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) 2019-06-19 - referred to education [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.
                                                                   LBD07679-07-9

        S. 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 purposes

        S. 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 name

        S. 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 and

        S. 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.
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