Requires fingerprinting of school employees of public and publicly-funded special education schools and of prospective employees in the office of cultural education; appropriation

Summary of the provisions of the bill

Section 1 of the bill would amend paragraphs a and b of subdivision 30 of section 305 of the Education Law to make the provisions that require the Commissioner of Education to promulgate regulations for fingerprinting prospective employees and develop forms relating to fingerprinting and notices to employees applicable to prospective employees of special education schools. These regulations would not apply to special education schools located within the City of New York, which fingerprints employees of special education schools that contract with the New York City School District.

Section 2 of the bill would amend subparagraph (vii) of paragraph c of subdivision 30 of section 305 of the Education Law to make the provision requiring that an employee's fingerprinting records be destroyed 12 months after termination if the individual is not employed by another public school also apply to employees of special education schools and re-employment in such schools.

Section 3 of the bill would amend paragraph d of subdivision 30 of section 305 to make the provision that requires the Commissioner to develop forms to be completed by prospective employees when conditional appointments or emergency conditional appointments are made also apply to special education schools.

Section 4 of the bill would add a new paragraph (f) to subdivision 30 of section 305 of the Education Law to define a "special education school" as a state school operated pursuant to Article 87 or 88 of the Education Law (i.e., the State School for the Blind at Batavia and the State School for the Deaf at Rome); a state-supported school operated pursuant to Article 85 of the Education Law (i.e., a "4201 school"); an approved private non-residential or residential school for students with disabilities located within the state (i.e., a "Chapter 853 school"); or an approved provider of preschool special education services or programs (i.e., "4410 providers"). This term would not include a school or facility operated or licensed by another state agency unless the school or facility is also an approved private school for students with disabilities or an approved preschool provider.

Section 5 of the bill would amend subdivisions 3, 4, 5 and 6 of section 1125 of the Education Law to include non-residential special education schools or programs within the definitions of "employee", "volunteer" and "administrator" for the purposes of Article 23-B of the Education Law relating to reporting, investigation or identification of child abuse by persons in an educational setting. The bill would define "non-residential special education school or program" as a non-residential state-supported school operated pursuant to article 85 and an approved non-residential private school or preschool for the education of students with disabilities. The bill also would amend the definition of "educational setting" to include non-residential special education schools or programs, and exclude residential schools subject to mandatory reporting to the Statewide Central Register of Child Abuse and Maltreatment pursuant to Title 6 of the Social Services Law.

Section 6 of the bill would amend subdivision 2 of section 1126 of the Education Law to require that reports of child abuse by an employee or volunteer of a non-residential special education school be forwarded to the administrator of the school. The administrator of a nonresidential special education school or program would be responsible for compliance with the provisions of Article 23-B.

Section 7 of the bill would amend section 1128-a of the Education Law to clarify that a school administrator and a superintendent of schools would be required to forward a report prepared pursuant to section 1126 of the Education Law to law enforcement and the Commissioner of Education if the employee or volunteer alleged to have committed an act of child abuse holds a certification or license issued by the department.

Section 8 would amend section 1133 of the Education Law to provide immunity to any administrator who reasonably and in good faith reports to law enforcement officials information regarding allegations of child abuse.

Section 9 of the bill would amend subdivision 1 of section 3035 of the Education Law to make the provision that requires the Commissioner to submit fingerprints to the Division of Criminal Justice Services (DCJS) with required processing fees and requires DCJS to submit the fingerprints to the Federal Bureau of Investigation (FBI) for a criminal records check also applicable to a special education school pursuant to Title 6 of the Education Law, except a special education school located within the City of New York.

Section 10 of the bill would amend subdivision 3 of section 3035 of the Education Law to make the existing procedures for conditional clearances and emergency conditional clearances apply to special education schools, and would apply the due process procedures established by section 50 of the Civil Service Law to prospective employees of state schools under Article 87 and 88. The bill also would amend subdivision 3-a of section 3035 to authorize the City of New York and the Commissioner to share criminal history record information on employees of special education schools, and authorize the Division of Criminal Justice Services to provide subsequent criminal history to the Commissioner for employees of special education schools located outside New York City and to the City of New York for special education schools that contract with the New York City School District.

