NY State Senate Bill 2019-S5526

Senate Bill S5526

2019-2020 Legislative Session

Relates to the administration of the statewide central register of child abuse and maltreatment; repealer

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Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to children and families
May 07, 2019	committee discharged and committed to children and families
May 06, 2019	referred to social services

co-Sponsors

2019-S5526 (ACTIVE) - Details

See Assembly Version of this Bill:: A7780
Current Committee:: Senate Children And Families
Law Section:: Social Services Law
Laws Affected:: Amd §§422 & 424-a, rpld §424-a sub 2 ¶¶(c), (d) & (e), Soc Serv L; amd §§1039 & 1051, Fam Ct Act

2019-S5526 (ACTIVE) - Summary

Details how the court shall notify any subjects of reports of abuse and maltreatment to children and changes all references of the department to the office of children and family services.

2019-S5526 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5526

SPONSOR: MONTGOMERY
 
TITLE OF BILL:  An act to amend the social services law and the family
court act, in relation to the administration of the statewide central
register of child abuse and maltreatment; and to repeal certain
provisions of the social services law relating thereto

 
PURPOSE:  This bill amends the Social Services Law to bring New York's
Statewide Central Register of Child Abuse and Maltreatment (SCR) in line
with other states that tailor the impact of indicated findings to the
individual's record. The bill eliminates duplicative proceedings, limits
employment consequences for cases that do not involve alleged abuse and
where the person has demonstrated rehabilitation, and updates the stat-
ute to accurately reflect current procedures that were developed to
comply with changes in the law. In short, the bill ensures fairness and
due process for people facing diminished employability for up to 28
years and eliminates harsh and disproportionate consequences.

 
SUMMARY OF PROVISIONS:

Section one shortens to five years the time period that indicated
reports of neglect in the SCR are available to employers. Currently ,
all indicated reports are maintained and available to employers for ten
years after the 18th birthday of the youngest child listed in the
report-up to 28 years-imposing exactly the same barrier to employment
for single instances of neglect as for the most egregious types of phys-
ical and sexual child abuse. Under this bill, indicated reports of
neglect remain available for ten years after the 18th birthday of the
youngest child listed in the report to investigators of subsequent alle-
gations of abuse and neglect and for the screening of potential foster
parents and kinship resources by child welfare agencies. This allows
child welfare agencies to conduct in dividual assessments of potential
foster parents and kinship resources to determine whether they should be
approved in light of their SCR record. Time limits regarding indicated
reports of abuse are not amended under this bill.

Sections two through four and six update the standard of review for SCR
fair hearings to comport with modern constitutional requirements. The
"some credible evidence" standard was found to be unconstitutional by
state and federal courts in the 1990s, but the Social Services Law has
not yet been updated to reflect this change in the law. Valmonte v.
Bane, 18 F.3d 992 (2d Cir. 1994); Matter of Lee TT, 87 N.Y.2d 699
(1996).

Sections two and six eliminate unnecessary proceedings and conserve
court resources. Currently, a person must request in writing that an SCR
report be amended and sealed within 90 days of receiving notice of it
even if they are in the midst of challenging the allegations in Family
Court. Fair hearings then receive multiple adjournments pending the
outcome of the court cases. This bill eliminates this wasteful overlap
of proceedings by setting the 90-day clock to start when an associated
Family Court case closes (the timeframe remains 90 days from notice if
there is no court case filed).

Section three also eliminates unnecessary and costly administrative
hearings in cases where a family court judge has already determined
there is no basis to find abuse or neglect. In such cases, the corre-
sponding SCR record would be automatically amended and sealed to reflect
that determination. Currently, a person must separately seek to chal-
lenge the SCR record even when a judge has fully addressed the allega-
tions.

Section five corrects a typo in the statute.

Section seven eliminates language to ensure that all SCR fair hearings
consider evidence of rehabilitation and whether an indicated report
should be sealed if it is not relevant to employment.

