Bill S2420-2011

Requires fingerprinting of prospective employees of special education schools for purposes of a criminal background check

Requires fingerprinting of prospective employees of special education schools for purposes of a criminal background check; defines "special education school"; allows school to establish procedures for conditional appointment or emergency conditional appointment of prospective employees of the school.

Details

Actions

  • Jan 4, 2012: REFERRED TO EDUCATION
  • Apr 12, 2011: REPORTED AND COMMITTED TO FINANCE
  • Jan 20, 2011: REFERRED TO EDUCATION

Meetings

Votes

VOTE: COMMITTEE VOTE: - Education - Apr 12, 2011
Ayes (16): Flanagan, Farley, Lanza, LaValle, Marcellino, Maziarz, Ranzenhofer, Robach, Saland, Addabbo, Avella, Breslin, Montgomery, Serrano, Stavisky, Huntley
Ayes W/R (1): Seward
Excused (1): Oppenheimer

Memo

BILL NUMBER:S2420

TITLE OF BILL: An act to amend the education law, in relation to requiring the fingerprinting of prospective employees of public or publicly-funded special education schools for the purpose of conducting criminal history record checks

PURPOSE: The purpose of this bill is to protect the health and safety of students with disabilities who attend various special education schools in settings outside of a public school district or board of cooperative educational services (BOCES) by requiring the fingerprinting and criminal history record checks of prospective employees of such schools on the same basis as prospective employees of school districts, charter schools and BOCES.

SUMMARY OF PROVISIONS: Section 1 of the bill amends paragraphs a and b of subdivision 30 of section 305 of the Education Law to make the provisions that require the Commissioner of Education to promulgate regulations on fingerprinting of prospective employees and develop forms relating to fingerprinting and notices to employees applicable to prospective employees of special education schools. Such regulations would not apply to special education schools located within the City of New York, which currently fingerprints employees of special education schools that contract with the New York City School District.

Section 2 of the bill amends subparagraph (vii) of paragraph C of subdivision 30 of section 305 of the Education Law to make the provision requiring the destruction of an employee's fingerprinting records 12 months after termination if the individual is not employed by another public school also apply to employees of special education schools and to re-employment in such schools.

Section 3 of the bill amends paragraph d of subdivision 30 of section 305 to make the provision that requires the Commissioner to develop forms to be completed by prospective employees when conditional appointments and emergency conditional appointments are made applicable to special education schools.

Section 4 of the bill adds a new paragraph (f) to subdivision 30 of section 305 of the Education Law to define a "special education school" as a State school operated pursuant to Article 87 or 88 of the Education Law (i.e., the State School for the Blind at Batavia and the State School for the Deaf at Rome); a State-supported school operated pursuant to Article 85 of the Education Law (i.e., a "4201 school"); an approved private non-residential or residential school for students with disabilities that is located within the state (i.e., a "Chapter 853 school"); or an approved provider of preschool special education services or programs that are located within the state (i.e., "4410 providers"); provided that such term shall not include a school or facility operated or licensed by another State agency unless such school or facility is also an approved private school for students with disabilities or an approved preschool provider.

Section 5 of the bill amends subdivision 1 of section 3035 of the Education Law to make the provision that requires the Commissioner to submit fingerprints to the Division of Criminal Justice Services (DCJS) with required processing fees and requires DCJS and the Federal Bureau of Investigations (FBI) to submit the criminal history record to the commissioner in a timely manner, also applicable to fingerprints received from a special education school pursuant to Title 6 of the Education Law, except a special education school located within the City of New York. It also makes the definition of an "employee" that is contained in Education Law § 1125(3) apply to special education schools.

Section 6 of the bill amends subdivision 3 of section 3035 of the Education Law to make the existing procedures for conditional clearances and emergency conditional clearances apply to special education schools. Section 6 also amends subdivision 3-a of section 3035 to authorize the sharing of criminal history record information on employees of special education schools between the City of New York and the commissioner to authorize the Division of Criminal Justice Services to provide subsequent criminal history to the Commissioner for employees of special education schools located outside New York City and to the City of New York for special education schools that contract with the New York City School District.

Section 7 of the bill amends paragraph i of subdivision a of section 4212 of the Education Law to require that applicants for employment by 4201 schools be fingerprinted in accordance with subdivision (d) of such section.

Section 8 of the bill adds a new subdivision (d) to section 4212 of the Education Law to require the fingerprinting of all prospective employees of 4201 schools unless they have already received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 509-cc or 1229-d of the Vehicle and Traffic Law (school bus drivers and attendants) or by the City of New York pursuant to local law. The new subdivision also authorizes the Commissioner to provide subsequent criminal history notifications to the schools. The new subdivision also authorizes conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39).

Section 9 of the bill amends paragraph i of subdivision a of section 4314 of the Education Law to require that applicants for employment by the State School for the Blind at Batavia be fingerprinted in accordance with subdivision (d) of such section.

Section 10 of the bill adds a new subdivision (d) to section 4314 of the Education Law to require the fingerprinting of all prospective employees of the State School for the Blind at Batavia unless they have already received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 509-cc or 1229-d of the Vehicle and Traffic Law (school bus drivers and attendants) or by the City of New

York pursuant to local law. The new subdivision also authorizes conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39).

