Bill Text: NY S04862 | 2019-2020 | General Assembly | Amended


Bill Title: Relates to fingerprinting and background checks of construction contractors.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced) 2019-04-17 - PRINT NUMBER 4862A [S04862 Detail]

Download: New_York-2019-S04862-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         4862--A
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 27, 2019
                                       ___________
        Introduced  by Sens. MARTINEZ, 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 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-2) of subdivision 3 of section 2854 of the education
    16  law is amended by adding a new subparagraph (v) to read as follows:
    17    (v) Notwithstanding anything to the  contrary  in  this  section,  the
    18  board  of  trustees of a charter school shall not be required to oversee
    19  the fingerprinting process for employees of a construction contractor so
    20  long as they have engaged a construction  contractor  who  has  complied
    21  with the fingerprinting requirements elsewhere in this chapter.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07679-06-9

        S. 4862--A                          2
     1    §  3.  Paragraph (a) of subdivision 30 of section 305 of the education
     2  law, as amended by chapter 630 of the laws of 2006, is amended  to  read
     3  as follows:
     4    (a)  The  commissioner,  in  cooperation with the division of criminal
     5  justice services and in accordance with  all  applicable  provisions  of
     6  law,  shall promulgate rules and regulations to require the fingerprint-
     7  ing of prospective employees, as defined in section eleven hundred twen-
     8  ty-five of this chapter, of school  districts,  charter  schools  [and],
     9  boards of cooperative educational services, and construction contractors
    10  and authorizing the fingerprinting of prospective employees of nonpublic
    11  and  private elementary and secondary schools, and for the use of infor-
    12  mation derived from searches of the records of the division of  criminal
    13  justice  services  and  the federal bureau of investigation based on the
    14  use of such fingerprints. The commissioner shall also develop a form for
    15  use by school districts, charter schools, boards of  cooperative  educa-
    16  tional  services,  construction  contractors,  and nonpublic and private
    17  elementary and secondary schools in connection with  the  submission  of
    18  fingerprints  that  contains  the  specific  job  title  sought  or  the
    19  construction or maintenance project on  which  the  individual  will  be
    20  working, and any other information that may be relevant to consideration
    21  of  the  applicant.    The  commissioner shall also create or expand the
    22  functionality  of  internet  based  systems   to   provide   access   to
    23  construction contractors upon application of the construction contractor
    24  to  the  commissioner  to  enable  them to be able to review fingerprint
    25  results and subsequent arrest notifications based on the fingerprint and
    26  background check data by logging into a protected web  portal,  entering
    27  in  the  employee  name  and social security number, which would provide
    28  access to see the  fingerprint  results.  The  commissioner  shall  also
    29  establish a form for the recordation of allegations of child abuse in an
    30  educational  setting,  as  required  pursuant  to section eleven hundred
    31  twenty-six of this chapter. No person who has been fingerprinted  pursu-
    32  ant  to  section  three  thousand  four-b of this chapter or pursuant to
    33  section five hundred nine-cc or  twelve  hundred  twenty-nine-d  of  the
    34  vehicle  and  traffic law and whose fingerprints remain on file with the
    35  division of criminal justice services shall be required to undergo fing-
    36  erprinting for purposes of a new criminal  history  record  check.  This
    37  subdivision  and  the rules and regulations promulgated pursuant thereto
    38  shall not apply to a school district within a city with a population  of
    39  one million or more.
    40    §  4.  The  opening  paragraph  of  paragraph (b) of subdivision 30 of
    41  section 305 of the education law, as amended by chapter 630 of the  laws
    42  of 2006, is amended to read as follows:
    43    The commissioner, in cooperation with the division of criminal justice
    44  services, shall promulgate a form to be provided to all such prospective
    45  employees  of  school  districts, charter schools, boards of cooperative
    46  educational services, construction contractors and nonpublic and private
    47  elementary and secondary schools that  elect  to  fingerprint  and  seek
    48  clearance for prospective employees that shall:
    49    §  5.  Paragraph (d) of subdivision 30 of section 305 of the education
    50  law, as amended by chapter 630 of the laws of 2006, is amended  to  read
    51  as follows:
    52    (d)  The commissioner shall develop forms to be provided to all school
    53  districts, charter schools, boards of cooperative educational  services,
    54  construction contractors and to all nonpublic and private elementary and
    55  secondary schools that elect to fingerprint their prospective employees,

        S. 4862--A                          3
     1  to  be  completed  and  signed by prospective employees when conditional
     2  appointment or emergency conditional appointment is offered.
     3    §  6.  Subdivision 31 of section 305 of the education law, as added by
     4  chapter 380 of the laws of 2001, is amended to read as follows:
     5    31. The commissioner shall direct that each school  district,  charter
     6  school,  [and] private elementary and secondary school, and construction
     7  contractor appoint a designated educational official  for  the  purposes
     8  set  forth  in section 380.90 of the criminal procedure law, subdivision
     9  seventeen of section 301.2 and subdivision three of section 380.1 of the
    10  family court act. In addition, the commissioner shall  promulgate  rules
    11  and  regulations,  in  consultation  with  the  office of court adminis-
    12  tration, to facilitate electronic access by the courts to the names  and
    13  addresses of such designated educational officials.
    14    § 7. Subdivision 1 of section 3035 of the education law, as amended by
    15  chapter 630 of the laws of 2006, is amended to read as follows:
    16    1.  [The] Prior to the awarding of a contract to perform services, the
    17  commissioner shall submit to the division of criminal  justice  services
    18  two sets of fingerprints of prospective employees as defined in subdivi-
    19  sion  three  of  section  eleven  hundred  twenty-five  of  this chapter
    20  received from a school district, charter school or board of  cooperative
    21  educational   services,  construction  contractors  and  of  prospective
    22  employees received from nonpublic and private elementary  and  secondary
    23  schools pursuant to title two of this chapter, and the division of crim-
    24  inal  justice  services  processing  fee imposed pursuant to subdivision
    25  eight-a of section eight hundred thirty-seven of the executive  law  and
    26  any fee imposed by the federal bureau of investigation.  The division of
    27  criminal  justice services and the federal bureau of investigation shall
    28  forward such criminal history record to the  commissioner  in  a  timely
    29  manner.  For  the  purposes  of this section, the term "criminal history
    30  record" shall mean a record of all convictions of crimes and any pending
    31  criminal charges maintained on an individual by the division of criminal
    32  justice services and the federal bureau of investigation. All such crim-
    33  inal history records sent to the commissioner pursuant to this  subdivi-
    34  sion  shall be confidential pursuant to the applicable federal and state
    35  laws, rules and regulations, and shall not be published or  in  any  way
    36  disclosed  to  persons  other  than  the  commissioner, unless otherwise
    37  authorized by law.
    38    § 8. Subdivision 3 of section 3035 of the education law, as amended by
    39  section 7 of chapter 630 of the laws of 2006,  is  amended  to  read  as
    40  follows:
    41    3.  (a) Clearance. (i) After receipt of a criminal history record from
    42  the division of criminal justice services  and  the  federal  bureau  of
    43  investigation  the  commissioner  shall  promptly notify the appropriate
    44  school  district,  charter  school,  board  of  cooperative  educational
    45  services, construction contractors or nonpublic or private elementary or
    46  secondary  school  whether the prospective employee to which such report
    47  relates is cleared for employment or for access to the proposed  project
    48  to  perform  construction  and/or maintenance work based upon his or her
    49  criminal history. All determinations to  grant  or  deny  clearance  for
    50  employment  pursuant  to this paragraph shall be performed in accordance
    51  with subdivision sixteen of section two hundred ninety-six of the execu-
    52  tive law and article twenty-three-A of  the  correction  law.  When  the
    53  commissioner  denies  a  prospective  employee clearance for employment,
    54  such prospective employee shall be afforded notice and the right  to  be
    55  heard  and offer proof in opposition to such determination in accordance
    56  with the regulations of the commissioner.

        S. 4862--A                          4
     1    (ii) Notwithstanding any other provisions  of  law  to  the  contrary,
     2  information  regarding  the  results  of the investigation of current or
     3  prospective employees of construction contractors and subsequent changes
     4  in status related to such employees shall be transmitted via  an  inter-
     5  net-based  system made available to construction contractors upon appli-
     6  cation of the construction contractor  to  the  commissioner  where,  by
     7  logging  into  a  protected web portal and entering in the employee name
     8  and social security number, and construction contractors would  be  able
     9  to  access  fingerprint  results, whether the employee first completed a
    10  form provided to them by the construction  contractors,  or  received  a
    11  form previously from a school district, charter school or board of coop-
    12  erative  educational  services. Nothing in this section shall require an
    13  employee who has already submitted their fingerprints to the commission-
    14  er to have to submit them again, so long as they were not destroyed.
    15    (b) Conditional clearance. When the commissioner  receives  a  request
    16  for  a  determination  on  the  conditional  clearance  of a prospective
    17  employee, the commissioner, after receipt of a criminal  history  record
    18  from  the  division  of criminal justice services, shall promptly notify
    19  the prospective employee and the appropriate  school  district,  charter
    20  school, board of cooperative educational services, construction contrac-
    21  tors  or  nonpublic  or  private elementary or secondary school that the
    22  prospective employee to  which  such  report  relates  is  conditionally
    23  cleared  for employment or work on a construction or maintenance project
    24  based upon his or her criminal history or that more time  is  needed  to
    25  make the determination. If the commissioner determines that more time is
    26  needed,  the  notification  shall  include  a good faith estimate of the
    27  amount of additional time needed. Such notification shall be made within
    28  fifteen business days after the commissioner  receives  the  prospective
    29  employee's fingerprints. All determinations to grant or deny conditional
    30  clearance  for  employment pursuant to this paragraph shall be performed
    31  in accordance with subdivision sixteen of section two hundred ninety-six
    32  of the executive law and article twenty-three-A of the correction law.
    33    § 9. Subdivision 3 of section 3035 of the education law, as amended by
    34  section 8 of chapter 630 of the laws of 2006,  is  amended  to  read  as
    35  follows:
    36    3.  After  receipt  of  a criminal history record from the division of
    37  criminal justice services and the federal bureau  of  investigation  the
    38  commissioner  shall  promptly  notify  the  appropriate school district,
    39  charter school, board of cooperative educational services,  construction
    40  contractor, or nonpublic  or  private  elementary  or  secondary  school
    41  whether the prospective employee to which such report relates is cleared
    42  for  employment  or  for  access  to  a proposed project site to perform
    43  construction and/or maintenance work based  upon  his  or  her  criminal
    44  history. All determinations to grant or deny clearance for employment or
    45  ability to work on a proposed project pursuant to this subdivision shall
    46  be  performed  in  accordance  with  subdivision  sixteen of section two
    47  hundred ninety-six of the executive law and  article  twenty-three-A  of
    48  the correction law.  When the commissioner denies a prospective employee
    49  clearance  for  employment,  such prospective employee shall be afforded
    50  notice and the right to be heard and offer proof in opposition  to  such
    51  determination in accordance with the regulations of the commissioner.
    52    §  10.  Section  1125  of the education law is amended by adding a new
    53  subdivision 11 to read as follows:
    54    11. "Construction contractor" shall  mean  any  individual  or  entity
    55  seeking  permission  either  through  a  bid  or  otherwise  to  perform
    56  construction and/or maintenance work on facilities occupied at any point