Section eight requires the local child protective service that investi-
gated an indicated report to notify the Office of Children and Family
Services of the outcome of any Family Court proceeding based on the same
allegations as the indicated report if there is a request to amend and
seal the report in the SCR.

Section nine amends the Family Court Act to update the requirements for
allocuting respondents who are making admissions or submissions to
neglect in Family Court to comport with the changes made to the Social
Services Law by this bill.

 
JUSTIFICATION:

Under current law, New Yorkers are routinely denied employment based on
unproven allegations of child abuse and neglect that remain accessible
to employers and others for up to twenty-eight years. The record of such
allegations is created based on a call to a state hotline, called the
State Central Register (SCR), either from mandated reporters or anony-
mous members of the public, alleging some form of child maltreatment.
That report is then investigated by a local child welfare agency and
deemed "indicated" if the agency finds "some credible evidence" to
support the allegations-a measure that New York's Court of Appeals has
acknowledged amounts to a "bare minimum" standard that "imposes no duty
on the fact finder to weigh conflicting evidence, no matter how substan-
tial, and allows a report to be indicated if only one out of several
believable items of evidence supports it." Matter of Lee TT, 87 N.Y.2d
699 (1996). Of these indicated cases, thousands are never reviewed by a
judge to determine whether the allegations can meet a higher level of
scrutiny that would warrant drastically limiting a person's employabili-
ty for up to 28 years. The current law's impact is enormous: nearly 5
0,000 indicated reports are added to the SCR every year.

The vast majority of allegations made to the SCR involve poverty-related
neglect, not child abuse. Common allegations of neglect include lack of
adequate housing, failure to provide adequate childcare, failure to
provide adequate education, and parental substance abuse. Under current
law, there is no distinction in the employment consequences imposed for
poverty-related neglect from the employment consequences for caregivers
who have committed the most egregious types of physical and sexual
abuse.

A wide range of employers are required to do SCR background checks
before hiring. These include not only childcare and educational provid-
ers, but a variety of entities providing services such as healthcare and
transportation if they serve children as well as adults.  Consequently,
an indicated report in the SCR severely hanipers a parent's ability to
keep or secure employment.

New York's Central Register laws are among the most stringent in the
nation. States like Illinois and Pennsylvania, for example, have more
flexible statutes that recognize the significant stigma and collateral
consequences faced by people with an indicated report in the SCR. In
Pennsylvania, indicated reports are maintained for 5 years after the
case is closed. Cons. Stat. Tit. 23, §§ 6337; 6338(b) Illinois distin-
guishes between reports that are indicated for abuse and neglect, allow-
ing indicated reports for neglect to be expunged after five years if no
additional reports are indicated. Comp.  Stat. Ch. 325, § 5/7.14. It is
time for New York law to distinguish neglect from abuse and tailor
collateral employment consequences to the individual. This would allow
caretakers to better provide for their families and reduce the number of
administrative reviews and fair hearings that the Office of Children and
Family Services is required to administer.

The current administrative process wastes resources on duplicative
proceedings because it does not coordinate the outcomes of Family Court
proceedings with SCR records. When a Family Court judge finds in favor
of the parent, the SCR report remains intact unless the parent seeks
review in the separate administrative process, which leads to unneces-
sary fair hearings. Additionally, because under current law people must
seek certain administrative review (review pursuant to Social Services
Law § 422) within 90 days of receiving notice of an indicated report,
even if they are in the process of challenging the allegations in Family
Court, fair hearings are often scheduled and then adjourned for many
months pending the outcome of court cases. By setting the 90-day clock
to start when an associated Family Court case closes, the bill elimi-
nates this wasteful overlap in proceedings (the timeframe remains 90
days from notice if there is no associated court case).