Section 11 of the bill would amend paragraph i of subdivision a of section 4212 of the Education Law to require that applicants for employment by 4201 schools be fingerprinted in accordance with subdivision (d) of such section.

Section 12 of the bill would add a new subdivision (d) to section 4212 of the Education Law to require fingerprinting of all prospective employees of 4201 schools unless they have received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 599-cc or 1209-d of the Vehicle and Traffic Law (school bus drivers and attendants) or by the City of New York pursuant to local law The new subdivision also would authorize the Commissioner to provide subsequent criminal history notifications to the schools. The new subdivision would authorize conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39).

Section 13 of the bill would amend paragraph i of subdivision a of section 4314 of the Education Law to require that applicants for employment by the State School for the Blind at Batavia be fingerprinted in accordance with subdivision (d) of such section.

Section 14 of the bill would add a new subdivision (d) to section 4314 of the Education Law to require fingerprinting of all prospective employees of the State School for the Blind at Batavia unless they have received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 599-cc or l209-d of the Vehicle and Traffic Law (school bus drivers and attendants) or by the City of New York pursuant to local law. The new subdivision also would authorize conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39).

Section 15 of the bill would amend paragraph i of subdivision a of section 4358 of the Education Law to require that applicants for employment by the State School for the Deaf at Rome be fingerprinted in accordance with subdivision (d) of such section.

Section 16 of the bill would add a new subdivision (d) to section 4358 of the Education Law to require fingerprinting of all prospective employees of the State School for the Deaf at Rome unless ~hey have received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 599-cc or 1209-d of the Vehicle and Traffic Law. (school bus drivers and attendants) or by the City of New York pursuant to local law. The new subdivision also would authorize conditional appointments and emergency conditional appointments of prospective employees of this school to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39).

Section 17 of the bill would amend paragraph a of subdivision 11 of section 4403 of the Education Law to require that applicants for employment by Chapter 853 schools be fingerprinted in accordance with subdivision 23 of such section.

Section 18 of the bill would add a new subdivision 23 to section 4403 of the Education Law to require fingerprinting of all prospective employees of Chapter 853 schools unless they have received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 599-cc or 1209-d of the Vehicle and Traffic Law (school bus drivers and attendants) or by the City of New York pursuant to local law. The new subdivision also would authorize the Commissioner to provide subsequent criminal history notifications to the schools. The new subdivision would authorize conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39). The new subdivision also would clarify that it does not apply to an approved July and August program under Education Law section 4408 that is operated by a school district or BOCES.

Section 19 of the bill would add a new subdivision 9-e to section 4410 of the Education Law to require fingerprinting of all prospective employees of 4410 providers unless they have received clearance for employment pursuant to sections 3035 or 3004-b of the Education Law (i.e., through a public school or teacher certification) or section 599-cc or 1209-d of the Vehicle and Traffic Law (school bus drivers and attendants), or a valid clearance issued by the City of New York pursuant to local law. The new subdivision also would clarify that individual related service providers are responsible for submitting their own fingerprints prior to their inclusion on a list of related service providers maintained by the municipality or board of education pursuant to subdivision (9)(c) of section 4410). The new subdivision would authorize the Commissioner to provide subsequent criminal history notifications for its employees to the approved providers or to the City School District of the City of New York. The new subdivision also would authorize conditional appointments and emergency conditional appointments of prospective employees of such schools to the same extent and under the same conditions as a board of education of a union free school district pursuant to Education Law § 1709(39). The new subdivision would clarify that it does not apply to an approved July and August program under Education Law section 4408 that is operated by a school district or BOCES. Finally, the new subdivision would authorize the Commissioner to provide a copy of an employee's clearance for employment or a denial of clearance to each municipality that employs or has such an individual on a list of related service providers.

Section 20 would amend subdivision 3 of section 3035 of the Education Law, as such subdivision existed prior to its amendment by Chapter 147 of the Laws of 2001, to ensure that the expiration of the amendments made by Chapter 147 will not affect the amendment to subdivision 3 that is needed to provide for clearances by special education schools. This bill section would take effect only if the provisions of Chapter 147 expire and are deemed repealed.

Section 21 of the bill would add a new §276-a to the Education Law to require criminal history records checks for prospective employees of the State Education Department, the University of the State of New York and the Archives Partnership Trust who are hired, assigned or transferred to work in the Education Department's Office of Cultural Education or a facility housing such office on or after the effective date of this act, as well as for employees of contracted service providers and volunteers who provide services to the Office of Cultural Education and whose services involve unsupervised direct contact with children or unsupervised access to collections. The bill would provide for the submission of fingerprints to the Division of Criminal Justice Services (DCJS) with the processing fees required by Executive Law §837(8-a) and the fees imposed by the FBI. The bill would provide for determinations of whether an individual is cleared to supply services in the Office of Cultural Education based on his or her criminal history. Such determinations must be made in accordance with Executive Law §296(16) and Article 23-A of the Correction Law. Upon denial of clearance, the prospective employee or volunteer would have to be provide d notice and the right to be heard and submit proof in opposition in accordance with regulations of the Commissioner, consistent with the due process procedures established by §50 of the Civil Service Law. Upon a denial of clearance or refusal to be fingerprinted, a prospective employee would be disqualified for appointment, transfer or assignment to provide services in the Office of Cultural Education and a volunteer would be prohibited from providing services.

Section 22 would appropriate $250,000 to the State Education Department for its expenses to implement this bill in the first year.

Section 23 would be the effective date.

Statement in support of the bill

Over the past decade, several pieces of legislation have been enacted to require prospective employees in various settings to be fingerprinted for the purpose of conducting criminal history record checks. In each case, the primary purpose of such legislation is either to protect children or other vulnerable populations from exposure to individuals whose criminal records indicate that they may pose a threat to the health and safety of those in their custody or care or with whom they have direct contact, or to protect valuable resources against the risk of theft. Currently, however, there are gaps in the coverage of these criminal history record check requirements and the protections they provide. This bill would extend the criminal history record check requirements to cover two areas in which there is a gap in such protections-special education schools and the State Education Department's Office of Cultural Education (including the State Museum, State Library and State Archives).

A. SPECIAL EDUCATION SCHOOLS

Fingerprinting requirements were imposed on prospective employees of school districts, BOCES and charter schools by Chapter 180 of the Laws of 2000 as part of the Project SAVE initiative. This bill would extend the requirement of a criminal history record check for prospective employees of such public schools to prospective employees of the various types of publicly-funded schools that serve students with disabilities placed by school district committees on special education and committees on preschool special education. The City of New York fingerprints employees of special education schools with which it contracts, but there is no fingerprinting requirement for special education schools located outside the City of New York that do not contract with the New York City School District. Now that school districts, BOCES and charter schools are required to fingerprint applicants for employment, and as more states impose fingerprinting requirements for school employees, leaving special education students unprotected creates a serious risk that individuals convicted of crimes such as sex offenses involving children that would disqualify them from serving in public schools will seek to be employed in schools that serve these students.

Students with disabilities are perhaps the most vulnerable student population of all, and exposing them to the risk of abuse by individuals with criminal histories involving physical or sexual abuse of children is unconscionable.

The existing protections provided to students with disabilities are not adequate. Education Law §§ 4212, 4314, 4358 and 4403(11) and Title 6 of the Social Services Law provide protections against abuse and maltreatment of students with disabilities in residential care, including requirements that applicants for employment provide sworn statements of their criminal history and give special education schools access to the Statewide Central Register of Child Abuse and Maltreatment for the purpose of screening them. However, the Statewide Central Register lists only prior founded reports of child abuse or maltreatment against an individual. The legal definition of child abuse and maltreatment is too narrow to cover many criminal offenses that ought to be disqualifying, such as sexual offenses involving children for whom the individual is not the parent or otherwise responsible under the Family Court Act, or rape or other serious offenses involving adults.

