(e) After reviewing a criminal history record of an individual who is subject to a criminal history record check pursuant to this section, the Office and the licensee or registrant shall take the following actions:

(1) Applicant to be a licensee or registrant of a child care program.

(i) where the criminal history record of an applicant to be a licensee or registrant of a child care facility or program reveals a conviction for a crime set forth in subparagraph (i) of paragraph (a) of subdivision (3) of section 390-b of the Social Services Law, the Office shall deny the application unless the Office determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of the children in the facility or program;

(ii) where the criminal history record of an applicant to be a licensee or registrant of a child care facility or program reveals a conviction for a crime other than one set forth in subparagraph (i) of paragraph (a) of subdivision (3) of section 390-b of the Social Services Law, the Office may, consistent with Article 23-A of the Correction Law, deny the application; and

(iii) where the criminal history record of an applicant to be a licensee or registrant of a child care facility or program reveals a charge for any crime, the Office shall hold the application in abeyance until the charge is finally resolved;

(2) Applicant to be an Employee or Caregiver, Volunteer.

(i) where the criminal history record of an applicant to be an employee, caregiver or volunteer for any child care facility or program reveals a conviction for a crime set forth in subparagraph (i) of paragraph (a) of subdivision (3) of section 390-b of the Social Services Law, the Office shall direct the licensee or registrant to deny the application unless the Office determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of the children in the facility or program;

(ii) where the criminal history record of an applicant to be an employee, caregiver or volunteer for any child care facility or program reveals a conviction for a crime other than one set forth in subparagraph (i) of paragraph (a) of subdivision (3) of section 390-b of the Social Services Law, the Office may, consistent with Article 23-A of the Correction Law, direct the licensee or registrant to deny the application; and

(iii) where the criminal history record of an applicant to be an employee, caregiver or volunteer for any child care facility or program reveals a charge for any crime, the Office shall hold the application in abeyance until the charge is finally resolved;

(3) Adult household members of applicants for licensure of registration of family and group family day care homes.

(i) where the criminal history record of any person age 18 or over residing in the family or group family day care home reveals a conviction for a crime set forth in subparagraph (i) of paragraph (a) of subdivision (3) of section 390-b of the Social Services Law, the Office shall deny the application unless the Office determines, in its discretion, that approval of the application will not in any way jeopardize the health, safety or welfare of the children in the home or program. If the Office so determines, the Office shall direct the licensee or registrant that the person not be permitted to have any contact with children receiving day care or impose any other reasonable condition necessary to protect the health, safety or welfare of the children in care;

(ii) where the criminal history record of any person age 18 or over residing in a family or group family day care home reveals a conviction for a crime other than one set forth in subparagraph (i) of paragraph (a) of subdivision (3) of Section 390-b of the Social Services Law, the Office may, consistent with Article 23-A of the Correction Law, deny the application or direct the licensee or registrant that the person not be permitted to have any contact with children receiving day care or impose any other reasonable condition necessary to protect the health, safety or welfare of the children in care; and

(iii) where the criminal history record of any person age 18 or over residing in the family or group family day care home reveals a charge for any crime, the Office shall hold the application in abeyance until the charge is finally resolved.

(4) Current Licensee or Registrants.

(i) where the criminal history record of a current licensee or registrant of a child care facility or program reveals a conviction for a crime set forth in subparagraph (i) of paragraph (a) of subdivision (3) of section 390-b of the Social Services Law, the Office shall conduct a safety assessment of the program, and take all appropriate steps to protect the health and safety of the children in the program. The Office shall deny, limit, suspend, revoke, reject or terminate the license or registration based on such a conviction unless the Office determines, in its discretion, that the continued operation of the center, home or program will not in any way jeopardize the health, safety or welfare of the children in care;

(ii) where the criminal history record of a current licensee or registrant of a child care facility or program reveals a conviction for a crime other than one set forth in subparagraph (i) of paragraph (a) of subdivision (3) of section 390-b of the Social Services Law, the Office shall conduct a safety assessment of the program and take all appropriate steps to protect the health and safety of the children in the program. The Office may deny, limit, suspend, revoke, reject or terminate the license or registration based on such a conviction consistent with Article 23-A of the Correction Law; and