Finally, this bill updates the statute to follow existing governing case
law, codifying the changes to actual administrative procedures that were
implemented to comport with the decisions of the U.S.  Court of Appeals
and the New York Court of Appeals in Valmonte v.  Bane, 18 F.3d 992 (2d
Cir. 1994), and Matter of Lee TI', 87 N.Y.2d 699 (1996). This case law
requires a pre-deprivation fair hearing with a preponderance of the
evidence standard, and the bill would amend the statute to accurately
describe these current procedures.  Additionally, in striking down
portions of the statute as unconstitutional, these cases led to an unin-
tended anomaly in that some, but not all, SCR fair hearings consider
evidence of rehabilitation and whether an indicated report should be
sealed if it is not relevant to employment. Currently, people with indi-
cated reports are only provided a "relevancy analysis," at which sealing
the records based on evidence of rehabilitation is considered only if
they request a hearing within 90 days of notice of the indicated report.
Fair hearings are often requested and held years later, when there is
significant evidence of rehabilitation (for example, documentation of
compliance with an alcohol or drug treatment program and a track record
of long-term sobriety), but under current procedures, this evidence is
not considered and Administrative Law Judges do not have the option of
sealing indicated reports as they do in earlier hearings. This bill
would apply the relevancy standard to every hearing, allowing Adminis-
trative Law Judges to consider evidence of rehabilitation when it is
available.

In short, New York is long overdue to update the Social Services Law to
limit collateral consequences for parents, streamline court processes to
make the system more efficient and fair, and to amend the law to comport
with constitutional requirements. This bill will promote access to
employment for thousands of families every year at no cost to the state.

 
FISCAL IMPLICATIONS:

Revenue Neutral/Potential Revenue Savings

 
EFFECTIVE DATE:
Parts of this act shall take effect immediately and parts shall take
effect six months after it shall have become a law.

2019-S5526 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5526
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 6, 2019
                                ___________
 
 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 and the  family  court  act,  in
   relation  to  the  administration of the statewide central register of
   child abuse and maltreatment; and to repeal certain provisions of  the
   social services law relating thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 6 of section 422 of the social services law, as
 amended by section 7 of part D of chapter 501 of the laws  of  2012,  is
 amended to read as follows:
   6.  In  all  other  cases,  the  record of the report to the statewide
 central register shall be expunged ten years after the eighteenth birth-
 day of the youngest child named in the  report.    IN  CASES  WHERE  THE
 REPORT  WAS  INDICATED FOR MALTREATMENT, THE RECORD OF THE REPORT TO THE
 STATEWIDE CENTRAL REGISTER SHALL BE SEALED FIVE YEARS AFTER THE  RECEIPT
 OF  SUCH  REPORT.  REPORTS  SEALED PURSUANT TO THIS SUBDIVISION SHALL BE
 MAINTAINED IN THE STATEWIDE CENTRAL REGISTER, HOWEVER SUCH REPORTS SHALL
 NOT BE MADE AVAILABLE TO PROVIDER OR LICENSING AGENCIES EXCEPT THAT THEY
 SHALL BE MADE AVAILABLE TO  AUTHORIZED  AGENCIES  THAT  ARE  CONSIDERING
 LICENSING  THE  SUBJECT  OF  THE  REPORT  TO BECOME A FOSTER OR ADOPTIVE
 PARENT, AND TO CHILD PROTECTIVE SERVICES THAT ARE CONSIDERING RECOMMEND-
 ING THE SUBJECT OF THE REPORT AS A CUSTODIAL OR VISITATION RESOURCE.  In
 the  case of a child in residential care the record of the report to the
 statewide central  register  shall  be  expunged  ten  years  after  the
 reported  child's  eighteenth birthday. In any case and at any time, the
 commissioner of the office of children and family services may amend any
 record upon good cause shown and notice to the subjects  of  the  report
 and other persons named in the report.
   §  2.  Paragraph  (a)  of  subdivision  8 of section 422 of the social
 services law, as amended by chapter 12 of the laws of 1996, and subpara-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11481-01-9

