Relates to filing and investigation of reports alleging educational neglect; requires a hearing prior to filing a report with the local social services department and requires that the report be expunged where the report is determined to be unfounded.
TITLE OF BILL: An act to amend the social services law, in relation to reports of educational neglect by school districts
PURPOSE OR GENERAL IDEA OF BILL: To promote the efficient administration of neglect proceedings.
SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends subdivision 8 of section 34-a of the social services law. Section 2 amends paragraph c of subdivision 5 of section 422 of the social services law. Section 3 is the effective date.
JUSTIFICATION: An investigation into an allegation of educational neglect is administered by the State in the same manner as an allegation of maltreatment, physical abuse or sexual abuse. In all cases a call is made to the Statewide Central Registry (SCR), and if the report is accepted, an investigation commences. That investigation can be determined to be "unfounded" if the facts don't corroborate the allegation, or can be "indicated" if there is credible evidence that the child is endangered.
All indicated reports are maintained by the SCR, and the information is available to child care employers, child protective agencies and the police for at least ten years, and in some instances, twenty years or more. An unfounded report is retained on the SCR for the same amount of time, but is only available to police or child protective agencies.
The SCR system serves children because an unfounded report may help inform a subsequent investigation of abuse or maltreatment. A person can have their record expunged if the source of the report was convicted of falsely making that report, or if the subject can affirmative refute the allegation to the satisfaction of the Office of Children and Family Services (OCFS) by a clear and convincing standard of evidence. These are difficult standards to meet. This system works well in abuse and maltreatment situations, given the potential risk to children.
However, reports to the SCR alleging educational neglect can be made in response to a broad range of situations, given the school district's internal policies. In August of 2006, the Legislature directed OCFS and the State Education Department to develop model policies which local school and social services districts could follow in order to protect children who were the victims of educational neglect. Educational neglect is defined under that policy as "the failure of a parent to ensure that child's prompt and regular attendance in school or the keeping of a child out of school for impermissible reasons resulting in an adverse affect on the child's educational progress or imminent danger of such an adverse affect."
The Committee on Children and Families has learned of several instances where school districts across the State have filed
educational neglect petition when parents objected to their child's assignment to a special education program. In each of these cases, the charge of educational neglect was filed before the Independent Educational Plan evaluation was conducted. Even though these parent were exonerated of any charge by the child protective investigation which followed, the unfounded reports remains a matter of record for approximately a decade.
The burden is on these individuals to disprove the allegations to the satisfaction of OCFS. It is unreasonable and inappropriate to demand that this person satisfy the clear and convincing evidence standard, which is the most stringent standard applied in civil cases, in order to clear their record of an unfounded report stemming from a disagreement over their child's educational plan.
Educational neglect is unlike other abuse and maltreatment cases. Though allegations of educational neglect are serious, they can, as highlighted above, occur in situations which do not point to abuse or maltreatment. Accordingly, this legislation prevents a school district from alleging a case of educational neglect unless any necessary hearings by the committee on special education have occurred. Further, if any investigation of educational neglect is found to be without merit, the subject's record must be expunged.
PRIOR LEGISLATIVE HISTORY: First introduced in 2010.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ 362 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and when printed to be committed to the Committee on Social Services AN ACT to amend the social services law, in relation to reports of educational neglect by school districts THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 8 of section 34-a of the social services law, as added by chapter 543 of the laws of 2006, is amended to read as follows: 8. The commissioner of the office of children and family services shall, in conjunction with the commissioner of education, develop model practices and procedures for local social services districts and school districts regarding the reporting and investigation of educational neglect. SUCH POLICIES SHALL REQUIRE THAT A HEARING BY THE COMMITTEE ON SPECIAL EDUCATION, OR SUCH OTHER APPROPRIATE HEARING BODY, SHALL BE CONDUCTED AND CONCLUDED PRIOR TO THE FILING OF ANY REPORT WITH THE LOCAL SOCIAL SERVICES DISTRICT ALLEGING EDUCATIONAL NEGLECT. Such model prac- tices and procedures shall be available to social services districts and school districts and shall be posted on the office of children and fami- ly services website and the state department of education website by September first, two thousand seven. Each social services district shall, in conjunction with local school districts within its district, submit written policies and procedures regarding the reporting of educa- tional neglect by each school district within such social services district and the investigation of educational neglect allegations by child protective services. Such policies and procedures shall be submit- ted to the office of children and family services for review by January first, two thousand eight and the office shall approve or disapprove such local policies and procedures, based upon the model practices andEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02373-01-1 S. 362 2
procedures established in conjunction with the state department of education, within sixty days of submission. S 2. Paragraph (c) of subdivision 5 of section 422 of the social services law, as added by chapter 555 of the laws of 2000, is amended to read as follows: (c) Notwithstanding any other provision of law, the office of children and family services may, in its discretion, grant a request to expunge an unfounded report where: (i) the source of the report was convicted of a violation of subdivision three of section 240.55 of the penal law in regard to such report; or (ii) the subject of the report presents clear and convincing evidence that affirmatively refutes the allegation of abuse or maltreatment; provided however, that the absence of credible evidence supporting the allegation of abuse or maltreatment shall not be the sole basis to expunge the report, EXCEPT THAT WHERE THE MALTREATMENT ALLEGED WAS BASED UPON A CLAIM OF EDUCATIONAL NEGLECT AND SUCH REPORT WAS DETERMINED TO BE UNFOUNDED THE OFFICE SHALL EXPUNGE THE REPORT BASED SOLELY UPON SUCH FINDING. Nothing in this paragraph shall require the office of children and family services to hold an administrative hearing in deciding whether to expunge a report. Such office shall make its determination upon reviewing the written evidence submitted by the subject of the report and any records or information obtained from the state or local agency which investigated the allegations of abuse or maltreatment. S 3. This act shall take effect immediately.