424-A - Access to information contained in the statewide central register of child abuse and maltreatment.
§ 424-a. Access to information contained in the statewide central register of child abuse and maltreatment. 1. (a) A licensing agency shall inquire of the department and the department shall, subject to the provisions of paragraph (e) of this subdivision, inform such agency and the subject of the inquiry whether an applicant for a certificate, license or permit, assistants to group family day care providers, the director of a camp subject to the provisions of article thirteen-A, thirteen-B or thirteen-C of the public health law, and any person over the age of eighteen who resides in the home of a person who has applied to become an adoptive parent or a foster parent or to operate a family day care home or group family day care home has been or is currently the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment. (b) (i) A provider agency shall inquire of the department and the department shall, subject to the provisions of paragraph (e) of this subdivision, inform such agency and the subject of the inquiry whether any person who is actively being considered for employment and who will have the potential for regular and substantial contact with children who are cared for by the agency, is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment prior to permitting such person to have unsupervised contact with children. Such agency may inquire of the department and the department shall inform such agency and the subject of the inquiry whether any person who is currently employed and who has the potential for regular and substantial contact with children who are cared for by such agency is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment. A provider agency shall also inquire of the department and the department shall inform such agency and the subject of the inquiry whether any person who is employed by an individual, corporation, partnership or association which provides goods or services to such agency who has the potential for regular and substantial contact with children who are cared for by the agency, is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment prior to permitting such person to have unsupervised contact with children. Inquiries made to the department pursuant to this subparagraph by a provider agency on current employees shall be made no more often than once in any six month period. (ii) A provider agency may inquire of the department and the department shall, upon receipt of such inquiry and subject to the provisions of paragraph (e) of this subdivision, inform such agency and the subject of the inquiry whether any person who is to be hired as a consultant by such agency who has the potential for regular and substantial contact with children who are cared for by the agency is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment. (iii) A provider agency may inquire of the department and the department shall, upon receipt of such inquiry and subject to the provisions of paragraph (e) of this subdivision, inform such agency and the subject of the inquiry whether any person who has volunteered his or her services to such agency and who will have the potential for regular and substantial contact with children who are cared for by the agency, is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment. (iv) The department shall promulgate regulations which effectuate the provisions of this paragraph.(c) An authorized agency shall inquire of the department and the department shall inform such agency and the subject of the inquiry, whether any person who has applied to adopt a child is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment. (d) Any person who has applied to a licensing agency for a certificate, license or permit or who has applied to be an employee of a provider agency or who has applied to an authorized agency to adopt a child, or who may be hired as a consultant or used as a volunteer by a provider agency and any other person about whom an inquiry is made to the department pursuant to the provisions of this section shall be notified by such agency at the time of application or prior to the time that a person may be hired as a consultant or used as a volunteer that the agency will or may inquire of the department whether such person is the subject of an indicated child abuse and maltreatment report. All employees of a provider agency shall be notified by their employers that an inquiry may be made to the department pursuant to this section and no such inquiry shall be made regarding any employee until such notice has been made. (d-1) A law enforcement agency pursuant to section eight hundred thirty-seven-k of the executive law may inquire of the department and the department may inform such agency and the subject of the inquiry, whether any person who has applied for a symbol provided for in section eight hundred thirty-seven-k of the executive law or persons residing or regularly visiting said location are the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment. (e) (i) Subject to the provisions of subparagraph (ii) of this paragraph, the department shall inform the provider or licensing agency, or child care resource and referral programs pursuant to subdivision six of this section whether or not the person is the subject of an indicated child abuse and maltreatment report only if: (a) the time for the subject of the report to request an amendment of the record of the report pursuant to subdivision eight of section four hundred twenty-two has expired without any such request having been made; or (b) such request was made within such time and a fair hearing regarding the request has been finally determined by the commissioner and the record of the report has not been amended to unfound the report or delete the person as a subject of the report. (ii) If the subject of an indicated report of child abuse or maltreatment has not requested an amendment of the record of the report within the time specified in subdivision eight of section four hundred twenty-two of this title or if the subject had a fair hearing pursuant to such section prior to January first, nineteen hundred eighty-six and an inquiry is made to the department pursuant to this subdivision concerning the subject of the report, the department shall, as expeditiously as possible but within no more than ten working days of receipt of the inquiry, determine whether, in fact, the person about whom an inquiry is made is the subject of an indicated report. Upon making a determination that the person about whom the inquiry is made is the subject of an indicated report of child abuse and maltreatment, the department shall immediately send a written request to the child protective service or state agency which was responsible for investigating the allegations of abuse or maltreatment for all records, reports and other information maintained by the service or state agency on the subject. The service or state agency shall, as expeditiously as possible but within no more than twenty working days of receiving such request, forward all records, reports and other information it maintainson the indicated report to the department. The department shall, within fifteen working days of receiving such records, reports and other information from the child protective service or state agency, review all records, reports and other information in its possession concerning the subject and determine whether there is some credible evidence to find that the subject