In addition, there is no adequate protection for students with disabilities in non-residential schools. The provisions of Chapter 630 of the Laws of 2006 gave non-public elementary and secondary schools access to fingerprinting on a voluntary basis, but it is not clear whether Chapter 630 was intended to apply to residential and non-residential special education schools. Even if it is applicable, a voluntary provision would not provide adequate protection for students with disabilities.

In recognition of the costs and administrative burdens from imposing fingerprinting requirements, this bill would follow the same measured approach that was adopted for Project SAVE. Fingerprinting would be imposed only prospectively; it would apply to new applicants for employment, not to existing employees. Instead of involving school districts or BOCES in fingerprinting employees of other entities, the bill would make the special education schools responsible for ensuring that their prospective employees are fingerprinted and granted criminal clearance by the Commissioner of Education. Duplication of fingerprinting requirements would be avoided to the extent practicable. However, there are circumstances under which individuals who are fingerprinted and subjected to a criminal history record check under other laws would not be exempted by this bill because such other laws do not authorize an FBI criminal history record check. For example, this bill would not provide an exemption for individuals employed by approved providers under section 4410 of the Education Law who have been fingerprinted under the provisions of § 390-b of the Social Services Law applicable to day care workers, because there is no provision for an FBI criminal history record check under that statute. Once an individual would be given criminal clearance after having been fingerprinted by a school district pursuant to Education Law § 3035 or after they would have applied for a teaching certificate or would be hired as a school bus driver or school bus attendant, they would not need to be refingerprinted. Special education schools located within the City of New York and individuals who are employed by special education schools located outside of the City of New York who receive clearance by the City of New York would also be exempted. With these exceptions, the bill would track the existing requirements for criminal history record checks of prospective school district employees, providing special education school prospective employees the same due process protections as school district prospective employees.

Clarification of the provisions of Article 23-B of the Education Law relating to child abuse in an educational setting as applied to special education schools is also needed. The definition of an "educational setting" in section 1125(5) includes not only a school building or school bus, but also "any other location where direct contact between an employee or volunteer and a child has allegedly occurred." Because the definition of an "employee" in section 1125(3) includes an employee of a contracted service provider where a school district contracts with a special education school to provide services to a student, the literal language of Article 23-B extends to special education schools as contracted service providers. Article 23-B, however, requires superintendents of schools and school district administrators to investigate allegations of child abuse and report them to law enforcement. In the case of a special education school, the superintendent of schools of the school district will not be in the best position to investigate an incident as he or she will not have ready access to the information needed to make a judgment that there is reasonable suspicion that an act of child abuse involving an employee of the special education school has occurred. The special education school may be located many miles from the school district, and the superintendent will have no familiarity with the employees of the special education school and no ability to take swift action against an employee if an allegation is believed to be founded. In the case of a residential special education school, where child abuse or neglect of a child in residential care is already reportable to the Statewide Central Register of Child Abuse and Maltreatment under the provisions of Title 6 of the Social Services Law, there is a severe risk that an independent investigation by a school district would interfere with and potentially compromise an investigation of alleged abuse or neglect by the child protective services unit in the local social services district. Title 6 of the Social Services Law requires reporting of founded incidents to law enforcement, which makes application of the protections of Article 23-B to a residential special education school unnecessary.

