Fingerprint Checks for School Hires

Section 1. Paragraphs (a) and (b) of subdivision 30 of section 305 of the education law, paragraph (a) and the opening paragraph and subparagraph (i) of paragraph (b) as amended by chapter 630 of the laws of 2006, paragraph (b) as added by chapter 180 of the laws of 2000, are amended to read as follows:

(a) The commissioner, in cooperation with the division of criminal justice services and in accordance with all applicable provisions of law, shall promulgate rules and regulations to require the fingerprint-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD10319-01-7

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ing of prospective employees, as defined in section eleven hundred twenty-five of this chapter, of school districts, charter schools and boards of cooperative educational services, and special education schools, and authorizing the fingerprinting of prospective employees of nonpublic and private elementary and secondary schools, and for the use of information derived from searches of the records of the division of criminal justice services and the federal bureau of investigation based on the use of such fingerprints. The commissioner shall also develop a form for use by school districts, charter schools, boards of cooperative educational services, special education schools, and nonpublic and private elementary and secondary schools in connection with the submission of fingerprints that contains the specific job title sought and any other information that may be relevant to consideration of the applicant. Prospective employees, including out-of-state applicants, shall be fingerprinted using electronic scanning technology in a manner prescribed by the commissioner in rules and regulations developed in cooperation with the division of criminal justice services, which shall include but not be limited to standards for the submission of electronic fingerprints, photographs and verification of the identity of prospective employees. Out-of-state prospective employees, who submit fingerprint cards and are not fingerprinted electronically pursuant to the requirements of this paragraph shall be fingerprinted electronically prior to employment within the state. The prospective employee shall sign an attestation, on a form prescribed by the commissioner, attesting that: at the time of fingerprinting, he or she presented two forms of proper identification, with at least one providing a photograph; and he or she submitted his or her own fingerprints in support of the criminal history background check provided for in this section. This attestation shall be retained by the department as a business record as defined in subdivision two of section 175.00 of the penal law in a manner prescribed in regulations of the commissioner. The commissioner shall also establish a form for the recordation of allegations of child abuse in an educational setting, as required pursuant to section eleven hundred twenty-six of this chapter. No person who has been fingerprinted pursuant to section three thousand four-b of this chapter or pursuant to section five hundred nine-cc or twelve hundred twenty-nine-d of the vehicle and traffic law and whose fingerprints remain on file with the division of criminal justice services shall be required to undergo fingerprinting for purposes of a new criminal history record check. This subdivision and the rules and regulations promulgated pursuant thereto shall not apply to a school district within a city with a population of one million or more, or to special education schools located within such city.

(b) The commissioner, in cooperation with the division of criminal justice services, shall promulgate a form to be provided to all such prospective employees of school districts, charter schools, boards of cooperative educational services, special education schools and nonpublic and private elementary and secondary schools that elect to fingerprint and seek clearance for prospective employees that shall:

(i) inform the prospective employee that the commissioner is required or authorized to request his or her criminal history information from the division of criminal justice services and the federal bureau of investigation and review such information pursuant to this section, and provide a description of the manner in which his or her [fingerprint cards] fingerprints will be taken and used upon submission to the division of criminal justice services;

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(ii) inform the prospective employee that he or she has the right to obtain, review and seek correction of his or her criminal history information pursuant to regulations and procedures established by the division of criminal justice services.

§ 2. Subparagraph (vii) of paragraph (c) of subdivision 30 of section 305 of the education law, as amended by chapter 630 of the laws of 2006, is amended to read as follows:

(vii) been informed that in the event his or her employment is terminated and such person has not become employed in the same or another school district, charter school, board of cooperative educational services, special education school or nonpublic or private elementary or secondary school within twelve-months of such termination, the commissioner shall notify the division of criminal justice services of such termination, and the division of criminal justice services shall destroy the fingerprints of such person. Such person may request that the commissioner notify the division of criminal justice services that his or her fingerprints shall be destroyed prior to the expiration of such twelve month period in which case the commissioner shall notify the division of criminal justice services and the division shall destroy the fingerprints of such person promptly upon receipt of the request; and

§ 3. Paragraph (d) of subdivision 30 of section 305 of the education law, as amended by chapter 630 of the laws of 2006, is amended to read as follows:

(d) The commissioner shall develop forms to be provided to all school districts, charter schools, boards of cooperative educational services, special education schools and to all nonpublic and private elementary and secondary schools that elect to fingerprint their prospective employees, to be completed and signed by prospective employees when conditional appointment or emergency conditional appointment is offered.