Section 11 of the bill amends paragraph i of subdivision a of section 4358 of the Education Law to require that applicants for employment by the State School for the Deaf at Rome be fingerprinted in accordance with subdivision (d) of such section.

Section 12 of the bill adds a new subdivision (d) to section 4358 of the Education Law to require the fingerprinting of all prospective employees of the State School for the Deaf at Rome unless they have already received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 509-cc or 1229-d of the Vehicle and Traffic Law (school bus drivers and attendants) or by the City of New York pursuant to local law. The new subdivision also authorizes conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39).

Section 13 of the bill amends paragraph a of subdivision 11 of section 4403 of the Education Law to require that applicants for employment by Chapter 853 schools be fingerprinted in accordance with subdivision 21 of such section.

Section 14 of the bill adds a new subdivision 21 to section 4403 of the Education Law to require the fingerprinting of all prospective employees of Chapter 853 schools unless they have already received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 509-cc or 1229-d of the Vehicle and Traffic Law (school bus drivers and attendants) or by the City of New York pursuant to local law. The new subdivision also authorizes the Commissioner to provide subsequent criminal history notifications to the schools. The new subdivision also authorizes conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39). The new subdivision also clarifies that it does not apply to an approved July and August program under Education Law section 4408 that is operated by a school district or BOCES.

Section 15 of the bill adds a new subdivision 9-e to section 4410 of the Education Law to require the fingerprinting of all prospective employees of 4410 providers unless they have already received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 509-cc or 1229-d of the Vehicle and Traffic Law (school bus drivers and attendants), or a valid clearance issued by the City of New York pursuant to local law. The new subdivision also clarifies that individual related service providers are responsible for submitting their own fingerprints prior to inclusion

of a list maintained by the municipality or board pursuant to subdivision (9) (c) of section 4410. The new subdivision also authorizes the Commissioner to provide subsequent criminal history notifications to the approved providers or to the City School District of the City of New York for its employees. The new subdivision also authorizes conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39). The new subdivision also clarifies that it does not apply to an approved July and August program under Education Law section 4408 that is operated by a school district or BOCES. Finally, the new subdivision authorizes the Commissioner to provide a copy of the employees' clearance for employment or a denial of clearance to each municipality that employs or has such individual on a list of related service providers.

Section 16 amends subdivision 3 of section 1125 of the Education Law to include persons receiving compensation in special education school districts in the definition of employee. Subdivision 5 of section 1125 of the Education Law is amended to special education schools and school districts in the definition of educational setting.

Section 17 amends subdivision 3 of section 3035 of the Education Law, as such subdivision existed prior to its amendment by Chapter 630 of the Laws of 2006, to assure that the expiration of the amendments made by Chapter 147 will not affect the amendment to subdivision 3 that is needed to provide for clearances by special education schools. This bill section only takes effect if the provisions of Chapter 147 expire and are deemed repealed.

Section 18 appropriates $250,000 to the State Education Department for its expenses in implementing this bill in the first year.

Section 19 is the effective date.

JUSTIFICATION: Fingerprinting requirements were imposed on prospective employees of school districts, BOCES and charter schools by Chapter 180 of the Laws of 2000. This bill would extend the protection currently provided by the criminal history record checks of prospective employees of such public schools to fully cover prospective employees of the various types of publicly-funded schools that serve students with disabilities placed by school district committees on special education and committees on preschool special education.

The City of New York currently fingerprints employees of special education schools with which it contracts, but there is no finger-printing requirement in place for special education schools located outside the City of New York that do not contract with the New York City School District. Now that school districts, BOCES and charter schools are required to fingerprint applicants for employment, and as more and more states impose fingerprinting requirements for their school employees, leaving our special education schools unprotected creates a serious risk. Those convicted

of certain crimes would be disqualified from serving in public schools, such as sex offenses involving children, and as such may seek out employment in schools not authorized to screen prospective employees through an FBI background check.

Students with disabilities are perhaps the most vulnerable student population of all, and exposing them to the risk of abuse by individuals with criminal histories involving physical or sexual abuse of children is simply unconscionable, regardless of the costs and burdens of fully implementing a fingerprinting system. The existing protections provided to students with disabilities are not adequate. Education Law §§ 4212, 4314, 4358 and 4403(11) and Title 6 of the Social Services Law provide protections against abuse and maltreatment of students with disabilities in residential care, including requirements that applicants for employment provide sworn statements of their criminal history and access by special education schools to the Statewide Central Register of Child Abuse and Maltreatment for the purpose of screening applicants for employment. However, the Statewide Central Register will only pick up prior founded reports of child abuse or maltreatment against the individual, and the legal definition of child abuse and maltreatment is too narrow to cover many criminal offenses that ought to be disqualifying, such as sexual offenses involving children for whom the individual is not the parent or otherwise responsible under the Family Court Act or rape or other serious offenses involving adults. Moreover, there is no such protection for students with disabilities in non-residential schools, and no mechanism in either residential or non-residential schools for screening for criminal history on a national basis through the FBI. It is because of the need for statutory authorization for an FBI criminal history check that this bill includes the State Schools for the Deaf and Blind, where a State criminal history check has already been implemented.