 S. 5526                             2
 
 graph (ii) as amended by chapter 323 of the laws of 2008, is amended  to
 read as follows:
   (a)  (i) At any time subsequent to the completion of the investigation
 but in no event later than ninety days after the subject of  the  report
 is notified that the report is indicated OR NINETY DAYS AFTER THE DISPO-
 SITION  OF  A CASE PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT BASED
 ON THE SAME ALLEGATIONS, WHICHEVER IS LATER, the subject may request the
 commissioner to amend the record of the report.  [If] WHERE A PROCEEDING
 PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT BASED ON THE SAME  ALLE-
 GATIONS  THAT  WERE  INDICATED IS PENDING, THE REQUEST TO AMEND SHALL BE
 STAYED UNTIL THE DISPOSITION OF SUCH  FAMILY  COURT  PROCEEDING  OR  THE
 CONCLUSION  OF  ANY PERIOD OF ADJOURNMENT IN CONTEMPLATION OF DISMISSAL,
 WHICHEVER IS LATER. UNLESS SUCH REQUEST HAS BEEN STAYED, IF the  commis-
 sioner  does not amend the report in accordance with such request within
 ninety days of receiving the request, the subject shall have  the  right
 to  a fair hearing, held in accordance with paragraph (b) of this subdi-
 vision, to determine whether the record of the  report  in  the  central
 register should be amended on the grounds that it is inaccurate or it is
 being maintained in a manner inconsistent with this title.
   (ii)  Upon  receipt  of a request to amend the record of a child abuse
 and maltreatment report the office of children and family services shall
 immediately send a written request to the child  protective  service  or
 the state agency which was responsible for investigating the allegations
 of  abuse or maltreatment for all records, reports and other information
 maintained by the service or state agency pertaining to  such  indicated
 report.  The  service or state agency shall as expeditiously as possible
 but within no more than twenty working days of receiving  such  request,
 forward  all records, reports and other information it maintains on such
 indicated report to the office of children and family services,  INCLUD-
 ING  A COPY OF ANY PETITION OR COURT ORDER BASED ON THE ALLEGATIONS THAT
 WERE INDICATED. [The] UNLESS SUCH REQUEST TO AMEND HAS BEEN STAYED,  THE
 office  of children and family services shall as expeditiously as possi-
 ble but within no more than fifteen working days of receiving such mate-
 rials from the child protective service or state agency, review all such
 materials in its possession concerning the indicated report  and  deter-
 mine, after affording such service or state agency a reasonable opportu-
 nity  to present its views, whether there is a fair preponderance of the
 evidence to find that the subject committed the act  or  acts  of  child
 abuse  or  maltreatment giving rise to the indicated report and whether,
 based on guidelines developed by  the  office  of  children  and  family
 services  pursuant  to  subdivision five of section four hundred twenty-
 four-a of this title, such act or acts could be relevant and  reasonably
 related to employment of the subject of the report by a provider agency,
 as defined by subdivision three of section four hundred twenty-four-a of
 this  title,  or  relevant  and reasonably related to the subject of the
 report being allowed to have regular and substantial contact with  chil-
 dren  who are cared for by a provider agency, or relevant and reasonably
 related to the approval or disapproval of an  application  submitted  by
 the  subject of the report to a licensing agency, as defined by subdivi-
 sion four of section four hundred twenty-four-a of this title.
   (iii) If it is determined at the review held pursuant  to  this  para-
 graph (a) that there is [no credible] NOT A PREPONDERANCE OF evidence in
 the  record  to  find that the subject committed an act or acts of child
 abuse or maltreatment, the [department] OFFICE OF  CHILDREN  AND  FAMILY
 SERVICES  shall  amend  the  record  to  indicate  that  the  report  is
 "unfounded" and notify the subject forthwith.