had committed the act or acts of child abuse or maltreatment giving rise to the indicated report. (iii) If it is determined, after affording such service or state agency a reasonable opportunity to present its views, that there is no credible evidence in the record to find that the subject committed such act or acts, the department shall amend the record to indicate that the report was unfounded and notify the inquiring party that the person about whom the inquiry is made is not the subject of an indicated report. If the subject of the report had a fair hearing pursuant to subdivision eight of section four hundred twenty-two of this title prior to January first, nineteen hundred eighty-six and the fair hearing had been finally determined by the commissioner and the record of the report had not been amended to unfound the report or delete the person as a subject of the report, then the department shall determine that there is some credible evidence to find that the subject had committed the act or acts of child abuse or maltreatment giving rise to the indicated report. (iv) If it is determined after a review by the office of children and family services of all records, reports and information in its possession concerning the subject of the report that there is a fair preponderance of the evidence to find that the subject committed the act or acts of abuse or neglect giving rise to the indicated report, the office of children and family services shall also determine whether such act or acts are relevant and reasonably related to issues concerning the employment of the subject by a provider agency or the subject being allowed to have regular and substantial contact with children cared for by a provider agency or the approval or disapproval of an application which has been submitted by the subject to a licensing agency, based on guidelines developed pursuant to subdivision five of this section. If it is determined that such act or acts are not relevant and related to such issues, the office of children and family services shall be precluded from informing the provider or licensing agency which made the inquiry to the office of children and family services pursuant to this section that the person about whom the inquiry is made is the subject of an indicated report of child abuse or maltreatment. (v) If it is determined after a review by the department of all records, reports and information in its possession concerning the subject of the report that there is some credible evidence to prove that the subject committed the act or acts of abuse or maltreatment giving rise to the indicated report and that such act or acts are relevant and reasonably related to issues concerning the employment of the subject by a provider agency or to the subject being allowed to have regular and substantial contact with children cared for by a provider agency or the approval or disapproval of an application which has been submitted by the subject to a licensing agency, the department shall inform the inquiring party that the person about whom the inquiry is made is the subject of an indicated report of child abuse and maltreatment; the department shall also notify the subject of the inquiry of his or her fair hearing rights granted pursuant to paragraph (c) of subdivision two of this section. (f) The department shall charge a fee of five dollars when, pursuant to regulations of the department, it conducts a search of its records within the statewide central register for child abuse or maltreatment in accordance with this section or regulations of the department todetermine whether an applicant for employment as specified in paragraph (b) of this subdivision is the subject of an indicated child abuse or maltreatment report, except that fees shall not be charged for requests for screenings related to applications for child day care providers or for employment with child day care providers including requests made pursuant to subdivision six of this section. Such fees shall be deposited in an account and shall be made available to the department for costs incurred in the implementation of this section. Procedures for payment of such fees shall be established by the regulations of the department. 2. (a) Upon notification by the department or by a child care resource and referral program in accordance with subdivision six of this section that any person who has applied to a licensing agency for a license, certificate or permit or who seeks to become an employee of a provider agency, or to accept a child for adoptive placement or who will be hired as a consultant or used as a volunteer by a provider agency, or that any other person about whom an inquiry is made to the department pursuant to the provisions of this section is the subject of an indicated report the licensing or provider agency shall determine on the basis of information it has available whether to approve such application or retain the employee or hire the consultant or use the volunteer or permit an employee of another person, corporation, partnership or association to have access to the children cared for by the provider agency, provided, however, that if such application is approved, or such employee is retained or consultant hired or volunteer used or person permitted to have access to the children cared for by such agency the licensing or provider agency shall maintain a written record, as part of the application file or employment record, of the specific reasons why such person was determined to be appropriate to receive a foster care or adoption placement or to provide day care services, to be the director of a camp subject to the provisions of article thirteen-A, thirteen-B or thirteen-C of the public health law, to be employed, to be retained as an employee, to be hired as a consultant, used as a volunteer or to have access to the children cared for by the agency. (b) (i) Upon denial of such application by a licensing or a provider agency or failure to hire the consultant or use the volunteer, or denial of access by a person to the children cared for by the agency, such agency shall furnish the applicant, prospective consultant, volunteer or person who is denied access to the children cared for by the agency with a written statement setting forth whether its denial, failure to hire or failure to use was based, in whole or in part, on such indicated report, and if so, its reasons for the denial or failure to hire or failure to use. (ii) Upon the termination of employment of an employee of a provider agency, who is the subject of an indicated report of child abuse or maltreatment on file with the statewide central register of child abuse and maltreatment, the agency shall furnish the employee with a written statement setting forth whether such termination was based, in whole or in part, on such indicated report and, if so, the reasons for the termination of employment. (c) If the reasons for such denial or termination or failure to hire a consultant or use a volunteer include the fact that the person is the subject of an indicated child abuse or maltreatment report, such person may request from the department within ninety days of receipt of notice of such denial, termination, failure to hire a consultant or use a volunteer and shall be granted a hearing in accordance with the procedures set forth in section twenty-two of this chapter relating to fair hearings. All hearings held pursuant to the provisions of thissubdivision shall be held within thirty days of a request for the hearing unless the hearing is adjourned