(iii) where the criminal history record of a current licensee or registrant of a child care facility or program reveals a charge for any crime, the Office shall conduct a safety assessment of the program and take all appropriate steps to protect the health and safety of the children in the program. The Office may suspend the license or registration based on such a charge where necessary to protect the health and safety of children in the facility or program. The licensee or registrant must cooperate with the Office and comply with the direction or directions of the Office to protect the health and safety of the children in care.

(5) Current Employees, Caregivers, Volunteers and Adult household members.

(i) where the criminal history record of a current employee, caregiver, or volunteer for any child care facility or program, or any person age 18 or over residing in a family or group family day care home, reveals a conviction for a crime set forth in subparagraph (i) of paragraph (a) of subdivision (3) of Section 390-b of the Social Services Law, the Office shall conduct a safety assessment of the program and take all appropriate steps to protect the health and safety of the children in the program. The Office shall direct the licensee or registrant to terminate the employee caregiver, or volunteer based on such a conviction, and the licensee or registrant shall comply with such direction, unless the Office determines, in its discretion, that the continued presence of the employee, caregiver, or volunteer in the center or program will not in any way jeopardize the health, safety or welfare of the children in the facility or program. If the Office determines, in its discretion, that the continued presence of a person age 18 or over residing in a family or group family day care home will not in any way jeopardize the health, safety or welfare of the children in the home, the Office either shall direct the licensee or registrant not to permit the person to have any contact with children receiving child care, or impose any other reasonable condition necessary to protect the health, safety or welfare of the children in care;

(ii) where the criminal history record of a current employee, caregiver or volunteer for any child care facility or program, or any person age 18 or over residing in a family or group family day care home, reveals a conviction for a crime other than one set forth in subparagraph (i) of paragraph (a) of subdivision (3) of section 390-b of the Social Services Law, the Office shall conduct a safety assessment of the program and take all appropriate steps to protect the health and safety of the children in the program. The Office may direct the licensee or registrant to terminate the employee, caregiver or volunteer based on such a conviction, and the licensee or registrant shall comply with such direction, consistent with Article 23-A of the Correction Law. The Office may direct the licensee or registrant that a person age 18 or over residing in a family or group family day care home not be permitted to have any contact with children receiving child care or impose any other reasonable condition necessary to protect the health, safety or welfare of children; and

(iii) where the criminal history record of a current employee, caregiver or volunteer for facility or program, or any person age 18 or over residing in a family or group family day care home, reveals a charge for any crime, the Office shall conduct a safety assessment of the program and take all appropriate steps to protect the health and safety of the children in the program. The licensee or registrant must cooperate with the Office, and comply with the direction or directions of the Office to protect the health and safety of the children in care.

The New York State Office of Children and Family Services (“Office”) would like to propose a consensus rule for adoption in accordance with Section 202 of the State Administrative Procedure Act. It is the Office’s determination that no person is likely to object to adopting the proposed rule on a consensus basis, because the proposed rule is to correct a technical error, and is otherwise non-controversial. If adopted, the proposed rule will result in correctly identifying a Social Services Law citation in the regulation found at 18 NYCRR § 413.4(e). Currently, there is a “3” missing in what should have been cited as Social Services Law § 390-b(3)(a)(i).

Section 201-a of the State Administrative Procedure Act requires a job impact statement to be filed if proposed regulations will have an adverse impact on jobs and employment opportunities in the State. The regulatory change being proposed by the New York State Office of Children and Family Services (“Office”) will result in correctly identifying a Social Services Law citation. In the current regulation found at 18 NYCRR § 413.4(e) a “3” is missing in what should have been cited as Social Services Law § 390-b(3)(a)(i). The Office is confident that implementing a regulatory change to correct this citation to the Social Services Law will not cause the loss of jobs in child care programs.