 S. 5526                             3
 
   (iv) If it is determined at the review held pursuant to this paragraph
 (a) that there is [some credible] A PREPONDERANCE  OF  evidence  in  the
 record to find that the subject committed such act or acts but that such
 act  or acts could not be relevant and reasonably related to the employ-
 ment of the subject by a provider agency or to the subject being allowed
 to  have regular and substantial contact with children who are cared for
 by a provider agency or the approval or disapproval  of  an  application
 which  could  be  submitted  by  the  subject to a licensing agency, the
 [department] OFFICE OF CHILDREN AND FAMILY SERVICES shall  be  precluded
 from  informing a provider or licensing agency which makes an inquiry to
 [the department] SUCH OFFICE pursuant to the provisions of section  four
 hundred  twenty-four-a  of  this  title  concerning the subject that the
 person about whom the inquiry is made is the  subject  of  an  indicated
 report  of child abuse or maltreatment. The [department] OFFICE OF CHIL-
 DREN AND FAMILY SERVICES shall  notify  forthwith  the  subject  of  the
 report of such determinations and that a fair hearing has been scheduled
 pursuant  to  paragraph  (b) of this subdivision. The sole issue at such
 hearing shall be whether the subject has been shown by [some credible] A
 PREPONDERANCE OF evidence to have committed the act  or  acts  of  child
 abuse or maltreatment giving rise to the indicated report.
   (v)  If it is determined at the review held pursuant to this paragraph
 (a) that there is [some credible] A PREPONDERANCE  OF  evidence  in  the
 record to prove that the subject committed an act or acts of child abuse
 or  maltreatment and that such act or acts could be relevant and reason-
 ably related to the employment of the subject by a provider agency or to
 the subject being allowed to have regular and substantial  contact  with
 children  cared  for by a provider agency or the approval or disapproval
 of an application which could be submitted by the subject to a licensing
 agency, the [department] OFFICE OF CHILDREN AND  FAMILY  SERVICES  shall
 notify  forthwith  the  subject of the report of such determinations and
 that a fair hearing has been scheduled pursuant to paragraph (b) of this
 subdivision.
   § 3. Subparagraphs (i) and (ii) of paragraph (b) of subdivision  8  of
 section  422 of the social services law, as amended by chapter 12 of the
 laws of 1996, are amended to read as follows:
   (i) If the [department] OFFICE OF CHILDREN AND FAMILY SERVICES, within
 ninety days of receiving a request from the subject that the record of a
 report be amended, does not amend the record  in  accordance  with  such
 request,  [the department] SUCH OFFICE shall schedule a fair hearing and
 shall provide notice of the scheduled hearing date to the  subject,  the
 statewide  central register and, as appropriate, to the child protective
 service or the state agency which investigated the report.
   (ii) The burden of proof in such a  hearing  shall  be  on  the  child
 protective service or the state agency which investigated the report, as
 the  case  may  be.  In  such a hearing, the fact that there is a family
 court finding of abuse or neglect against the subject in  regard  to  an
 allegation contained in the report shall create an irrebuttable presump-
 tion  that said allegation is substantiated by [some credible] A PREPON-
 DERANCE OF evidence.   WHERE THE  PETITIONING  CHILD  PROTECTIVE  AGENCY
 WITHDRAWS  WITH PREJUDICE AN ALLEGATION IN A PETITION, OR A FAMILY COURT
 FINDS ON THE MERITS THAT AN ALLEGATION  DOES  NOT  CONSTITUTE  ABUSE  OR
 NEGLECT  UNDER THE LAWS OF THE STATE OF NEW YORK OR WAS NOT SUPPORTED BY
 A PREPONDERANCE OF THE EVIDENCE,  THE  OFFICE  OF  CHILDREN  AND  FAMILY
 SERVICES SHALL AMEND SUCH ALLEGATION TO BE UNFOUNDED.
   §  4.  Subparagraphs (i) and (ii) of paragraph (c) of subdivision 8 of
 section 422 of the social services law, as amended by chapter 12 of  the

