1. (1) Staff members must be qualified by training and experience to carry out their respective functions in the administration and operation of the agency and in the provision of adoption services for children and families. Consistent with any appropriate bargaining agreement(s) and, where applicable, provisions of the Civil Service Law, an authorized agency operating an adoption program must establish a procedure to review and evaluate the backgrounds of and information supplied by applicants for employee or volunteer positions. As part of this procedure, the agency must require such applicants to submit all of the following information:

   1. (i) a statement or summary of each applicant's employment history, including but not limited to any relevant child-caring experience;
   2. (ii) the names, addresses and, where available, telephone numbers of references who can verify the applicant's employment history, work record and qualifications;
   3. (iii) the names, addresses and telephone numbers of at least three personal references, other than relatives, who can attest to the applicant's character, habits, reputation and personal qualifications; and
   4. (iv) a sworn statement by the applicant indicating whether, to the best of the applicant's knowledge, the applicant has ever been convicted of a crime in New York State or any other jurisdiction.
2. (2) If an applicant discloses in the sworn statement furnished in accordance with subparagraph (1)(iv) of this subdivision that he/she has been convicted of a crime, the agency must determine, in accordance with guidelines developed and disseminated by the department, whether to hire or use any such applicant, except that any local social services district which had guidelines for the review of persons with conviction records in use prior to January 1, 1986 may continue to use the district guidelines in making the required determination. If the agency determines it will hire the person or use the person as a volunteer, the agency must maintain a written record, as part of the application file or employment or other personnel record of such person, of the reason(s) why such person was determined to be appropriate and acceptable as an employee or volunteer.

3. (3) Each agency must inquire of the department whether any person who is actively being considered for employment or any individual or any person who is employed by an individual, corporation, partnership or association which provides goods or services to such agency and who will have the potential for regular and substantial contact with children being cared for by the agency is the subject of an indicated report of child abuse or maltreatment on file with the State Central Register of Child Abuse and Maltreatment. The agency may make such an inquiry to the department regarding any current employee or a person who is being considered for use as a volunteer or for hiring as a consultant and who has or will have the potential for regular and substantial contact with children being cared for by the agency. An inquiry regarding any current employee may be made only once in any six-month period. Inquiries made pursuant to this paragraph will be subject to the following provisions:

   1. (i) Prior to making an inquiry to the department, the agency must notify, in the form prescribed by the department, the person who will be the subject of the inquiry that an inquiry will be made to determine whether such person is the subject of an indicated report of child abuse or maltreatment on file with the State Central Register of Child Abuse and Maltreatment.
   2. (ii) If the applicant, employee, or any other person about whom the agency has made an inquiry is found to be the subject of an indicated report of child abuse or maltreatment, the agency must determine, on the basis of information it has available and in accordance with guidelines developed and disseminated by the department, whether to hire, retain or use the person as an employee, volunteer, or consultant or to permit the person providing goods or services to have access to children being cared for by the agency, except that any local social services district which had guidelines for the review of persons who are the subjects of indicated reports of child abuse or maltreatment in use prior to January 1, 1986 may continue to use the district guidelines in making the required determination. Whenever such person is hired, retained, used or given access to children, the agency must maintain a written record, as part of the application file or employment or other personnel record of such person, of the specific reason(s) why such person was determined to be appropriate and acceptable as an employee, volunteer, consultant, or provider of goods or services with access to children being cared for by the agency.

   3. (iii) If a denial of an application for employment or a decision not to retain a current employee, not to use a volunteer, not to hire a consultant, or not to permit a person providing goods or services to have access to children who are being cared for by the agency is based in whole or in part on the existence of an indicated report of child abuse or maltreatment, the agency must provide a written statement to the applicant, employee, volunteer, consultant, or other person indicating whether the denial or decision was based in whole or in part on the existence of the indicated report of child abuse or maltreatment and, if so, the reasons for such denial or decision. If the denial or other negative decision was based in whole or in part on the indicated report, the statement must also include, in the form prescribed by the department:

      1. (a) written notification to the applicant, employee, volunteer, consultant, or other person that he/she has a right, pursuant to section 424-a of the Social Services Law, to request a hearing before the department regarding the record maintained by the State Central Register of Child Abuse and Maltreatment;
      2. (b) a statement indicating that a request for such a hearing must be made within 90 days of the receipt of the notice of denial or decision indicating that the denial or decision was based in whole or in part on the existence of the indicated report; and
      3. (c) a statement indicating that the sole issue at any such hearing will be whether the applicant, employee, volunteer, consultant, or other person who is the subject of the indicated report has been shown by a fair preponderance of the evidence to have committed the act or acts of child abuse or maltreatment giving rise to the indicated report.

   4. (iv) If, in a hearing held pursuant to a request made in accordance with subparagraph (iii) of this paragraph and section 424-a of the Social Services Law, the department fails to show by a fair preponderance of the evidence that the applicant, employee, volunteer, consultant or other person committed the act or acts upon which the indicated report is based, the department will notify the agency which made the inquiry to the department that, pursuant to the hearing decision, its decision to deny the application for employment, discharge the employee, or not to use the volunteer, not to hire the person as a consultant or not to allow the person to have access to children, should be reconsidered. Upon receiving such notification from the department, the agency should review its decision without considering the indicated report.

      (4)

   5. (i) Each agency under this section is required to check applicants for employment and volunteer positions as well as contractors and consultants, with the register of substantiated category one cases of abuse or neglect maintained by the Justice Center for the Protection of People with Special Needs, before determining whether to hire or otherwise allow any person to be an employee, administrator, consultant, intern, volunteer or contractor who will have the potential for regular and substantial contact with children being served for by the agency.
   6. (ii) If an applicant under this section is listed on the register of substantiated category one cases of abuse or neglect maintained by the Justice Center for the Protection of People with Special Needs, the agency shall determine, on the basis of information it has available and in accordance with guidelines developed and disseminated by the department, whether to hire, retain or use the person as an employee, volunteer, or consultant or to permit the person providing goods or services to have access to children being cared for by the agency. Whenever such person is hired, retained, used or given access to children, the agency must maintain a written record, as part of the application file or employment or other personnel record of such person, of the specific reason(s) why such person was determined to be appropriate and acceptable as an employee, volunteer, consultant, or provider of goods or services with access to children being cared for by the agency.

(a)