senate Bill S362

2011-2012 Legislative Session

Relates to filing and investigation of reports alleging educational neglect

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to social services
Jan 05, 2011 referred to social services

S362 - Bill Details

See Assembly Version of this Bill:
A3242
Current Committee:
Law Section:
Social Services Law
Laws Affected:
Amd ยงยง34-a & 422, Soc Serv L
Versions Introduced in 2009-2010 Legislative Session:
S5974

S362 - Bill Texts

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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.

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BILL NUMBER:S362

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.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   362

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (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  and

 EXPLANATION--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.

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