for good cause shown. Any subsequent adjournment for good cause shown shall be granted only upon consent of the person who requested the hearing. The hearing decision shall be rendered not later than sixty days after the conclusion of the hearing. (d) At any such hearing, the sole question before the department shall be whether the applicant, employee, prospective consultant, volunteer, or person who was denied access to the children cared for by a provider agency has been shown by a fair preponderance of the evidence to have committed the act or acts of child abuse or maltreatment giving rise to the indicated report. In such hearing, the burden of proof on the issue of whether an act of child abuse or maltreatment was committed shall be upon the local child protective service or the state agency which investigated the report, as the case may be. The failure to sustain the burden of proof at a hearing held pursuant to this section shall not result in the expungement or unfounding of an indicated report but shall be noted on the report maintained by the state central register and shall preclude the department from notifying a party which subsequently makes an inquiry to the department pursuant to this section that the person about whom the inquiry is made is the subject of an indicated report. (e) Upon the failure, at the fair hearing held pursuant to this section, to prove by a fair preponderance of the evidence that the applicant committed the act or acts of child abuse or maltreatment giving rise to the indicated report, the department shall notify the provider or licensing agency which made the inquiry pursuant to this section that it should reconsider any decision to discharge an employee, or to deny the subject's application for employment, or to become an adoptive parent, or for a certificate, license or permit; or not to hire a consultant, use a volunteer, or allow access to children cared for by the agency. 3. For purposes of this chapter, the term "provider" or "provider agency" shall mean an authorized agency, the division for youth, juvenile detention facilities subject to the certification of such division, programs established pursuant to article nineteen-H of the executive law, non-residential or residential programs or facilities licensed or operated by the office of mental health or the office of mental retardation and developmental disabilities except family care homes, licensed child day care centers, including head start programs which are funded pursuant to title V of the federal economic opportunity act of nineteen hundred sixty-four, as amended, early intervention service established pursuant to section twenty-five hundred forty of the public health law, preschool services established pursuant to section forty-four hundred ten of the education law, school-age child care programs, special act school districts as enumerated in chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, as amended, programs and facilities licensed by the office of alcoholism and substance abuse services and residential schools which are operated, supervised or approved by the education department. 4. For purposes of this chapter, the term "licensing agency" shall mean an authorized agency which has received an application to become an adoptive parent or an authorized agency which has received an application for a certificate or license to receive, board or keep any child pursuant to the provisions of section three hundred seventy-six or three hundred seventy-seven of this article or an authorized agency which has received an application from a relative within the second degree or third degree of the parent of a child or a relative within thesecond degree or third degree of the step-parent of a child or children, or the child's legal guardian for approval to receive, board or keep such child or a state or local governmental agency which receives an application to provide child day care services in a child day care center, school-age child care program, family day care home or group family day care home pursuant to the provisions of section three hundred ninety of this article, or the department of health of the city of New York, when such department receives an application for a certificate of approval to provide family day care pursuant to the provisions of the health code of the city of New York, or the office of mental health or the office of mental retardation and developmental disabilities when such office receives an application for an operating certificate pursuant to the provisions of the mental hygiene law to operate a family care home which will serve children, or a state or local governmental official who receives an application for a permit to operate a camp which is subject to the provisions of article thirteen-A, thirteen-B or thirteen-C of the public health law or the division for youth which has received an application for a certificate to receive, board or keep any child at a foster family home pursuant to articles nineteen-G and nineteen-H of the executive law. 5. (a) The department, after consultation with the division for youth, the department of mental hygiene, the commission on quality of care for the mentally disabled and the state education department shall develop quidelines to be utilized by a provider agency, as defined by subdivision three of this section, and a licensing agency, as defined by subdivision four of this section, in evaluating persons about whom inquiries are made to the department pursuant to this section who are the subjects of indicated reports of child abuse and maltreatment, as defined by subdivision four of section four hundred twelve of this chapter. (b) The guidelines developed pursuant to subdivision one of this section shall not supercede similar guidelines developed by local governmental agencies prior to January first, nineteen hundred eighty-six. 6. A child care resource and referral program as defined in subdivision two of section four hundred ten-p of this article may inquire of the department and the department shall, upon receipt of such inquiry and subject to the provisions of paragraph (e) of subdivision one of this section, inform such program and the subject of such inquiry whether any person who has requested and agreed to be included in a list of substitute child day care caregivers for employment by registered or licensed day care providers maintained by such program in accordance with regulations promulgated by the department, is the subject of an indicated child abuse and maltreatment report on file with the statewide central register of child abuse and maltreatment. Inquiries made to the department by such programs pursuant to this subdivision shall be made no more often than once in any six month period and no less often than once in any twelve month period. Notwithstanding any provision of law to the contrary, a child care resource and referral program may redisclose such information only if the purpose of such redisclosure is to respond to a request for such information by a registered or licensed provider and only if after an individual included in the list of substitute child day care caregivers for employment by registered or licensed day care providers has consented to be referred for employment to such inquiring agency. Upon such referral, the provisions related to notice and fair hearing rights of this section shall otherwise apply. Inquiries made pursuant to this subdivision shall be in lieu of the inquiryrequirements set forth in paragraph (b) of subdivision one of this section.