In recognition of the costs and administrative burdens that would result from immediate imposition of fingerprinting requirements, this bill follows the same measured approach that was adopted in Chapter 180 of 2000 establishing fingerprinting requirements. Fingerprinting is imposed only prospectively-it applies to new applicants for employment and does not apply to existing employees. Instead of involving school districts or BOCES in the fingerprinting of employees of other entities, the bill makes the special education schools responsible for ensuring that their prospective employees are fingerprinted and granted criminal clearance by the Commissioner of Education. Duplication of fingerprinting requirements is avoided to the extent practicable, though there are circumstances under which individuals who are fingerprinted and subjected to a criminal history record check under other laws are not exempted by this bill because such other laws do not authorize an FBI criminal history record check. For example, this bill does not provide an exemption for individuals employed by approved providers under section 4410 of the Education Law who have been fingerprinted under the provisions of § 390-b of the Social Services Law applicable to day care workers, because there is no provision for an FBI criminal history record check under that statute. Once an individual is given criminal clearance after having been fingerprinted by a school district pursuant to Education Law § 3035 or after they apply for a teachers' certificate, they will not need to be re-fingerprinted. Special

education schools located within the City of New York and individuals who are employed by special education schools located outside of the City of New York who receive clearance by the City of New York would also be exempted. With those exceptions, the bill tracks the existing requirements for criminal history record checks of prospective school district employees, providing special education school prospective employees with the same due process protections as school district prospective employees.

To ensure the protection of children in special education schools, this bill establishes standardized practices and procedures for schools to follow which guarantee that allegations of child abuse by school employees and volunteers with direct access to school children are investigated by appropriate law enforcement authorities. This legislation is required to fill a major gap in State law affecting the protection of children from child abuse. Whereas, all officers and employees of the New York City School District and New York State Public School Districts are required to report incidences of misconduct, no comparable directive requiring an investigation of allegations by a law enforcement agency exists in these special education schools. As a result, employees have been permitted to "quietly" resign in the face of child abuse allegations, enabling them to again victimize children in another school setting. This bill will eliminate "quiet" resignations and provide an important measure of protection for children in these special education schools.

LEGISLATIVE HISTORY: 2009-10: S.3440 - Referred to Education 2007-08: S.5774 - Passed Senate 2005-06: Similar to S.5432 - Passed Senate

FISCAL IMPLICATIONS: It is estimated that this bill would result in an annual cost to the State of $225,000, for staff to handle the additional workload that would be generated by this bill. Applicants for positions at special education schools would be required to pay a processing fee for a criminal history record check by DCJS and the FBI that is currently set at $99. Special education schools located within the City of New York would be exempt and a substantial proportion of the employees of special education schools located outside the City of New York, and would also be exempted.

EFFECTIVE DATE: This act would take effect on the 180th day after it shall have become a law, provided that the commissioner's authority to promulgate any regulations needed to implement the act on such effective date would take effect immediately and provided further that the provisions of this act shall apply to prospective employees of special education schools who are appointed on or after such effective date and to individual providers of preschool related services who are placed on lists maintained by the municipality pursuant to subdivision 9 of section 4410 of the education law on and after such effective date. The provisions of section 6 of this act would expire and be deemed repealed in accordance with section 12 of Chapter 147 of the Laws of 2001, whereupon the provisions of section 17 of this act would take effect.


Text

STATE OF NEW YORK ________________________________________________________________________ 2420 2011-2012 Regular Sessions IN SENATE January 20, 2011 ___________
Introduced by Sen. SALAND -- read twice and ordered printed, and when printed to be committed to the Committee on Education AN ACT to amend the education law, in relation to requiring the finger- printing of prospective employees of public or publicly-funded special education schools for the purpose of conducting criminal history record checks THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraphs (a) and (b) of subdivision 30 of section 305 of the education law, paragraph (a), the opening paragraph and subparagraph (i) of paragraph (b) as amended by chapter 630 of the laws of 2006 and paragraph (b) as added by chapter 180 of the laws of 2000, are amended to read as follows: (a) The commissioner, in cooperation with the division of criminal justice services and in accordance with all applicable provisions of law, shall promulgate rules and regulations to require the fingerprint- ing of prospective employees, as defined in section eleven hundred twen- ty-five of this [chapter] TITLE, of school districts, charter schools [and], boards of cooperative educational services AND SPECIAL EDUCATION SCHOOLS, and authorizing the fingerprinting of prospective employees of nonpublic and private elementary and secondary schools, and for the use of information derived from searches of the records of the division of criminal justice services and the federal bureau of investigation based on the use of such fingerprints. The commissioner shall also develop a form for use by school districts, charter schools, boards of cooperative educational services, [and] nonpublic and private elementary and second- ary schools AND SPECIAL EDUCATION SCHOOLS, in connection with the submission of fingerprints that contains the specific job title sought and any other information that may be relevant to consideration of the applicant. The commissioner shall also establish a form for the recorda- tion of allegations of child abuse in an educational setting, as
required pursuant to section eleven hundred twenty-six of this [chapter] TITLE. No person who has been fingerprinted pursuant to section three thousand four-b of this chapter or pursuant to section five hundred nine-cc or twelve hundred twenty-nine-d of the vehicle and traffic law and whose fingerprints remain on file with the division of criminal justice services shall be required to undergo fingerprinting for purposes of a new criminal history record check. This subdivision and the rules and regulations promulgated pursuant thereto shall not apply to a school district within a city with a population of one million or more, OR TO SPECIAL EDUCATION SCHOOLS LOCATED WITHIN SUCH CITY. (b) The commissioner, in cooperation with the division of criminal justice services, shall promulgate a form to be provided to all such prospective employees of school districts, charter schools, boards of cooperative educational services, SPECIAL EDUCATION SCHOOLS and nonpub- lic and private elementary and secondary schools that elect to finger- print and seek clearance for prospective employees that shall: (i) inform the prospective employee that the commissioner is required or authorized to request his or her criminal history information from the division of criminal justice services and the federal bureau of investigation and review such information pursuant to this section, and provide a description of the manner in which his or her fingerprint cards will be used upon submission to the division of criminal justice services; (ii) inform the prospective employee that he or she has the right to obtain, review and seek correction of his or her criminal history infor- mation pursuant to regulations and procedures established by the divi- sion of criminal justice services. S 2. Subparagraph (vii) of paragraph (c) of subdivision 30 of section 305 of the education law, as amended by chapter 630 of the laws of 2006, is amended to read as follows: (vii) been informed that in the event his or her employment is termi- nated and such person has not become employed in the same or another school district, charter school, board of cooperative educational services, SPECIAL EDUCATION SCHOOL or nonpublic or private elementary or secondary school within [twelve-months] TWELVE MONTHS of such termi- nation, the commissioner shall notify the division of criminal justice services of such termination, and the division of criminal justice services shall destroy the fingerprints of such person. Such person may request that the commissioner notify the division of criminal justice services that his or her fingerprints shall be destroyed prior to the expiration of such twelve month period in which case the commissioner shall notify the division of criminal justice services and the division shall destroy the fingerprints of such person promptly upon receipt of the request; and S 3. Subdivision 30 of section 305 of the education law is amended by adding a new paragraph (d) to read as follows: (D) AS USED IN THIS SECTION AND SECTION THREE THOUSAND THIRTY-FIVE OF THIS CHAPTER, "SPECIAL EDUCATION SCHOOL" SHALL MEAN A STATE SCHOOL OPER- ATED PURSUANT TO ARTICLE EIGHTY-SEVEN OR EIGHTY-EIGHT OF THIS CHAPTER, A STATE-SUPPORTED SCHOOL OPERATED PURSUANT TO ARTICLE EIGHTY-FIVE OF THIS CHAPTER, AN APPROVED PRIVATE NON-RESIDENTIAL OR RESIDENTIAL SCHOOL FOR THE EDUCATION OF STUDENTS WITH DISABILITIES THAT IS LOCATED WITHIN THE STATE, OR AN APPROVED PROVIDER OF PRESCHOOL SPECIAL EDUCATION SERVICES OR PROGRAMS THAT IS LOCATED WITHIN THE STATE; PROVIDED THAT SUCH TERM SHALL NOT APPLY TO A SCHOOL OR FACILITY OPERATED OR LICENSED BY A STATE AGENCY OTHER THAN THE DEPARTMENT, UNLESS SUCH SCHOOL OR FACILITY IS ALSO
AN APPROVED PRIVATE SCHOOL FOR STUDENTS WITH DISABILITIES OR AN APPROVED PROVIDER UNDER SECTION FORTY-FOUR HUNDRED TEN OF THIS CHAPTER. S 4. Subdivision 1 of section 3035 of the education law, as amended by chapter 630 of the laws of 2006, is amended to read as follows: 1. The commissioner shall submit to the division of criminal justice services two sets of fingerprints of prospective employees as defined in subdivision three of section eleven hundred twenty-five of this chapter received from a school district, charter school or board of cooperative educational services and of prospective employees received from nonpub- lic and private elementary and secondary schools pursuant to title two of this chapter OR A SPECIAL EDUCATION SCHOOL, AS DEFINED IN PARAGRAPH (D) OF SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE OF THIS CHAPTER, PURSUANT TO TITLE SIX OF THIS CHAPTER, OTHER THAN A SPECIAL EDUCATION SCHOOL LOCATED IN THE CITY OF NEW YORK, and the division of criminal justice services processing fee imposed pursuant to subdivision eight-a of section eight hundred thirty-seven of the executive law and any fee imposed by the federal bureau of investigation. The division of criminal justice services and the federal bureau of investigation shall forward such criminal history record to the commissioner in a timely manner. For the purposes of this section, the term "criminal history record" shall mean a record of all convictions of crimes and any pending criminal charges maintained on an individual by the division of criminal justice services and the federal bureau of investigation. All such criminal history records sent to the commissioner pursuant to this subdivision shall be confidential pursuant to the applicable federal and state laws, rules and regulations, and shall not be published or in any way disclosed to persons other than the commissioner, unless otherwise authorized by law. S 5. Subdivision 3-a of section 3035 of the education law, as added by chapter 380 of the laws of 2001, is amended to read as follows: 3-a. Upon request from a prospective employee who has been cleared by the commissioner for employment and/or certification, the commissioner shall have the authority to forward a copy of such criminal history record to the city school district of the city of New York by the most expeditious means available. Furthermore, upon notification that such prospective employee is employed by the city school district of the city of New York OR IS EMPLOYED BY A SPECIAL EDUCATION SCHOOL THAT CONTRACTS WITH THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, the division of criminal justice services shall have the authority to provide subsequent criminal history notifications directly to the city school district of the city of New York. Upon request from a prospective employee who has been cleared for licensure and/or employment by the city school district of the city of New York OR HAS BEEN CLEARED BY THE CITY OF NEW YORK FOR EMPLOYMENT BY A SPECIAL EDUCATION SCHOOL THAT IS LOCATED OUTSIDE OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, such school district OR CITY shall have the authority to forward a copy of the prospective employee's criminal history record to the commissioner, by the most expeditious means available, for the purposes of this section. Further- more, upon notification that such prospective employee is employed by a school district outside the city of New York OR BY A SPECIAL EDUCATION SCHOOL THAT IS LOCATED OUTSIDE OF THE CITY OF NEW YORK, the division of criminal justice services shall have the authority to provide subsequent criminal history notifications directly to the commissioner. S 6. Paragraph (i) of subdivision (a) of section 4212 of the education law, as amended by chapter 32 of the laws of 1992, is amended to read as follows:
(i) consistent with appropriate collective bargaining agreements and applicable provisions of the civil service law, the review and evalu- ation of the backgrounds of and the information supplied by any person applying to be an employee, a volunteer or consultant, which 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, and relevant experiential and educational infor- mation, [and] sign a sworn statement indicating whether the applicant, to the best of his or her knowledge, has ever been convicted of a crime in this state or any other jurisdiction AND, IN THE CASE OF A PROSPEC- TIVE EMPLOYEE, BE FINGERPRINTED FOR PURPOSES OF A CRIMINAL HISTORY BACK- GROUND CHECK PURSUANT TO SUBDIVISION (D) OF THIS SECTION; S 7. Section 4212 of the education law is amended by adding a new subdivision (d) to read as follows: (D) (I) THE SCHOOL SHALL REQUIRE, FOR PURPOSES OF A CRIMINAL HISTORY RECORD CHECK, THE FINGERPRINTING OF ALL PROSPECTIVE EMPLOYEES OF THE SCHOOL PURSUANT TO SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE AND SECTION THREE THOUSAND THIRTY-FIVE OF THIS CHAPTER, EXCEPT WHERE SUCH PROSPECTIVE EMPLOYEES HOLD VALID CLEARANCE PURSUANT TO SUCH SECTION THREE THOUSAND THIRTY-FIVE OR PURSUANT TO SECTION THREE THOUSAND FOUR-B OF THIS CHAPTER OR SECTION FIVE HUNDRED NINE-CC OR TWELVE HUNDRED TWEN- TY-NINE-D OF THE VEHICLE AND TRAFFIC LAW, OR VALID CLEARANCE ISSUED BY THE CITY OF NEW YORK PURSUANT TO LOCAL LAW. PRIOR TO INITIATING THE FINGERPRINTING PROCESS, THE SCHOOL SHALL FURNISH THE PROSPECTIVE EMPLOY- EE WITH THE FORM DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE OF THIS CHAPTER AND SHALL OBTAIN THE APPLI- CANT'S CONSENT TO THE CRIMINAL HISTORY RECORDS SEARCH. EVERY SET OF FINGERPRINTS TAKEN PURSUANT TO THIS SUBDIVISION SHALL BE PROMPTLY SUBMITTED TO THE COMMISSIONER FOR PURPOSES OF CLEARANCE FOR EMPLOYMENT. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COMMIS- SIONER SHALL BE AUTHORIZED TO PROVIDE SUBSEQUENT CRIMINAL HISTORY NOTIFICATIONS TO THE SCHOOL FOR ITS EMPLOYEES. (II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE SCHOOL MAY ESTABLISH PROCEDURES FOR THE CONDITIONAL APPOINTMENT OR EMER- GENCY CONDITIONAL APPOINTMENT OF PROSPECTIVE EMPLOYEES OF THE SCHOOL TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS A BOARD OF EDUCATION OF A UNION FREE SCHOOL DISTRICT PURSUANT TO SUBDIVISION THIRTY-NINE OF SECTION SEVENTEEN HUNDRED NINE OF THIS CHAPTER. S 8. Paragraph (i) of subdivision (a) of section 4314 of the education law, as amended by chapter 32 of the laws of 1992, is amended to read as follows: (i) consistent with appropriate collective agreements and applicable provisions of the civil service law, the review and evaluation of the backgrounds of and the information supplied by any person applying to be an employee, a volunteer or consultant, which 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, and relevant experiential and educational information, [and] sign a sworn statement indicating whether the applicant, to the best of his or her knowledge, has ever been convicted of a crime in this state or any other jurisdiction AND, IN THE CASE OF A PROSPECTIVE EMPLOYEE, BE FING- ERPRINTED FOR PURPOSES OF A CRIMINAL HISTORY BACKGROUND CHECK PURSUANT TO SUBDIVISION (D) OF THIS SECTION; S 9. Section 4314 of the education law is amended by adding a new subdivision (d) to read as follows:
(D)(I) THE DEPARTMENT SHALL REQUIRE, FOR PURPOSES OF A CRIMINAL HISTO- RY RECORD CHECK, THE FINGERPRINTING OF ALL PROSPECTIVE EMPLOYEES OF THE SCHOOL PURSUANT TO SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE AND SECTION THREE THOUSAND THIRTY-FIVE OF THIS CHAPTER, WHO DO NOT HOLD VALID CLEARANCE PURSUANT TO SUCH SECTION THREE THOUSAND THIRTY-FIVE OR PURSUANT TO SECTION THREE THOUSAND FOUR-B OF THIS CHAPTER OR SECTION FIVE HUNDRED NINE-CC OR TWELVE HUNDRED TWENTY-NINE-D OF THE VEHICLE AND TRAFFIC LAW, OR VALID CLEARANCE ISSUED BY THE CITY OF NEW YORK PURSUANT TO LOCAL LAW. PRIOR TO INITIATING THE FINGERPRINTING PROCESS, THE DEPARTMENT SHALL FURNISH THE PROSPECTIVE EMPLOYEE WITH THE FORM DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE OF THIS CHAPTER AND SHALL OBTAIN THE APPLICANT'S CONSENT TO THE CRIMINAL HISTORY RECORDS SEARCH. EVERY SET OF FINGERPRINTS TAKEN PURSUANT TO THIS SUBDIVISION SHALL BE PROMPTLY SUBMITTED TO THE COMMIS- SIONER FOR PURPOSES OF CLEARANCE FOR EMPLOYMENT. (II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COMMISSIONER MAY ESTABLISH PROCEDURES FOR THE CONDITIONAL APPOINTMENT OR EMERGENCY CONDITIONAL APPOINTMENT OF PROSPECTIVE EMPLOYEES OF THE SCHOOL BY THE DEPARTMENT TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS A BOARD OF EDUCATION OF A UNION FREE SCHOOL DISTRICT PURSUANT TO SUBDIVI- SION THIRTY-NINE OF SECTION SEVENTEEN HUNDRED NINE OF THIS CHAPTER. S 10. Paragraph (i) of subdivision (a) of section 4358 of the educa- tion law, as amended by chapter 32 of the laws of 1992, is amended to read as follows: (i) consistent with appropriate collective bargaining agreements and applicable provisions of the civil service law, the review and evalu- ation of the backgrounds of and the information supplied by any person applying to be an employee, a volunteer or consultant, which 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 and relevant experiential and educational informa- tion, [and] sign a sworn statement indicating whether the applicant, to the best of his or her knowledge, has ever been convicted of a crime in this state or any other jurisdiction AND, IN THE CASE OF A PROSPECTIVE EMPLOYEE, BE FINGERPRINTED FOR PURPOSES OF A CRIMINAL HISTORY BACKGROUND CHECK PURSUANT TO SUBDIVISION (D) OF THIS SECTION; S 11. Section 4358 of the education law is amended by adding a new subdivision (d) to read as follows: (D)(I) THE DEPARTMENT SHALL REQUIRE, FOR PURPOSES OF A CRIMINAL HISTO- RY RECORD CHECK, THE FINGERPRINTING OF ALL PROSPECTIVE EMPLOYEES OF THE SCHOOL PURSUANT TO SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE AND SECTION THREE THOUSAND THIRTY-FIVE OF THIS CHAPTER, WHO DO NOT HOLD VALID CLEARANCE PURSUANT TO SUCH SECTION THREE THOUSAND THIRTY-FIVE OR PURSUANT TO SECTION THREE THOUSAND FOUR-B OF THIS CHAPTER OR SECTION FIVE HUNDRED NINE-CC OR TWELVE HUNDRED TWENTY-NINE-D OF THE VEHICLE AND TRAFFIC LAW, OR VALID CLEARANCE ISSUED BY THE CITY OF NEW YORK PURSUANT TO LOCAL LAW. PRIOR TO INITIATING THE FINGERPRINTING PROCESS, THE DEPARTMENT SHALL FURNISH THE PROSPECTIVE EMPLOYEE WITH THE FORM DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE OF THIS CHAPTER AND SHALL OBTAIN THE APPLICANT'S CONSENT TO THE CRIMINAL HISTORY RECORDS SEARCH. EVERY SET OF FINGERPRINTS TAKEN PURSUANT TO THIS SUBDIVISION SHALL BE PROMPTLY SUBMITTED TO THE COMMIS- SIONER FOR PURPOSES OF CLEARANCE FOR EMPLOYMENT. (II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COMMISSIONER MAY ESTABLISH PROCEDURES FOR THE CONDITIONAL APPOINTMENT OR EMERGENCY CONDITIONAL APPOINTMENT OF PROSPECTIVE EMPLOYEES OF THE SCHOOL
