Requires fingerprinting of prospective employees of special education schools for purposes of a criminal background check

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

Section 3 of the bill amends 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 and emergency conditional appointments are made applicable to special education schools.

Section 4 of the bill adds 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 that is located within the state (i.e., a "Chapter 853 school"); or an approved provider of preschool special education services or programs that are located within the state (i.e., "4410 providers"); provided that such term shall not include a school or facility operated or licensed by another State agency unless such school or facility is also an approved private school for students with disabilities or an approved preschool provider.

Section 5 of the bill amends 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 and the Federal Bureau of Investigations (FBI) to submit the criminal history record to the commissioner in a timely manner, also applicable to fingerprints received from a special education school pursuant to Title 6 of the Education Law, except a special education school located within the City of New York. It also makes the definition of an "employee" that is contained in Education Law § 1125(3) apply to special education schools.

Section 6 of the bill amends 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. Section 6 also amends subdivision 3-a of section 3035 to authorize the sharing of criminal history record information on employees of special education schools between the City of New York and the commissioner to 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 7 of the bill amends 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 8 of the bill adds a new subdivision (d) to section 4212 of the Education Law to require the fingerprinting of all prospective employees of 4201 schools unless they have already 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 509-cc or 1229-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 authorizes the Commissioner to provide subsequent criminal history notifications to the schools. The new subdivision also authorizes 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 9 of the bill amends 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 10 of the bill adds a new subdivision (d) to section 4314 of the Education Law to require the fingerprinting of all prospective employees of the State School for the Blind at Batavia unless they have already 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 509-cc or 1229-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 authorizes 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 11 of the bill amends 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 12 of the bill adds a new subdivision (d) to section 4358 of the Education Law to require the fingerprinting of all prospective employees of the State School for the Deaf at Rome unless they have already 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 509-cc or 1229-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 authorizes 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 amends 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 21 of such section.

Section 14 of the bill adds a new subdivision 21 to section 4403 of the Education Law to require the fingerprinting of all prospective employees of Chapter 853 schools unless they have already 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 509-cc or 1229-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 authorizes the Commissioner to provide subsequent criminal history notifications to the schools. The new subdivision also authorizes 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 clarifies 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 15 of the bill adds a new subdivision 9-e to section 4410 of the Education Law to require the fingerprinting of all prospective employees of 4410 providers unless they have already 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 509-cc or 1229-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 clarifies that individual related service providers are responsible for submitting their own fingerprints prior to inclusion of a list maintained by the municipality or board pursuant to subdivision (9) (c) of section 4410. The new subdivision also authorizes the Commissioner to provide subsequent criminal history notifications to the approved providers or to the City School District of the City of New York for its employees. The new subdivision also authorizes 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 clarifies 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 authorizes the Commissioner to provide a copy of the employees' clearance for employment or a denial of clearance to each municipality that employs or has such individual on a list of related service providers.

Section 16 amends subdivision 3 of section 1125 of the Education Law to include persons receiving compensation in special education school districts in the definition of employee. Subdivision 5 of section 1125 of the Education Law is amended to special education schools and school districts in the definition of educational setting.

Section 17 amends subdivision 3 of section 3035 of the Education Law, as such subdivision existed prior to its amendment by Chapter 630 of the Laws of 2006, to assure 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 only takes effect if the provisions of Chapter 147 expire and are deemed repealed.

Section 18 is the effective date.

Justification

Fingerprinting requirements were imposed on prospective employees of school districts, BOCES and charter schools by Chapter 180 of the Laws of 2000. This bill would extend the protection currently provided by the criminal history record checks of prospective employees of such public schools to fully cover 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 currently fingerprints employees of special education schools with which it contracts, but there is no finger-printing requirement in place 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 and more states impose fingerprinting requirements for their school employees, leaving our special education schools unprotected creates a serious risk. Those convicted of certain crimes would be disqualified from serving in public schools, such as sex offenses involving children, and as such may seek out employment in schools not authorized to screen prospective employees through an FBI background check. 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 simply unconscionable, regardless of the costs and burdens of fully implementing a fingerprinting system. 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 access by special education schools to the Statewide Central Register of Child Abuse and Maltreatment for the purpose of screening applicants for employment. However, the Statewide Central Register will only pick up prior founded reports of child abuse or maltreatment against the individual, and 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. Moreover, there is no such protection for students with disabilities in non-residential schools, and no mechanism in either residential or non-residential schools for screening for criminal history on a national basis through the FBI. It is because of the need for statutory authorization for an FBI criminal history check that this bill includes the State Schools for the Deaf and Blind, where a State criminal history check has already been implemented. In recognition of the costs and administrative burdens that would result from immediate imposition of fingerprinting requirements, this bill follows the same measured approach that was adopted in Chapter 180 of 2000 establishing fingerprinting requirements. Fingerprinting is imposed only prospectively-it applies to new applicants for employment and does not apply to existing employees. Instead of involving school districts or BOCES in the fingerprinting of employees of other entities, the bill makes 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 is avoided to the extent practicable, though there are circumstances under which individuals who are fingerprinted and subjected to a criminal history record check under other laws are not exempted by this bill because such other laws do not authorize an FBI criminal history record check. For example, this bill does 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 is given criminal clearance after having been fingerprinted by a school district pursuant to Education Law § 3035 or after they apply for a teachers' certificate, they will not need to be re-fingerprinted. 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 those exceptions, the bill tracks the existing requirements for criminal history record checks of prospective school district employees, providing special education school prospective employees with the same due process protections as school district prospective employees. To assure the protection of children in special education schools, this bill establishes standardized practices and procedures for schools to follow which guarantee that allegations of child abuse by school employees and volunteers with direct access to school children are investigated by appropriate law enforcement authorities. This legislation is required to fill a major gap in State law affecting the protection of children from child abuse. Whereas, all officers and employees of the New York City School District and New York State Public School Districts are required to report incidences of misconduct, no comparable directive requiring an investigation of allegations by a law enforcement agency exists in these special education schools. As a result, employees have been permitted to "quietly" resign in the face of child abuse allegations, enabling them to again victimize children in another school setting. This bill will eliminate "quiet" resignations and provide an important measure of protection for children in these special education schools.

Legislative history

2005-06: Similar to S.5432 - Passed Senate 2007-08: Passed Senate

Effective date

This act would take effect on the 180th day after it shall have become a law, provided that the commissioner's authority to promulgate any regulations needed to implement the act on such effective date would take effect immediately and provided further that the provisions of this act shall apply to prospective employees of special education schools who are appointed on or after such effective date and 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 such 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 17 of this act would take effect.