        S. 4862--A                          5
     1  by students of the school district, charter school, board of cooperative
     2  educational services, or nonpublic school.
     3    §  11.  Subdivision  3 of section 424-a of the social services law, as
     4  amended by section 14-a of part H of chapter 56 of the laws of 2019,  is
     5  amended to read as follows:
     6    3.  For  purposes  of  this  section, the term "provider" or "provider
     7  agency" shall mean: an authorized agency; the  office  of  children  and
     8  family  services;  juvenile  detention facilities subject to the certif-
     9  ication of the office of children and family services;  programs  estab-
    10  lished pursuant to article nineteen-H of the executive law; non-residen-
    11  tial  or  residential programs or facilities licensed or operated by the
    12  office of mental health or the  office  for  people  with  developmental
    13  disabilities  except  family  care  homes; including head start programs
    14  which are funded pursuant to title V of the federal economic opportunity
    15  act of nineteen  hundred  sixty-four,  as  amended;  early  intervention
    16  service established pursuant to section twenty-five hundred forty of the
    17  public  health  law;  preschool services established pursuant to section
    18  forty-four hundred ten of the education law; construction contractors as
    19  defined in subdivision eleven of section eleven hundred  twenty-five  of
    20  the education law; special act school districts as enumerated in chapter
    21  five  hundred  sixty-six of the laws of nineteen hundred sixty-seven, as
    22  amended; programs and facilities licensed by the  office  of  alcoholism
    23  and  substance  abuse  services; residential schools which are operated,
    24  supervised or approved by the education department; health homes, or any
    25  subcontractor of such health homes, who contracts with or is approved or
    26  otherwise authorized by the department of health to provide health  home
    27  services  to  all  those  enrolled pursuant to a diagnosis of a develop-
    28  mental disability as defined in subdivision twenty-two of  section  1.03
    29  of  the  mental hygiene law and enrollees who are under twenty-one years
    30  of age under section three hundred sixty-five-l of this chapter, or  any
    31  entity  that provides home and community based services to enrollees who
    32  are under twenty-one years of age under a demonstration program pursuant
    33  to section eleven hundred fifteen of the federal  social  security  act;
    34  publicly-funded emergency shelters for families with children, provided,
    35  however,  for  purposes  of  this section, when the provider or provider
    36  agency is a publicly-funded emergency shelter for  families  with  chil-
    37  dren,  then all references in this section to the "potential for regular
    38  and substantial contact with individuals who are cared for by the  agen-
    39  cy"  shall  mean  the potential for regular and substantial contact with
    40  children who are served by such  shelter;  and  any  other  facility  or
    41  provider  agency, as defined in subdivision four of section four hundred
    42  eighty-eight of this chapter, in regard to the employment of  staff,  or
    43  use  of  providers  of  goods  and services and staff of such providers,
    44  consultants, interns and volunteers.
    45    § 12. Paragraph (a) of subdivision 2 of section 390-a  of  the  social
    46  services  law, as amended by chapter 416 of the laws of 2000, is amended
    47  to read as follows:
    48    (a) review and evaluate the backgrounds of and information supplied by
    49  any person applying to be a child day care center  or  school-age  child
    50  care program employee or volunteer or group family day care assistant, a
    51  provider of family day care or group family day care, or a director of a
    52  child  day  care  center, head start day care center or school-age child
    53  care program or a construction contractor, or  a  construction  contrac-
    54  tor's employee who services any of these entities. Such procedures shall
    55  include  but  not  be  limited  to  the following requirements: that the
    56  applicant set forth his or her employment history, provide personal  and

        S. 4862--A                          6
     1  employment  references;  submit  such  information  as  is  required for
     2  screening with  the  statewide  central  register  of  child  abuse  and
     3  maltreatment  in  accordance with the provisions of section four hundred
     4  twenty-four-a  of this article; sign a sworn statement indicating wheth-
     5  er, to the best of his or  her  knowledge,  he  or  she  has  ever  been
     6  convicted  of  a  crime  in  this  state  or any other jurisdiction; and
     7  provide his or her fingerprints for submission to the division of crimi-
     8  nal justice services in accordance with the provisions of section  three
     9  hundred  ninety-b of this title.  Notwithstanding the provisions of this
    10  paragraph, where a program has people working on their premises  through
    11  a  construction  contractor  as defined in subdivision eleven of section
    12  eleven hundred twenty-five of the education law  and  such  construction
    13  contractor  has properly performed checks on its employees as a provider
    14  or provider agency under section  four  hundred  twenty-four-a  of  this
    15  chapter,  then such program does not need to run the check itself on the
    16  construction contractor employees working on their site;
    17    § 13. This act shall take effect immediately; provided  however  that:
    18  (a)  the amendments to section 1125 of the education law made by section
    19  one of this act shall take effect on the  same  date  and  in  the  same
    20  manner  as chapter 363 of the laws of 2018, takes effect; (b) the amend-
    21  ments to paragraph (a-2) of subdivision 3 of section 2854 of the  educa-
    22  tion law made by section two of this act shall not affect the expiration
    23  of such paragraph and shall expire and be deemed repealed therewith; (c)
    24  the  amendments to paragraph (d) of subdivision 30 of section 305 of the
    25  education law made by section five of this  act  shall  not  affect  the
    26  repeal of such paragraph and shall be deemed repealed therewith; and (d)
    27  the  amendments  to  subdivision  3 of section 3035 of the education law
    28  made by section eight of this act shall be subject to the expiration and
    29  reversion of such subdivision, pursuant to section 12 of chapter 147  of
    30  the  laws  of  2001,  as  amended, when upon such date the provisions of
    31  section nine of this act shall take effect.
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