BY THE DEPARTMENT TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS A BOARD OF EDUCATION OF A UNION FREE SCHOOL DISTRICT PURSUANT TO SUBDIVI- SION THIRTY-NINE OF SECTION SEVENTEEN HUNDRED NINE OF THIS CHAPTER. S 12. Paragraph (a) of subdivision 11 of section 4403 of the education law, as amended by chapter 32 of the laws of 1992, is amended to read as follows: (a) consistent with appropriate collective bargaining agreements and applicable provisions of the civil service law, the review and evalu- ation of the backgrounds of and the information supplied by any person applying to be an employee, a volunteer or consultant, which 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, and relevant experiential and educational quali- fications [and], sign a sworn statement indicating whether the appli- cant, to the best of his or her knowledge has ever been convicted of a crime in this state or any other jurisdiction AND, IN THE CASE OF A PROSPECTIVE EMPLOYEE, BE FINGERPRINTED FOR PURPOSES OF A CRIMINAL HISTO- RY BACKGROUND CHECK PURSUANT TO SUBDIVISION TWENTY-ONE OF THIS SECTION; S 13. Section 4403 of the education law is amended by adding a new subdivision 21 to read as follows: 21. A. THE COMMISSIONER SHALL REQUIRE, FOR PURPOSES OF A CRIMINAL HISTORY RECORD CHECK, THE FINGERPRINTING OF ALL PROSPECTIVE EMPLOYEES OF APPROVED PRIVATE RESIDENTIAL AND NON-RESIDENTIAL SCHOOLS WHICH ARE LOCATED WITHIN THE STATE BY SUCH SCHOOLS PURSUANT TO SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE AND SECTION THREE THOUSAND THIRTY-FIVE OF THIS CHAPTER, EXCEPT WHERE SUCH PROSPECTIVE EMPLOYEES HOLD VALID CLEAR- ANCE PURSUANT TO SUCH SECTION THREE THOUSAND THIRTY-FIVE OR PURSUANT TO SECTION THREE THOUSAND FOUR-B OF THIS CHAPTER OR SECTION FIVE HUNDRED NINE-CC OR TWELVE HUNDRED TWENTY-NINE-D OF THE VEHICLE AND TRAFFIC LAW, OR VALID CLEARANCE ISSUED BY THE CITY OF NEW YORK PURSUANT TO LOCAL LAW. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO PROGRAMS OPERATED PURSUANT TO SECTION FORTY-FOUR HUNDRED EIGHT OF THIS ARTICLE BY A SCHOOL DISTRICT OR BOARD OF COOPERATIVE EDUCATIONAL SERVICES. PRIOR TO INITIAT- ING THE FINGERPRINTING PROCESS, THE SCHOOL SHALL FURNISH THE PROSPECTIVE EMPLOYEE WITH THE FORM DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE OF THIS CHAPTER AND SHALL OBTAIN THE APPLICANT'S CONSENT TO THE CRIMINAL HISTORY RECORDS SEARCH. EVERY SET OF FINGERPRINTS TAKEN PURSUANT TO THIS SUBDIVISION SHALL BE PROMPTLY SUBMITTED TO THE COMMISSIONER FOR PURPOSES OF CLEARANCE FOR EMPLOYMENT. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COMMIS- SIONER SHALL BE AUTHORIZED TO PROVIDE SUBSEQUENT CRIMINAL HISTORY NOTIFICATIONS TO APPROVED PRIVATE SCHOOLS FOR THEIR EMPLOYEES. B. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE APPROVED PRIVATE SCHOOL MAY ESTABLISH PROCEDURES FOR THE CONDITIONAL APPOINTMENT OR EMERGENCY CONDITIONAL APPOINTMENT OF PROSPECTIVE EMPLOY- EES OF THE SCHOOL TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS A BOARD OF EDUCATION OF A UNION FREE SCHOOL DISTRICT PURSUANT TO SUBDIVI- SION THIRTY-NINE OF SECTION SEVENTEEN HUNDRED NINE OF THIS CHAPTER. S 14. Section 4410 of the education law is amended by adding a new subdivision 9-e to read as follows: 9-E. FINGERPRINTING OF PROSPECTIVE EMPLOYEES. A. THE COMMISSIONER SHALL REQUIRE, FOR PURPOSES OF A CRIMINAL HISTORY RECORD CHECK, THE FINGERPRINTING OF ALL PROSPECTIVE EMPLOYEES OF APPROVED PROVIDERS OF SPECIAL SERVICES OR PROGRAMS THAT ARE LOCATED WITHIN THE STATE PURSUANT TO SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE AND SECTION THREE THOUSAND THIRTY-FIVE OF THIS CHAPTER, EXCEPT WHERE SUCH PROSPECTIVE
EMPLOYEES HOLD VALID CLEARANCE PURSUANT TO SUCH SECTION THREE THOUSAND THIRTY-FIVE OR PURSUANT TO SECTION THREE THOUSAND FOUR-B OF THIS CHAPTER OR SECTION FIVE HUNDRED NINE-CC OR TWELVE HUNDRED TWENTY-NINE-D OF THE VEHICLE AND TRAFFIC LAW OR A VALID CLEARANCE ISSUED BY THE CITY OF NEW YORK PURSUANT TO LOCAL LAW. AN INDIVIDUAL WHO PROVIDES RELATED SERVICES PURSUANT TO THIS SECTION SHALL BE DEEMED A PROSPECTIVE EMPLOYEE FOR PURPOSES OF THIS SUBDIVISION AND SHALL BE RESPONSIBLE FOR SUBMITTING HIS OR HER FINGERPRINTS TO THE COMMISSIONER FOR PURPOSES OF RECEIVING CLEAR- ANCE FOR EMPLOYMENT PRIOR TO HIS OR HER INCLUSION ON A LIST OF RELATED SERVICE PROVIDERS MAINTAINED BY THE MUNICIPALITY OR BOARD PURSUANT TO PARAGRAPH C OF SUBDIVISION NINE OF THIS SECTION. PRIOR TO INITIATING THE FINGERPRINTING PROCESS, THE PROVIDER SHALL FURNISH ITS PROSPECTIVE EMPLOYEE WITH THE FORM DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE OF THIS CHAPTER AND SHALL OBTAIN THE APPLICANT'S CONSENT TO THE CRIMINAL HISTORY RECORDS SEARCH. EVERY SET OF FINGERPRINTS TAKEN PURSUANT TO THIS SUBDIVISION SHALL BE PROMPTLY SUBMITTED TO THE COMMISSIONER FOR PURPOSES OF CLEARANCE FOR EMPLOYMENT. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COMMIS- SIONER SHALL BE AUTHORIZED TO PROVIDE SUBSEQUENT CRIMINAL HISTORY NOTIFICATIONS TO APPROVED PROVIDERS FOR THEIR EMPLOYEES. IN THE CASE OF A PROSPECTIVE EMPLOYEE WHO IS EMPLOYED BY THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, THE COMMISSIONER SHALL BE AUTHORIZED TO PROVIDE SUBSEQUENT CRIMINAL HISTORY NOTIFICATIONS DIRECTLY TO THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK. B. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE APPROVED PROVIDER MAY ESTABLISH PROCEDURES FOR THE CONDITIONAL APPOINT- MENT OR EMERGENCY CONDITIONAL APPOINTMENT OF PROSPECTIVE EMPLOYEES OF THE PROVIDER TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS A BOARD OF EDUCATION OF A UNION FREE SCHOOL DISTRICT PURSUANT TO SUBDIVISION THIRTY-NINE OF SECTION SEVENTEEN HUNDRED NINE OF THIS CHAPTER. C. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COMMISSIONER MAY ESTABLISH PROCEDURES FOR THE CONDITIONAL APPOINTMENT OR EMERGENCY CONDITIONAL APPOINTMENT OF INDIVIDUALS WHO PROVIDE RELATED SERVICES PURSUANT TO THIS SECTION TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS A BOARD OF EDUCATION OF A UNION FREE SCHOOL DISTRICT PURSUANT TO SUBDIVISION THIRTY-NINE OF SECTION SEVENTEEN HUNDRED NINE OF THIS CHAPTER. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRA- RY, THE COMMISSIONER SHALL PROVIDE EACH MUNICIPALITY OR BOARD IN WHICH SUCH INDIVIDUAL SEEKS TO BE INCLUDED ON A LIST OF RELATED SERVICES OR SPECIAL EDUCATION ITINERANT SERVICES PROVIDERS WITH A COPY OF SUCH INDI- VIDUAL'S CRIMINAL CLEARANCE OR DENIAL OF CRIMINAL CLEARANCE, AND IN THE EVENT OF A DENIAL OF CLEARANCE, SUCH MUNICIPALITY OR BOARD SHALL REMOVE THE INDIVIDUAL FROM SUCH LIST UNLESS CRIMINAL CLEARANCE IS SUBSEQUENTLY ISSUED BY THE COMMISSIONER. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COMMISSIONER SHALL BE AUTHORIZED TO PROVIDE SUBSE- QUENT CRIMINAL HISTORY NOTIFICATIONS TO EACH MUNICIPALITY OR BOARD IN WHICH SUCH INDIVIDUAL IS INCLUDED ON A LIST OF RELATED SERVICE PROVID- ERS. S 15. Subdivisions 3 and 5 of section 1125 of the education law, as added by chapter 180 of the laws of 2000, are amended to read as follows: 3. "Employee" shall mean any person receiving compensation from a school district, A SPECIAL EDUCATION SCHOOL DISTRICT AS DEFINED IN PARA- GRAPH (D) OF SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE OF THIS CHAPTER or employee of a contracted service provider or worker placed within the school under a public assistance employment program, pursuant
to title nine-B of article five of the social services law, and consist- ent with the provisions of such title for the provision of services to such district, its students or employees, directly or through contract, whereby such services performed by such person involve direct student contact. 5. "Educational setting" shall mean the building and grounds of a public school district, A SPECIAL EDUCATION SCHOOL DISTRICT AS DEFINED IN PARAGRAPH (D) OF SUBDIVISION THIRTY OF SECTION THREE HUNDRED FIVE OF THIS CHAPTER, the vehicles provided by the school district OR SPECIAL EDUCATION SCHOOL for the transportation of students to and from school buildings, field trips, co-curricular and extra-curricular activities both on and off school district grounds, all co-curricular and extra- curricular activity sites, and any other location where direct contact between an employee or volunteer and a child has allegedly occurred. S 16. Subdivision 3 of section 3035 of the education law, as amended by section 8 of chapter 630 of the laws of 2006, is amended to read as follows: 3. After receipt of a criminal history record from the division of criminal justice services and the federal bureau of investigation the commissioner shall promptly notify the appropriate school district, charter school, board of cooperative educational services, SPECIAL EDUCATION SCHOOL or nonpublic or private elementary or secondary school whether the prospective employee to which such report relates is cleared for employment based upon his or her criminal history. All determi- nations to grant or deny clearance for employment pursuant to this subdivision shall be performed in accordance with subdivision sixteen of section two hundred ninety-six of the executive law and article twenty- three-A of the correction law. When the commissioner denies a prospec- tive employee clearance for employment, such prospective employee shall be afforded notice and the right to be heard and offer proof in oppo- sition to such determination in accordance with the regulations of the commissioner. S 17. This act shall take effect on the one hundred eightieth day after it shall have become a law; provided that: (a) the commissioner of education is authorized to promulgate any and all rules and regulations and take any other measures necessary to implement the provisions of this act on its effective date on or before such date; (b) the provisions of this act shall apply to prospective employees of special education schools who are appointed on or after such effective date and to individual providers of preschool related services who are placed on lists maintained by the municipality pursuant to subdivision 9 of section 4410 of the education law on and after such effective date.

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