signed by prospective employees when conditional
49 appointment or emergency conditional appointment is offered.
50 § 5. Subdivision 31 of section 305 of the education law, as added by
51 chapter 380 of the laws of 2001, is amended to read as follows:
52 31. The commissioner shall direct that each school district, charter
53 school, [and] private elementary and secondary school, and construction
54 contractor appoint a designated educational official for the purposes
55 set forth in section 380.90 of the criminal procedure law, subdivision
56 seventeen of section 301.2 and subdivision three of section 380.1 of the
A. 7356--A 3
1 family court act. In addition, the commissioner shall promulgate rules
2 and regulations, in consultation with the office of court adminis-
3 tration, to facilitate electronic access by the courts to the names and
4 addresses of such designated educational officials.
5 § 6. Subdivision 1 of section 3035 of the education law, as amended by
6 chapter 630 of the laws of 2006, is amended to read as follows:
7 1. [The] Prior to the awarding of a contract to perform services, the
8 commissioner shall submit to the division of criminal justice services
9 two sets of fingerprints of prospective employees as defined in subdivi-
10 sion three of section eleven hundred twenty-five of this chapter
11 received from a school district, charter school or board of cooperative
12 educational services, construction contractors and of prospective
13 employees received from nonpublic and private elementary and secondary
14 schools pursuant to title two of this chapter, and the division of crim-
15 inal justice services processing fee imposed pursuant to subdivision
16 eight-a of section eight hundred thirty-seven of the executive law and
17 any fee imposed by the federal bureau of investigation. The division of
18 criminal justice services and the federal bureau of investigation shall
19 forward such criminal history record to the commissioner in a timely
20 manner. For the purposes of this section, the term "criminal history
21 record" shall mean a record of all convictions of crimes and any pending
22 criminal charges maintained on an individual by the division of criminal
23 justice services and the federal bureau of investigation. All such crim-
24 inal history records sent to the commissioner pursuant to this subdivi-
25 sion shall be confidential pursuant to the applicable federal and state
26 laws, rules and regulations, and shall not be published or in any way
27 disclosed to persons other than the commissioner, unless otherwise
28 authorized by law.
29 § 7. Subdivision 3 of section 3035 of the education law, as amended by
30 section 7 of chapter 630 of the laws of 2006, is amended to read as
31 follows:
32 3. (a) Clearance. (i) After receipt of a criminal history record from
33 the division of criminal justice services and the federal bureau of
34 investigation the commissioner shall promptly notify the appropriate
35 school district, charter school, board of cooperative educational
36 services, construction contractors or nonpublic or private elementary or
37 secondary school whether the prospective employee to which such report
38 relates is cleared for employment or for access to the proposed project
39 to perform construction and/or maintenance work based upon his or her
40 criminal history. All determinations to grant or deny clearance for
41 employment pursuant to this paragraph shall be performed in accordance
42 with subdivision sixteen of section two hundred ninety-six of the execu-
43 tive law and article twenty-three-A of the correction law. When the
44 commissioner denies a prospective employee clearance for employment,
45 such prospective employee shall be afforded notice and the right to be
46 heard and offer proof in opposition to such determination in accordance
47 with the regulations of the commissioner.
48 (ii) Notwithstanding any other provisions of law to the contrary,
49 information regarding the results of the investigation of current or
50 prospective employees of construction contractors and subsequent changes
51 in status related to such employees shall be transmitted via an inter-
52 net-based system made available to construction contractors upon appli-
53 cation of the construction contractor to the commissioner where, by
54 logging into a protected web portal and entering in the employee name
55 and social security number, and construction contractors would be able
56 to access fingerprint results, whether the employee first completed a
A. 7356--A 4
1 form provided to them by the construction contractors, or received a
2 form previously from a school district, charter school or board of coop-
3 erative educational services. Nothing in this section shall require an
4 employee who has already submitted their fingerprints to the commission-
5 er to have to submit them again, so long as they were not destroyed.
6 (b) Conditional clearance. When the commissioner receives a request
7 for a determination on the conditional clearance of a prospective
8 employee, the commissioner, after receipt of a criminal history record
9 from the division of criminal justice services, shall promptly notify
10 the prospective employee and the appropriate school district, charter
11 school, board of cooperative educational services, construction contrac-
12 tors or nonpublic or private elementary or secondary school that the
13 prospective employee to which such report relates is conditionally
14 cleared for employment or work on a construction or maintenance project
15 based upon his or her criminal history or that more time is needed to
16 make the determination. If the commissioner determines that more time is
17 needed, the notification shall include a good faith estimate of the
18 amount of additional time needed. Such notification shall be made within
19 fifteen business days after the commissioner receives the prospective
20 employee's fingerprints. All determinations to grant or deny conditional
21 clearance for employment pursuant to this paragraph shall be performed
22 in accordance with subdivision sixteen of section two hundred ninety-six
23 of the executive law and article twenty-three-A of the correction law.
24 § 8. Subdivision 3 of section 3035 of the education law, as amended by
25 section 8 of chapter 630 of the laws of 2006, is amended to read as
26 follows:
27 3. After receipt of a criminal history record from the division of
28 criminal justice services and the federal bureau of investigation the
29 commissioner shall promptly notify the appropriate school district,
30 charter school, board of cooperative educational services, construction
31 contractor, or nonpublic or private elementary or secondary school
32 whether the prospective employee to which such report relates is cleared
33 for employment or for access to a proposed project site to perform
34 construction and/or maintenance work based upon his or her criminal
35 history. All determinations to grant or deny clearance for employment or
36 ability to work on a proposed project pursuant to this subdivision shall
37 be performed in accordance with subdivision sixteen of section two
38 hundred ninety-six of the executive law and article twenty-three-A of
39 the correction law. When the commissioner denies a prospective employee
40 clearance for employment, such prospective employee shall be afforded
41 notice and the right to be heard and offer proof in opposition to such
42 determination in accordance with the regulations of the commissioner.