§ 4. Subdivision 30 of section 305 of the education law is amended by adding a new paragraph (f) to read as follows:

(f) As used in this section and section three thousand thirty-five of this chapter, "special education school" shall mean a state school operated pursuant to article eighty-seven or eighty-eight of this chapter, a state-supported school operated pursuant to article eighty-five of this chapter, an approved private non-residential or residential school for the education of students with disabilities that is located within the state, or an approved provider of preschool special education services or programs that is located within the state; provided that such term shall not apply to a school or facility operated or licensed by a state agency other than the department, unless such school or facility is also an approved private school for students with disabilities or an approved provider under section forty-four hundred ten of this chapter.

§ 5. Subdivisions 3, 4, 5 and 6 of section 1125 of the education law, subdivisions 3, 4 and 6 as added by chapter 180 of the laws of 2000 and subdivision 5 as amended by section 1 of part E of chapter 501 of the laws of 2012, are amended and a new subdivision 10 is added to read as follows:

3. "Employee" shall mean any person receiving compensation from a school district, non-residential special education school or program, or employee of a contracted service provider or worker placed within the school under a public assistance employment program, pursuant to title nine-B of article five of the social services law, and consistent with the provisions of such title for the provision of services to such district, its students or employees, directly or through contract,

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whereby such services performed by such person involve direct student contact.

4. "Volunteer" shall mean any person, other than an employee, who provides services to a school or school district or non-residential special education school or program, which involve direct student contact.

5. "Educational setting" shall mean the building and grounds of a public school district, non-residential special education school or program, the vehicles provided by the school district for the transportation of students to and from school buildings, field trips, co-curricular and extra-curricular activities both on and off school district grounds, all co-curricular and extra-curricular activity sites, and any other location where direct contact between an employee or volunteer and a child has allegedly occurred, except that such term shall not apply to the residential component of a facility, as defined in section four hundred eighty-eight of the social services law, for whom allegations of abuse of a child in residential care or neglect of a child in residential care are subject to mandatory reporting to the statewide central register of child abuse and maltreatment pursuant to title six of article six of the social services law. Such term shall not include a special act school district as defined in section four thousand one of this chapter which shall be subject to article eleven of the social services law.

6. "Administrator" or "school administrator" shall mean a principal of a public school, non-residential special education school or program, charter school or board of cooperative educational services, or other chief school officer.

10. "Non-residential special education school or program" shall mean a state supported school operated pursuant to article eighty-five of this chapter that does not have a residential component, an approved private non-residential school for the education of students with disabilities that is located within the state, or an approved provider of preschool special education services or programs that is located within the state; provided that such term shall also apply to an approved private residential school or approved provider of preschool special education that provides a residential program that also provides a day program or other non-residential program if the students in such non-residential program are not children in a facility as defined in section four hundred eighty-eight of the social services law, for whom allegations of abuse of a child in residential care or neglect of a child in residential care are subject to mandatory reporting to the statewide central register of child abuse and maltreatment pursuant to title six of article six of the social services law.

§ 6. Subdivision 2 of section 1126 of the education law, as added by chapter 180 of the laws of 2000, is amended to read as follows:

2. [In] (a) Except as otherwise provided in paragraph (b) of this subdivision, in any case where it is alleged that a child was abused by an employee or volunteer of a school other than a school within the school district of the child's attendance, the report of such allegations shall be promptly forwarded to the superintendent of schools of the school district of the child's attendance and the school district where the abuse allegedly occurred, whereupon both school superintendents shall comply with sections eleven hundred twenty-eight and eleven hundred twenty-eight-a of this article.

(b) In the case of a non-residential special education school, where it is alleged that a child was abused by an employee or volunteer of

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such non-residential special education school, the report of such allegations shall be promptly forwarded to the administrator of such school, who shall be responsible for compliance with all the provisions of this article that apply to superintendents of schools.

§ 7. Subdivision 1 of section 1128-a of the education law, as added by chapter 180 of the laws of 2000, is amended to read as follows:

1. Where a superintendent of schools or school administrator forwards to law enforcement a report as described in paragraph (a) of subdivision one of section eleven hundred twenty-six of this article, he or she shall refer such report to the commissioner where the employee or volunteer alleged to have committed an act of child abuse as defined in this article holds a certification or license issued by the department.

§ 8. Subdivision 3 of section 1133 of the education law, as added by chapter 180 of the laws of 2000, is amended to read as follows:

3. Any superintendent of schools or school administrator who reasonably and in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.

§ 9. Paragraph a of subdivision 39 of section 1604 of the education law, as amended by chapter 147 of the laws of 2001, is amended to read as follows: