EDU-20-07-00013-P Fingerprinting and Criminal History Record Check

5/16/07 N.Y. St. Reg. EDU-20-07-00013-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 20

May 16, 2007

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-20-07-00013-P

Fingerprinting and Criminal History Record Check

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed action:

Amendment of sections 80-1.11, 87.1, 87.2, 87.4, 87.5, 87.6, 87.8 and addition of section 87.10 to Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided), 305(30), 3001-d and 3035

Subject:

Requirements relating to the fingerprinting and criminal history record of prospective employees of nonpublic and private elementary and secondary schools.

Purpose:

To set forth the requirements and procedures for the fingerprinting and criminal history record check of prospective school employees of nonpublic and private elementary or secondary schools in order to implement the requirements of chapter 630 of the Laws of 2006.

Substance of proposed rule (Full text is posted at the following State website: http://www.highered.nysed.gov/part87amendment.htm):

The Board of Regents proposes to amend Sections 80-1.11, 87.1, 87.2, 87.4, 87.5, 87.6, 87.8 and add Section 87.10 to the Regulations of the Commissioner of Education relating to the authorization of nonpublic and private elementary schools to apply to the Commissioner of Education for criminal history record checks on prospective employees.

Section 80-1.11 is amended to delete the exception from the requirements of Part 87 for a criminal history record check for individuals who apply for a permanent certificate and hold a valid provisional certificate, applied for prior to July 1, 2001, in the same title for which a permanent certificate is sought.

Section 87.1 is amended to clarify that the purpose of Part 87 is to set forth the requirements and procedures for the fingerprinting and criminal history record review for prospective school employees for service in covered schools, including any nonpublic or private elementary or secondary school that elects to fingerprint and seek a criminal history record review from the Department for its prospective employees.

Subdivisions (a), (b) and (d) of Section 87.2 are amended to clarify the definitions of clearance for certification, clearance for employment and conditional clearance for employment so that these definitions include nonpublic or private elementary and secondary schools that elect to apply to the Department for criminal history record checks on prospective employees.

Subdivision (c) and (j) of Section 87.2 is amended to provide the statutory authority for conditional appointment and emergency conditional appointment for prospective employees of nonpublic or private elementary or secondary schools that elect to fingerprint and seek clearance from the Department for prospective employees beginning July 1, 2007.

Subdivision (e) of Section 87.2 is amended to include in the definition of a covered school any nonpublic or private elementary or secondary school that elects to fingerprint and seek clearance for prospective employees from the Department beginning July 1, 2007. It also clarifies that covered schools must be geographically located in New York State.

Subdivision (i) of Section 87.2 amends the definition of designated fingerprinting entity to include a nonpublic or private elementary or secondary school that elects to fingerprint and seek clearance from the Department for prospective employees beginning July 1, 2007.

Section 87.4 is amended to clarify that the requirements in Part 87 apply to prospective employees appointed to compensated positions in a nonpublic or private elementary or secondary school on or after July 1, 2007 if such school elects to fingerprint and seek clearance from the Department for prospective employees and does not apply to employees of such schools appointed prior to July 1, 2007. The proposed amendment further clarifies that prospective employees of nonpublic or private elementary or secondary schools who commence providing services on or after July 1, 2007 will be subject to the requirements of this section when such prospective school employees are: employees of a provider of contracted services to the covered school, or workers who are placed within the covered school under a public assistance employment program pursuant to title 9-B of article V of the Social Services Law, directly or through contract, or in compensated positions at the covered school not appointed by official action of the governing body of such covered school.

Subdivisions (a) and (b) of Section 87.4 are amended to clarify that all prospective school employees who are not in the SED criminal history file shall be fingerprinted. These amendments further clarify that school employees shall request that the designated fingerprinting entity transmit a sufficient number of fingerprints to the Department. Previously, this section required two sets of completed fingerprint cards, but the Department may need more or less than two sets to perform their criminal history record check.

Paragraph (5) of subdivision (a) and paragraph (3) of subdivision (b) of Section 87.4 are deleted to conform with current practice and procedures.

Section 87.5 is amended to permit the Department to consider not only the criminal history record, but any related information obtained by the Department pursuant to the review of such record when the criminal history record check reveals that the prospective school employee was convicted of a crime or has a pending criminal charge.

Sections 87.5 and 87.6 are also amended to reflect the new title of the executive director of the Office of Teaching Initiatives to the Assistant Commissioner of the Office of Teaching Initiatives.

Section 87.8 is amended to provide that the fee for a criminal history record search may also be paid by credit card. This amendment also changes the term school district in this section to covered school to conform with the terms of the regulation.

Section 87.10 is added to provide special requirements for nonpublic or private elementary or secondary schools that elect to fingerprint and seek clearance for prospective employees beginning July 1, 2007. Specifically, this section requires that any nonpublic or private elementary or secondary school that elects to submit to the Department requests for criminal history record review of prospective employees to notify the Assistant Commissioner of the Office of Teaching Initiatives, or his designee, of its intent to elect to fingerprint and seek clearance on a form prescribed by the Department through the Department's TEACH online services system. It further requires that any nonpublic or private elementary or secondary school that elects to submit requests for review to do so for each prospective employee and to develop a policy for the safety of the children who have contact with an employee holding conditional appointment or emergency conditional appointment.

Text of proposed rule and any required statements and analyses may be obtained from:

Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Johanna Duncan-Poitier, Senior Deputy Commissioner of Education - P16, Education Department, 2M West Wing, Education Bldg., 89 Washington Ave., Albany, NY 12234, [phone], e-mail: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Section 207 of the Education Law grants general rule making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Paragraph (a) of subdivision (30) of section 305 of the Education Law authorizes the Commissioner of Education to promulgate regulations to authorize 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 (“DCJS”) and the Federal Bureau of Investigation (“FBI”) based on the use of such fingerprints. This paragraph also requires the Commissioner, in cooperation with DCJS to promulgate a form to be provided to nonpublic or private elementary or secondary schools in connection with the submission of fingerprints and a form for the recordation of allegations of child abuse in an educational setting.

Paragraph (b) of subdivision (30) of Section 305 of the Education Law requires the Commissioner of Education, in cooperation with DCJS to promulgate a form to be provided to all prospective employees of nonpublic and private elementary and secondary schools that elect to fingerprint and seek clearance for prospective employees to inform the prospective employee that the Commissioner is authorized to request his or her criminal history information and that the employee has the right to obtain, review and seek correction of such information.

Paragraph (c) of subdivision (30) of Section 305 of the Education Law requires the prospective employer to obtain the signed, informed consent of the prospective employee on a form supplied by the Commissioner of Education.

Paragraph (d) of subdivision (30) of Section 305 of the Education Law requires the Commissioner to develop forms to be provided to all nonpublic or 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.

Subdivision (2) of section 3001-d of the Education Law authorizes nonpublic or private elementary or secondary schools to apply to the Commissioner for criminal history record checks on prospective employees.

Paragraph (a) of subdivision (3) of section 3001-d authorizes a nonpublic or private elementary or secondary school to conditionally appoint a prospective employee. A request for conditional clearance may be forwarded to the Commissioner with the prospective employee's fingerprints.

Paragraph (b) of subdivision (3) of section 3001-d authorizes a nonpublic or private elementary or secondary school to make an emergency conditional appointment when an unforeseen emergency vacancy has occurred.

Paragraph (c) of subdivision (3) of section 3001-d requires each nonpublic or private elementary or secondary school, which elects to fingerprint prospective employees, to develop a policy for the safety of the children who have contact with an employee holding conditional appointment or emergency conditional appointment.

Subdivision (4) of section 3001-d authorizes the Commissioner to charge additional fees to applicants for certificates in an amount equal to the fees established pursuant to law by the division of criminal justice services and the federal bureau of investigation for the searches authorized by this section.

Subdivision (1) of section 3035 of the Education Law authorizes the Commissioner of Education to submit to DCJS two sets of fingerprints for prospective school employees along with processing fees, for the purpose of obtaining criminal history records from DCJS and the FBI.

Paragraph (a) of subdivision (3) of section 3035 of the Education Law requires the Commissioner of Education to promptly notify the nonpublic or private elementary or secondary school when the prospective school employee is cleared for employment based on his or criminal history and provides a prospective school employee who is denied clearance the right to be heard and offer proof in opposition to such determination in accordance with the Regulations of the Commissioner of Education.

Paragraph (b) of subdivision (3) of section 3035 of the Education Law requires the Commissioner of Education to promptly notify the prospective employee and the appropriate nonpublic or private elementary or secondary school when a prospective employee is conditionally cleared for employment based upon his or her criminal history or that more time is needed to make the determination.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the objectives of the above-referenced statutes by establishing requirements and procedures necessary to implement the statutory requirements prescribed in Chapter 630 of the Laws of 2006. That statute authorizes nonpublic and private schools to require their prospective school employees to be fingerprinted, to undergo a criminal history check, and be cleared for employment by the State Education Department.

3. NEEDS AND BENEFITS:

The purpose of the proposed amendment is to set forth requirements and procedures for the fingerprinting and the criminal history record check of prospective nonpublic and private school employees in order to implement the requirements set forth in sections 305, 3001-d and 3035 of the Education Law, as amended by Chapter 630 of the Laws of 2006. Specifically, the proposed amendment makes the following major changes:

In order to conform the regulations to the requirements set forth in Sections 305, 3001-d and 3035 of the Education Law, as amended by Chapter 630 of the Laws of 2006, the proposed amendment revises the definitions in Part 87 for clearance for employment, conditional appointment, conditional clearance for employment and covered school to permit nonpublic and private schools to seek such clearances and appointments from the Department beginning July 1, 2007. The proposed amendment also authorizes nonpublic or private elementary or secondary schools to be a designated fingerprinting entity if they choose to fingerprint prospective school employees.

The proposed amendment further clarifies that the fingerprinting and criminal history record check requirements under Part 87 apply to all prospective school employees appointed to compensated positions in a nonpublic or private elementary school that elects to fingerprint and seek clearance from the Department for prospective employees on or after July 1, 2007 and not to prospective employees appointed to such schools prior to July 1, 2007.

The amendment authorizes the Department to consider the criminal history record and any related information obtained by the Department pursuant to such review, when the criminal history record check reveals that the prospective school employee was convicted of a crime or has a pending criminal charge.

The proposed amendment also makes technical changes to the due process requirements of Part 87 to reflect the change in title of the executive director of the Office of Teaching Initiatives to the Assistant Commissioner of the Office of Teaching Initiatives. The amendment also clarifies that the Department will accept a credit card for the fee charged for a criminal history information request under Part 87 to conform with current practice.

In order to implement the requirements of Chapter 630 of the Laws of 2006, the proposed amendment also requires that beginning July 1, 2007, any nonpublic or private elementary or secondary school that elects to fingerprint and seek clearance from the Department for prospective employees must notify the Assistant Commissioner of the Office of Teaching Initiatives, or his designee, on forms provided by the Department of its intent to seek clearance from the Department through the Department's TEACH online services system.

The amendment further clarifies that any nonpublic or private elementary or secondary school that elects to submit requests for criminal history record review to the Department for prospective employees shall do so with respect to each such prospective employee and shall develop a policy for the safety of the children who have contact with an employee holding conditional appointment or emergency appointment.

4. COSTS:

(a) Costs to State government: The proposed amendment implements specific statutory mandates. Accordingly, the costs of the proposed amendment are directly attributable to the statutory requirements. The State Education Department has requested an appropriation of $380,000 to administer the new statutory requirements.

(b) Costs to local government: The proposed amendment implements specific statutory directives, applicable to nonpublic and private schools. All of the additional requirements in the proposed amendment are imposed by Chapter 630 of the Laws of 2006. Accordingly, the proposed amendment will not result in additional costs upon local government beyond those imposed by the statute.

(c) Costs to private regulated parties: As stated above, the proposed amendment implements the requirements of Chapter 630 of the Laws of 2006. The costs to private regulated parties are also attributable to the statute.

Chapter 630 of the Laws of 2006 authorizes nonpublic or private elementary and secondary schools to elect to have their prospective employees to be fingerprinted and undergo a criminal history review by the Department. The Department estimates that approximately 10,000 individuals will be fingerprinted each year and undergo a criminal history record check and a review for purposes of clearance for employment. The statute authorizes the Commissioner of Education to collect a fee for the criminal history check in an amount equal to the fees established pursuant to law by the Division of Criminal Justice Services (“DCJS”) and the Federal Bureau of Investigation (“FBI”) for the criminal history search. The proposed amendment mirrors this statutory language. The combined fee for the search by DCJS and the FBI is currently $99. Under the proposed regulatory framework, an individual who was fingerprinted and is in the Department's criminal history file will not have to pay any fee for additional clearances for employment.