43 § 9. Section 1125 of the education law is amended by adding a new
44 subdivision 11 to read as follows:
45 11. "Construction contractor" shall mean any individual or entity
46 seeking permission either through a bid or otherwise to perform
47 construction and/or maintenance work on facilities occupied at any point
48 by students of the school district, charter school, board of cooperative
49 educational services, or nonpublic school.
50 § 10. Subdivision 3 of section 424-a of the social services law, as
51 amended by section 14-a of part H of chapter 56 of the laws of 2019, is
52 amended to read as follows:
53 3. For purposes of this section, the term "provider" or "provider
54 agency" shall mean: an authorized agency; the office of children and
55 family services; juvenile detention facilities subject to the certif-
56 ication of the office of children and family services; programs estab-
A. 7356--A 5
1 lished pursuant to article nineteen-H of the executive law; non-residen-
2 tial or residential programs or facilities licensed or operated by the
3 office of mental health or the office for people with developmental
4 disabilities except family care homes; including head start programs
5 which are funded pursuant to title V of the federal economic opportunity
6 act of nineteen hundred sixty-four, as amended; early intervention
7 service established pursuant to section twenty-five hundred forty of the
8 public health law; preschool services established pursuant to section
9 forty-four hundred ten of the education law; construction contractors as
10 defined in subdivision eleven of section eleven hundred twenty-five of
11 the education law; special act school districts as enumerated in chapter
12 five hundred sixty-six of the laws of nineteen hundred sixty-seven, as
13 amended; programs and facilities licensed by the office of alcoholism
14 and substance abuse services; residential schools which are operated,
15 supervised or approved by the education department; health homes, or any
16 subcontractor of such health homes, who contracts with or is approved or
17 otherwise authorized by the department of health to provide health home
18 services to all those enrolled pursuant to a diagnosis of a develop-
19 mental disability as defined in subdivision twenty-two of section 1.03
20 of the mental hygiene law and enrollees who are under twenty-one years
21 of age under section three hundred sixty-five-l of this chapter, or any
22 entity that provides home and community based services to enrollees who
23 are under twenty-one years of age under a demonstration program pursuant
24 to section eleven hundred fifteen of the federal social security act;
25 publicly-funded emergency shelters for families with children, provided,
26 however, for purposes of this section, when the provider or provider
27 agency is a publicly-funded emergency shelter for families with chil-
28 dren, then all references in this section to the "potential for regular
29 and substantial contact with individuals who are cared for by the agen-
30 cy" shall mean the potential for regular and substantial contact with
31 children who are served by such shelter; and any other facility or
32 provider agency, as defined in subdivision four of section four hundred
33 eighty-eight of this chapter, in regard to the employment of staff, or
34 use of providers of goods and services and staff of such providers,
35 consultants, interns and volunteers.
36 § 11. Paragraph (a) of subdivision 2 of section 390-a of the social
37 services law, as amended by chapter 416 of the laws of 2000, is amended
38 to read as follows:
39 (a) review and evaluate the backgrounds of and information supplied by
40 any person applying to be a child day care center or school-age child
41 care program employee or volunteer or group family day care assistant, a
42 provider of family day care or group family day care, or a director of a
43 child day care center, head start day care center or school-age child
44 care program or a construction contractor, or a construction contrac-
45 tor's employee who services any of these entities. Such procedures shall
46 include but not be limited to the following requirements: that the
47 applicant set forth his or her employment history, provide personal and
48 employment references; submit such information as is required for
49 screening with the statewide central register of child abuse and
50 maltreatment in accordance with the provisions of section four hundred
51 twenty-four-a of this article; sign a sworn statement indicating wheth-
52 er, to the best of his or her knowledge, he or she has ever been
53 convicted of a crime in this state or any other jurisdiction; and
54 provide his or her fingerprints for submission to the division of crimi-
55 nal justice services in accordance with the provisions of section three
56 hundred ninety-b of this title. Notwithstanding the provisions of this
A. 7356--A 6
1 paragraph, where a program has people working on their premises through
2 a construction contractor as defined in subdivision eleven of section
3 eleven hundred twenty-five of the education law and such construction
4 contractor has properly performed checks on its employees as a provider
5 or provider agency under section four hundred twenty-four-a of this
6 chapter, then such program does not need to run the check itself on the
7 construction contractor employees working on their site;
8 § 12. This act shall take effect immediately; provided however that:
9 (a) the amendments to section 1125 of the education law made by section
10 one of this act shall take effect on the same date and in the same
11 manner as chapter 363 of the laws of 2018, takes effect; (b) the amend-
12 ments to paragraph (d) of subdivision 30 of section 305 of the education
13 law made by section four of this act shall not affect the repeal of such
14 paragraph and shall be deemed repealed therewith; and (c) the amendments
15 to subdivision 3 of section 3035 of the education law made by section
16 seven of this act shall be subject to the expiration and reversion of
17 such subdivision, pursuant to section 12 of chapter 147 of the laws of
18 2001, as amended, when upon such date the provisions of section eight of
19 this act shall take effect.
