Bill Text: NY S04862 | 2019-2020 | General Assembly | Amended
Bill Title: Relates to fingerprinting and background checks of construction contractors.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Engrossed - Dead) 2020-01-08 - REFERRED TO CHILDREN AND FAMILIES [S04862 Detail]
Download: New_York-2019-S04862-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4862--B 2019-2020 Regular Sessions IN SENATE March 27, 2019 ___________ Introduced by Sens. MARTINEZ, BROOKS, GAUGHRAN, KAMINSKY, THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- 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- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07679-07-9S. 4862--B 2 1 ing of prospective employees, as defined in section eleven hundred twen- 2 ty-five of this chapter, of school districts, charter schools [and], 3 boards of cooperative educational services, and construction contractors 4 and authorizing the fingerprinting of prospective employees of nonpublic 5 and private elementary and secondary schools, and for the use of infor- 6 mation derived from searches of the records of the division of criminal 7 justice services and the federal bureau of investigation based on the 8 use of such fingerprints. The commissioner shall also develop a form for 9 use by school districts, charter schools, boards of cooperative educa- 10 tional services, construction contractors, and nonpublic and private 11 elementary and secondary schools in connection with the submission of 12 fingerprints that contains the specific job title sought or the 13 construction or maintenance project on which the individual will be 14 working, and any other information that may be relevant to consideration 15 of the applicant. The commissioner shall also create or expand the 16 functionality of internet based systems to provide access to 17 construction contractors upon application of the construction contractor 18 to the commissioner to enable them to be able to review fingerprint 19 results and subsequent arrest notifications based on the fingerprint and 20 background check data by logging into a protected web portal, entering 21 in the employee name and social security number, which would provide 22 access to see the fingerprint results. The commissioner shall also 23 establish a form for the recordation of allegations of child abuse in an 24 educational setting, as required pursuant to section eleven hundred 25 twenty-six of this chapter. No person who has been fingerprinted pursu- 26 ant to section three thousand four-b of this chapter or pursuant to 27 section five hundred nine-cc or twelve hundred twenty-nine-d of the 28 vehicle and traffic law and whose fingerprints remain on file with the 29 division of criminal justice services shall be required to undergo fing- 30 erprinting for purposes of a new criminal history record check. This 31 subdivision and the rules and regulations promulgated pursuant thereto 32 shall not apply to a school district within a city with a population of 33 one million or more. 34 § 3. The opening paragraph of paragraph (b) of subdivision 30 of 35 section 305 of the education law, as amended by chapter 630 of the laws 36 of 2006, is amended to read as follows: 37 The commissioner, in cooperation with the division of criminal justice 38 services, shall promulgate a form to be provided to all such prospective 39 employees of school districts, charter schools, boards of cooperative 40 educational services, construction contractors and nonpublic and private 41 elementary and secondary schools that elect to fingerprint and seek 42 clearance for prospective employees that shall: 43 § 4. Paragraph (d) of subdivision 30 of section 305 of the education 44 law, as amended by chapter 630 of the laws of 2006, is amended to read 45 as follows: 46 (d) The commissioner shall develop forms to be provided to all school 47 districts, charter schools, boards of cooperative educational services, 48 construction contractors and to all nonpublic and private elementary and 49 secondary schools that elect to fingerprint their prospective employees, 50 to be completed and signed by prospective employees when conditional 51 appointment or emergency conditional appointment is offered. 52 § 5. Subdivision 31 of section 305 of the education law, as added by 53 chapter 380 of the laws of 2001, is amended to read as follows: 54 31. The commissioner shall direct that each school district, charter 55 school, [and] private elementary and secondary school, and construction 56 contractor appoint a designated educational official for the purposesS. 4862--B 3 1 set forth in section 380.90 of the criminal procedure law, subdivision 2 seventeen of section 301.2 and subdivision three of section 380.1 of the 3 family court act. In addition, the commissioner shall promulgate rules 4 and regulations, in consultation with the office of court adminis- 5 tration, to facilitate electronic access by the courts to the names and 6 addresses of such designated educational officials. 7 § 6. Subdivision 1 of section 3035 of the education law, as amended by 8 chapter 630 of the laws of 2006, is amended to read as follows: 9 1. [The] Prior to the awarding of a contract to perform services, the 10 commissioner shall submit to the division of criminal justice services 11 two sets of fingerprints of prospective employees as defined in subdivi- 12 sion three of section eleven hundred twenty-five of this chapter 13 received from a school district, charter school or board of cooperative 14 educational services, construction contractors and of prospective 15 employees received from nonpublic and private elementary and secondary 16 schools pursuant to title two of this chapter, and the division of crim- 17 inal justice services processing fee imposed pursuant to subdivision 18 eight-a of section eight hundred thirty-seven of the executive law and 19 any fee imposed by the federal bureau of investigation. The division of 20 criminal justice services and the federal bureau of investigation shall 21 forward such criminal history record to the commissioner in a timely 22 manner. For the purposes of this section, the term "criminal history 23 record" shall mean a record of all convictions of crimes and any pending 24 criminal charges maintained on an individual by the division of criminal 25 justice services and the federal bureau of investigation. All such crim- 26 inal history records sent to the commissioner pursuant to this subdivi- 27 sion shall be confidential pursuant to the applicable federal and state 28 laws, rules and regulations, and shall not be published or in any way 29 disclosed to persons other than the commissioner, unless otherwise 30 authorized by law. 31 § 7. Subdivision 3 of section 3035 of the education law, as amended by 32 section 7 of chapter 630 of the laws of 2006, is amended to read as 33 follows: 34 3. (a) Clearance. (i) After receipt of a criminal history record from 35 the division of criminal justice services and the federal bureau of 36 investigation the commissioner shall promptly notify the appropriate 37 school district, charter school, board of cooperative educational 38 services, construction contractors or nonpublic or private elementary or 39 secondary school whether the prospective employee to which such report 40 relates is cleared for employment or for access to the proposed project 41 to perform construction and/or maintenance work based upon his or her 42 criminal history. All determinations to grant or deny clearance for 43 employment pursuant to this paragraph shall be performed in accordance 44 with subdivision sixteen of section two hundred ninety-six of the execu- 45 tive law and article twenty-three-A of the correction law. When the 46 commissioner denies a prospective employee clearance for employment, 47 such prospective employee shall be afforded notice and the right to be 48 heard and offer proof in opposition to such determination in accordance 49 with the regulations of the commissioner. 50 (ii) Notwithstanding any other provisions of law to the contrary, 51 information regarding the results of the investigation of current or 52 prospective employees of construction contractors and subsequent changes 53 in status related to such employees shall be transmitted via an inter- 54 net-based system made available to construction contractors upon appli- 55 cation of the construction contractor to the commissioner where, by 56 logging into a protected web portal and entering in the employee nameS. 4862--B 4 1 and social security number, and construction contractors would be able 2 to access fingerprint results, whether the employee first completed a 3 form provided to them by the construction contractors, or received a 4 form previously from a school district, charter school or board of coop- 5 erative educational services. Nothing in this section shall require an 6 employee who has already submitted their fingerprints to the commission- 7 er to have to submit them again, so long as they were not destroyed. 8 (b) Conditional clearance. When the commissioner receives a request 9 for a determination on the conditional clearance of a prospective 10 employee, the commissioner, after receipt of a criminal history record 11 from the division of criminal justice services, shall promptly notify 12 the prospective employee and the appropriate school district, charter 13 school, board of cooperative educational services, construction contrac- 14 tors or nonpublic or private elementary or secondary school that the 15 prospective employee to which such report relates is conditionally 16 cleared for employment or work on a construction or maintenance project 17 based upon his or her criminal history or that more time is needed to 18 make the determination. If the commissioner determines that more time is 19 needed, the notification shall include a good faith estimate of the 20 amount of additional time needed. Such notification shall be made within 21 fifteen business days after the commissioner receives the prospective 22 employee's fingerprints. All determinations to grant or deny conditional 23 clearance for employment pursuant to this paragraph shall be performed 24 in accordance with subdivision sixteen of section two hundred ninety-six 25 of the executive law and article twenty-three-A of the correction law. 26 § 8. Subdivision 3 of section 3035 of the education law, as amended by 27 section 8 of chapter 630 of the laws of 2006, is amended to read as 28 follows: 29 3. After receipt of a criminal history record from the division of 30 criminal justice services and the federal bureau of investigation the 31 commissioner shall promptly notify the appropriate school district, 32 charter school, board of cooperative educational services, construction 33 contractor, or nonpublic or private elementary or secondary school 34 whether the prospective employee to which such report relates is cleared 35 for employment or for access to a proposed project site to perform 36 construction and/or maintenance work based upon his or her criminal 37 history. All determinations to grant or deny clearance for employment or 38 ability to work on a proposed project pursuant to this subdivision shall 39 be performed in accordance with subdivision sixteen of section two 40 hundred ninety-six of the executive law and article twenty-three-A of 41 the correction law. When the commissioner denies a prospective employee 42 clearance for employment, such prospective employee shall be afforded 43 notice and the right to be heard and offer proof in opposition to such 44 determination in accordance with the regulations of the commissioner. 45 § 9. Section 1125 of the education law is amended by adding a new 46 subdivision 11 to read as follows: 47 11. "Construction contractor" shall mean any individual or entity 48 seeking permission either through a bid or otherwise to perform 49 construction and/or maintenance work on facilities occupied at any point 50 by students of the school district, charter school, board of cooperative 51 educational services, or nonpublic school. 52 § 10. Subdivision 3 of section 424-a of the social services law, as 53 amended by section 14-a of part H of chapter 56 of the laws of 2019, is 54 amended to read as follows: 55 3. For purposes of this section, the term "provider" or "provider 56 agency" shall mean: an authorized agency; the office of children andS. 4862--B 5 1 family services; juvenile detention facilities subject to the certif- 2 ication of the office of children and family services; programs estab- 3 lished pursuant to article nineteen-H of the executive law; non-residen- 4 tial or residential programs or facilities licensed or operated by the 5 office of mental health or the office for people with developmental 6 disabilities except family care homes; including head start programs 7 which are funded pursuant to title V of the federal economic opportunity 8 act of nineteen hundred sixty-four, as amended; early intervention 9 service established pursuant to section twenty-five hundred forty of the 10 public health law; preschool services established pursuant to section 11 forty-four hundred ten of the education law; construction contractors as 12 defined in subdivision eleven of section eleven hundred twenty-five of 13 the education law; special act school districts as enumerated in chapter 14 five hundred sixty-six of the laws of nineteen hundred sixty-seven, as 15 amended; programs and facilities licensed by the office of alcoholism 16 and substance abuse services; residential schools which are operated, 17 supervised or approved by the education department; health homes, or any 18 subcontractor of such health homes, who contracts with or is approved or 19 otherwise authorized by the department of health to provide health home 20 services to all those enrolled pursuant to a diagnosis of a develop- 21 mental disability as defined in subdivision twenty-two of section 1.03 22 of the mental hygiene law and enrollees who are under twenty-one years 23 of age under section three hundred sixty-five-l of this chapter, or any 24 entity that provides home and community based services to enrollees who 25 are under twenty-one years of age under a demonstration program pursuant 26 to section eleven hundred fifteen of the federal social security act; 27 publicly-funded emergency shelters for families with children, provided, 28 however, for purposes of this section, when the provider or provider 29 agency is a publicly-funded emergency shelter for families with chil- 30 dren, then all references in this section to the "potential for regular 31 and substantial contact with individuals who are cared for by the agen- 32 cy" shall mean the potential for regular and substantial contact with 33 children who are served by such shelter; and any other facility or 34 provider agency, as defined in subdivision four of section four hundred 35 eighty-eight of this chapter, in regard to the employment of staff, or 36 use of providers of goods and services and staff of such providers, 37 consultants, interns and volunteers. 38 § 11. Paragraph (a) of subdivision 2 of section 390-a of the social 39 services law, as amended by chapter 416 of the laws of 2000, is amended 40 to read as follows: 41 (a) review and evaluate the backgrounds of and information supplied by 42 any person applying to be a child day care center or school-age child 43 care program employee or volunteer or group family day care assistant, a 44 provider of family day care or group family day care, or a director of a 45 child day care center, head start day care center or school-age child 46 care program or a construction contractor, or a construction contrac- 47 tor's employee who services any of these entities. Such procedures shall 48 include but not be limited to the following requirements: that the 49 applicant set forth his or her employment history, provide personal and 50 employment references; submit such information as is required for 51 screening with the statewide central register of child abuse and 52 maltreatment in accordance with the provisions of section four hundred 53 twenty-four-a of this article; sign a sworn statement indicating wheth- 54 er, to the best of his or her knowledge, he or she has ever been 55 convicted of a crime in this state or any other jurisdiction; and 56 provide his or her fingerprints for submission to the division of crimi-S. 4862--B 6 1 nal justice services in accordance with the provisions of section three 2 hundred ninety-b of this title. Notwithstanding the provisions of this 3 paragraph, where a program has people working on their premises through 4 a construction contractor as defined in subdivision eleven of section 5 eleven hundred twenty-five of the education law and such construction 6 contractor has properly performed checks on its employees as a provider 7 or provider agency under section four hundred twenty-four-a of this 8 chapter, then such program does not need to run the check itself on the 9 construction contractor employees working on their site; 10 § 12. This act shall take effect immediately; provided however that: 11 (a) the amendments to section 1125 of the education law made by section 12 one of this act shall take effect on the same date and in the same 13 manner as chapter 363 of the laws of 2018, takes effect; (b) the amend- 14 ments to paragraph (d) of subdivision 30 of section 305 of the education 15 law made by section four of this act shall not affect the repeal of such 16 paragraph and shall be deemed repealed therewith; and (c) the amendments 17 to subdivision 3 of section 3035 of the education law made by section 18 seven of this act shall be subject to the expiration and reversion of 19 such subdivision, pursuant to section 12 of chapter 147 of the laws of 20 2001, as amended, when upon such date the provisions of section eight of 21 this act shall take effect.