(d) Costs to the regulatory agency: As stated above in “Costs to State Government,” the proposed amendment will not impose additional costs on the Department beyond those required by Chapter 630 of the Laws of 2006.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose additional requirements beyond those prescribed in the statute.

6. PAPERWORK:

The proposed amendment does not impose additional requirements beyond those prescribed in the statute.

7. DUPLICATION:

The proposed amendment does not duplicate other requirements of State and Federal government.

8. ALTERNATIVES:

There are no viable alternatives to the proposed amendment, and none were considered. The amendment implements statutory requirements.

9. FEDERAL STANDARDS:

There are no Federal requirements relating to the subject matter of the proposed amendment.

10. COMPLIANCE SCHEDULE:

Consistent with the effective date of the statute, the proposed amendment applies to employees appointed by official action of the governing body of any nonpublic or private elementary or secondary school after July 1, 2007 if such school has provided written notice to the Department that it elects to have their prospective employees fingerprinted and undergo a criminal history record review by the Department.

Regulatory Flexibility Analysis

(a) Small Businesses:

1. EFFECT OF RULE:

The proposed amendment to the Regulations of the Commissioner of Education applies to each of the approximately 2,100 nonpublic and private schools located in New York State that apply to the Commissioner of Education for criminal history record checks on prospective employees. The Department estimates that of these 2,100 nonpublic and private schools, approximately 110 of these are for-profit businesses with less than 100 employees.

2. COMPLIANCE REQUIREMENTS:

Chapter 630 of the Laws of 2006 amends sections 305 and 3035 and adds a new section 3001-d to the Education Law to authorize nonpublic and private elementary or secondary schools to require their prospective employees to be fingerprinted and undergo a criminal history record check by the Department. The purpose of the proposed amendment is to implement these requirements. It does not impose additional requirements beyond those prescribed in Chapter 630 of the Laws of 2006.

In order to conform the regulations to the requirements set forth in Sections 305, 3001-d and 3035 of the Education Law, as amended by Chapter 630 of the Laws of 2006, the proposed amendment revises the definitions in Part 87 for clearance for employment, conditional appointment, conditional clearance for employment and covered school to permit nonpublic and private schools to seek such clearances and appointments from the Department beginning July 1, 2007. The proposed amendment also authorizes nonpublic or private elementary or secondary schools to become a designated fingerprinting entity if they choose to fingerprint prospective school employees.

The proposed amendment further clarifies that the fingerprinting and criminal history record check requirements under Part 87 apply to all prospective school employees appointed to compensated positions in a nonpublic or private elementary school that elects to fingerprint and seek clearance from the Department for prospective employees on or after July 1, 2007 and not to prospective employees appointed to such schools prior to July 1, 2007.

The amendment authorizes the Department to consider the criminal history record and any related information obtained by the Department pursuant to such review, when the criminal history record check reveals that the prospective school employee was convicted of a crime or has a pending criminal charge.

The proposed amendment also makes technical changes to the due process requirements of Part 87 to reflect the change in title of the executive director of the Office of Teaching Initiatives to the Assistant Commissioner of the Office of Teaching Initiatives. The amendment also clarifies that the Department will accept a credit card for the fee charged for a criminal history information request under Part 87 to conform with current practice.

In order to implement the requirements of Chapter 630 of the Laws of 2006, the proposed amendment further requires that beginning July 1, 2007, any nonpublic or private elementary or secondary school that elects to fingerprint and seek clearance from the Department for prospective employees must notify the Assistant Commissioner of the Office of Teaching Initiatives, or his designee, on forms provided by the Department of its intent to seek clearance from the Department through the Department's TEACH online services system.

The amendment further clarifies that any nonpublic or private elementary or secondary school that elects to submit requests for criminal history record review to the Department for prospective employees shall do so with respect to each such prospective employee and shall develop a policy for the safety of the children who have contact with an employee holding conditional appointment or emergency appointment.