This bill would address these issues by explicitly exempting residential special education schools and programs from the requirements of Article 23-B of the Education Law, while providing greater protection for children by explicitly making the provisions of Article 23-B applicable to non-residential special education schools and programs. Incidents occurring in nonresidential special education schools and programs are not subject to reporting to the Statewide Central Register of Child Abuse and Maltreatment under the provisions of Title 6 of the Social Services Law. Unless Article 23-B applies, there would be a gap in the protection of students with disabilities against child abuse. This bill would ensure that there would be no gap in the protection of these children, while assigning responsibility for compliance with Article 23-B to the school administrator of the special education school, rather than the superintendent of schools of the contracting school district. The school administrator of the non-residential special education school, defined as the chief school officer, is in the best position to quickly investigate and take appropriate action to protect the student when an incident of child abuse occurs. The administrator should be held responsible for investigating and reporting incidents to law enforcement in precisely the same manner as a superintendent of schools is for incidents in a school district school. A school administrator of a non-residential special education school who fails to investigate or report an incident of child abuse to law enforcement ought to be subject to the same criminal sanctions and risk of loss of certification that a superintendent of schools would face in the same circumstance. This bill would protect students with disabilities by placing responsibility for investigating and intervening in cases of child abuse in a non-residential special education school precisely where it belongs-with the chief school officer.

B. THE OFFICE OF CULTURAL EDUCATION

The proposed bill would also provide the State Education Department's Office of Cultural Education the authority to perform criminal background checks on all employees hired after the effective date. The bill parallels the provisions of the Education Law that govern criminal history records checks for prospective employees of school districts.

A large number of children participate in State Museum programs daily and many more visit State Museum exhibits, the State Library's public floor and the State Archives. Staff, volunteers, and interns, as well as various contractors and vendors, can potentially come in contact with the children and should, therefore, meet the same security requirements, i.e., criminal background check and fingerprinting as required of school employees with a similar possibility of contact.

The Office of Cultural Education, through the State Archives, State Library and State Museum, is responsible for vast collections of importance to the State of New York. These collections have great historical significance, cultural and scientific importance and, in many cases, financial value. It is appropriate that staff and others with the potential to access these state treasures undergo a security check to reduce the risk of theft or damage to these collections.

The exception to these background checks would be employees, such as security guards, who have already undergone a background check prior to employment or who have previously passed a background check while working elsewhere in the State Education Department.

Budgetary implications of the bill

This bill would result in an annual cost to the state of $250,000 for staff to handle the additional workload of processing criminal history records checks . Applicants for positions at special education schools and with the Office of Cultural Education would be required to pay a processing fee for a criminal history record check by DCJS and the FBI, currently $94.25. Some administrative costs would be incurred by affected special education schools but the amounts are not known. Special education schools located within the City of New York would be exempt. A substantial proportion of the employees of special education schools located outside the City of New York are already subject to fingerprinting through the City of New York, and would also be exempt.

Prior legislative history

In the 2008 and 2007 legislative session the special education school fingerprinting language was introduced as A.8681 and S.5774. A.8681 was referred to the Assembly Education Committee and no further action was taken. S.5774 passed the Senate, was referred to the Assembly Education Committee and no further action was taken.

In 2006, a similar bill relating to special education schools was introduced as S.5432, passed the Senate and was referred to the Assembly Education Committee and no further action was taken. Another similar bill, S.4018, was introduced in the Senate, and referred to the Senate Finance Committee. A similar bill, A.11908, was introduced in the Assembly, referred to the Assembly Education Committee and no further action was taken. Similar bills were also introduced as S.4985-A for 2003-2004 and A.10971 for 2004.

In the 2008 and 2007 legislative sessions, the cultural education language was introduced in the Assembly as A.8683 and Senate as S.4331, was referred to the respective Education Committees, and no further action was taken.

Effective date

This act would take effect on the 180th day after it becomes a law. The appropriation in section 22 of the act would take effect immediately. The Commissioner's authority to promulgate any regulations needed to implement the act on the effective date would take effect immediately. The provisions of sections 1 through 4, 9 through 20 and 22 of this act relating to fingerprinting would apply to prospective employees of special education schools who are appointed on or after the effective date, to individual providers of preschool related services who are placed on lists maintained by the municipality pursuant to subdivision 9 of section 4410 of the Education Law on and after the effective date. The provisions of section 21 of this act relating to fingerprinting would apply to prospective employees and volunteers working in the office of cultural education on and after the effective date. The provisions of section 6 of this act would expire and be deemed repealed in accordance with section 12 of Chapter 147 of the Laws of 2001, whereupon the provisions of section 16 of this act would take effect.