3. PROFESSIONAL SERVICES:

The proposed amendment would not require a nonpublic or private school to hire additional professional services. However, if a nonpublic or private school chooses to become a designated fingerprinting entity so that it can fingerprint prospective employees, such schools may have to hire staff to do this function or may train existing staff to do the fingerprinting.

4. COMPLIANCE COSTS:

The proposed amendment implements specific statutory directives, applicable to nonpublic or private elementary or secondary schools that elect to fingerprint and seek clearance from the Department for their prospective employees. The requirements set forth in the proposed amendment are imposed by Chapter 630 of the Laws of 2006. Chapter 630 of the Laws of 2006 authorizes nonpublic or private elementary and secondary schools to elect to have their prospective employees to be fingerprinted and undergo a criminal history review by the Department. The Department estimates that approximately 10,000 individuals will be fingerprinted each year and undergo a criminal history record check and a review for purposes of clearance for employment. The statute authorizes the Commissioner of Education to collect a fee for the criminal history check in an amount equal to the fees established pursuant to law by the Division of Criminal Justice Services (“DCJS”) and the Federal Bureau of Investigation (“FBI”) for the criminal history search. The proposed amendment mirrors this statutory language. The combined fee for the search by DCJS and the FBI is currently $99. Under the proposed regulatory framework, an individual who was fingerprinted and is in the Department's criminal history file will not have to pay any fee for additional clearances for employment.

Accordingly, the proposed amendment will not result in additional costs beyond those imposed by the statute.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment will not impose any new technological requirements on nonpublic or private schools. Economic feasibility is addressed above under compliance costs.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment implements the requirements of Chapter 630 of the Laws of 2006. The intent of the statute is to help ensure the safety of school children by requiring prospective nonpublic and private school employees to be subject to a criminal history record check. Because of the nature of the proposed amendment, imposing different standards for nonpublic and private elementary and secondary schools that are small businesses would be inappropriate.

7. SMALL BUSINESS PARTICIPATION

Comments on the proposed regulation were solicited from nonpublic and private elementary or secondary schools across the State, including those that are considered small businesses.

(b) Local Governments:

The purpose of the proposed amendment is to set forth the requirements and procedures for the fingerprinting and the criminal history record check of prospective nonpublic and private school employees in order to implement the requirements set forth in sections 305, 3001-d and 3035 of the Education Law, as amended by Chapter 630 of the Laws of 2006. The proposed amendment will not impose an adverse economic impact or reporting, recordkeeping, or other compliance requirements on local governments. Because it is evident from the nature of the proposed rule that it does not affect local governments, no further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for local governments is not required and one has not been prepared.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment applies to all nonpublic and private schools in the State and their prospective employees, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less. The Department estimates that there are approximately 2,100 nonpublic and private elementary or secondary schools located in such counties.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment does not impose additional requirements beyond those prescribed in Chapter 630 of the Laws of 2006. As required by Chapter 630, the proposed amendment authorizes a nonpublic or private elementary or secondary school to require prospective school employees to be fingerprinted and cleared for employment by the Department, in the same manner as previously prescribed for employees of public schools, charter schools and boards of educational cooperative services pursuant to Chapter 180 of the Laws of 2000, as previously implemented in Part 87 of the Regulations of the Commissioner of Education.

In order to conform with the new requirements set forth in sections 305, 3001-d and 3035 of the Education Law, as amended by Chapter 630 of the Laws of 2006, the proposed amendment revises the definitions in Part 87 for clearance for employment, conditional appointment, conditional clearance for employment and covered school to permit nonpublic and private schools to seek such clearances and appointments from the Department beginning July 1, 2007. The proposed amendment also authorizes nonpublic or private elementary or secondary schools to become a designated fingerprinting entity if they choose to fingerprint prospective school employees.

The proposed amendment further clarifies that the fingerprinting and criminal history record check requirements under Part 87 apply to all prospective school employees appointed to compensated positions in a nonpublic or private elementary school that elects to fingerprint and seek clearance from the Department for prospective employees on or after July 1, 2007 and not to prospective employees appointed to such schools prior to July 1, 2007.

The amendment also authorizes the Department to consider the criminal history record and any related information obtained by the Department pursuant to such review, when the criminal history record check reveals that the prospective school employee was convicted of a crime or has a pending criminal charge.

The proposed amendment also provides technical changes to the due process requirements of Part 87 to reflect the change in title of the executive director of the Office of Teaching Initiatives to the Assistant Commissioner of the Office of Teaching Initiatives. In addition, in order to conform with current practice, the amendment also clarifies that the Department will accept a credit card for the fee charged for a criminal history information request under Part 87.

In order to implement the requirements of Chapter 630 of the Laws of 2006, the proposed amendment also requires that beginning July 1, 2007, any nonpublic or private elementary or secondary school that elects to fingerprint and seek clearance from the Department for prospective employees shall notify the Assistant Commissioner of the Office of Teaching Initiatives, or his designee, on forms provided by the Department of its intent to seek clearance from the Department through the Department's TEACH online services system.

The proposed amendment further clarifies that any nonpublic or private elementary or secondary school that elects to submit requests for criminal history record review to the Department for prospective employees shall do so with respect to each such prospective employee and shall develop a policy for the safety of the children who have contact with an employee holding conditional appointment or emergency appointment.

3. COSTS:

The proposed amendment implements specific statutory requirements for nonpublic and private schools and their prospective employees. All of the additional requirements are imposed by Chapter 630 of the Laws of 2006. Accordingly, the proposed amendment will not result in additional costs on these entities beyond those imposed by the statute. The Department estimates that about 10,000 individuals each year will be fingerprinted and undergo the criminal history record check. The statute authorizes the Commissioner of Education to collect a fee for the criminal history check in an amount equal to the fees established pursuant to law by the Division of Criminal Justice Services and the FBI for the criminal history search. The combined fee for the search by DCJS and the FBI is currently $99. Under the proposed regulatory framework, an individual who was fingerprinted and is in the Departments criminal history file will not have to pay a fee for additional clearances for employment and/or certification.

The proposed amendment would not require a nonpublic or private school to hire additional professional services. However, if a nonpublic or private school chooses to become a designated fingerprinting entity so that it can fingerprint prospective employees, such schools may have to hire staff to do this function or may train existing staff to do the fingerprinting.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment implements the requirements of Chapter 630 of the Laws of 2006. The statute makes no exception and does not impose different requirements for nonpublic and private schools located in rural areas, or for prospective school employees who live or work in rural areas. The proposed amendment has been carefully drafted to implement the statutory mandates. The intent of the statute is to help ensure the safety of school children by requiring prospective nonpublic and private school employees to be subject to a criminal history record check. Because of the nature of the proposed amendment, imposing different standards for rural entities would be inappropriate.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes representatives of school districts located in rural areas.

Job Impact Statement

The purpose of the proposed amendment is to set forth requirements and procedures for the fingerprinting and the criminal history record check of prospective nonpublic and private school employees in order to implement the requirements set forth in sections 305, 3001-d and 3035 of the Education Law, as amended by Chapter 630 of the Laws of 2006. Because the proposed amendment simply implements the statutory requirements, it will not have any impact on jobs and employment opportunities beyond the impact of the statute.

In any event, the requirements set forth in Chapter 630 of the Laws of 2006 will not have a substantial adverse impact on jobs and employment opportunities. First, the requirements of Chapter 630 do not affect the number of jobs or the number of employment opportunities. The statutory requirements will only impact whether a particular individual is qualified to obtain a position in a nonpublic or private elementary or secondary school. Secondly, the statutory requirements are not expected to cause a significant number of individuals to be found not qualified for school positions. According to the Division of Criminal Justice Services, only three to four percent of the general population has a criminal record. Of these, the Department estimates that only a small percentage, less than 25 percent, will have a sufficient criminal history that to warrant a denial of clearance for employment based on the standards set forth in Correction Law Section 752 and the factors specified in Correction Law Section 753. Also, the requirements of the statute only apply to nonpublic or private elementary or secondary schools that elect to have the Commissioner review their prospective employee's criminal history record.

Because it is evident from the nature of the proposed amendment that it will not have a substantial adverse impact on jobs and employment opportunities, no further steps were needed to ascertain these facts and none were taken. Accordingly, a job impact statement was not required and one was not prepared.