 S. 5526                             4
 
 laws  of 1996, and the opening paragraph of subparagraph (ii) as amended
 by chapter 323 of the laws of 2008, are amended to read as follows:
   (i)  If  it is determined at the fair hearing that there is [no credi-
 ble] NOT A PREPONDERANCE OF evidence in the  record  to  find  that  the
 subject  committed  an  act  or acts of child abuse or maltreatment, the
 [department] OFFICE OF CHILDREN AND  FAMILY  SERVICES  shall  amend  the
 record  to  reflect  that  such a finding was made at the administrative
 hearing, order any child protective service or state agency which inves-
 tigated the report to similarly amend its records  of  the  report,  and
 shall notify the subject forthwith of the determination.
   (ii)  Upon  a  determination  made at a fair hearing [held on or after
 January first, nineteen hundred eighty-six] scheduled  pursuant  to  the
 provisions of subparagraph (v) of paragraph (a) of this subdivision that
 the  subject  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, the hearing officer shall determine, based
 on  guidelines  developed  by the office of children and family services
 pursuant to subdivision five of section four  hundred  twenty-four-a  of
 this title, whether such act or acts are relevant and reasonably related
 to  employment of the subject by a provider agency, as defined by subdi-
 vision three of section four hundred twenty-four-a  of  this  title,  or
 relevant  and  reasonably  related  to the subject being allowed to have
 regular and substantial contact with children who are  cared  for  by  a
 provider  agency  or  relevant and reasonably related to the approval or
 disapproval of an application submitted by the subject  to  a  licensing
 agency,  as  defined by subdivision four of section four hundred twenty-
 four-a of this title.
   Upon a determination made at a fair hearing that the act  or  acts  of
 abuse  or maltreatment are relevant and reasonably related to employment
 of the subject by a provider agency or the subject being allowed to have
 regular and substantial contact with children who are  cared  for  by  a
 provider agency or the approval or denial of an application submitted by
 the  subject  to a licensing agency, the [department] OFFICE OF CHILDREN
 AND FAMILY SERVICES shall notify the subject forthwith. The [department]
 OFFICE OF CHILDREN AND  FAMILY  SERVICES  shall  inform  a  provider  or
 licensing  agency which makes an inquiry to [the department] SUCH OFFICE
 pursuant to the provisions of section four hundred twenty-four-a of this
 title concerning the subject that the person about whom the  inquiry  is
 made is the subject of an indicated child abuse or maltreatment report.
   The  failure  to determine at the fair hearing that the act or acts of
 abuse and maltreatment  are  relevant  and  reasonably  related  to  the
 employment  of  the subject by a provider agency or to the subject being
 allowed to have regular and substantial contact with  children  who  are
 cared  for by a provider agency or the approval or denial of an applica-
 tion submitted by the subject to a licensing agency shall  preclude  the
 [department]  OFFICE  OF  CHILDREN  AND FAMILY SERVICES from informing a
 provider or licensing agency which makes an inquiry to [the  department]
 SUCH  OFFICE  pursuant to the provisions of section four hundred twenty-
 four-a of this title concerning the subject that the person  about  whom
 the  inquiry  is  made  is  the  subject  of an indicated child abuse or
 maltreatment report.
   § 5. Paragraph (e) of subdivision 8  of  section  422  of  the  social
 services  law, as added by chapter 12 of the laws of 1996, is amended to
 read as follows:
   (e) Should the [department] OFFICE OF  CHILDREN  AND  FAMILY  SERVICES
 grant the request of the subject of the report pursuant to this subdivi-

 S. 5526                             5
 
 sion either through an administrative review or fair hearing to amend an
 indicated  report  to  an unfounded report[. Such], SUCH report shall be
 legally sealed and shall be released and expunged in accordance with the
 standards set forth in subdivision five of this section.
   §  6.  Subparagraphs (ii), (iii), and (v) of paragraph (e) of subdivi-
 sion 1 of section 424-a of the social services law,  subparagraphs  (ii)
 and (iii) as amended by chapter 12 of the laws of 1996, and subparagraph
 (v) as amended by chapter 634 of the laws of 1988, are amended and 6 new
 subparagraphs  (vi), (vii), (viii), (ix), (x) and (xi) are added to read
 as follows:
   (ii) If the subject of an indicated report of child abuse or maltreat-
 ment has not requested an amendment of the record of the  report  within
 the  time specified in subdivision eight of section four hundred twenty-
 two of this title [or if the subject had a fair hearing pursuant to such
 section prior to January first,  nineteen  hundred  eighty-six]  and  an
 inquiry  is  made  to  the  [department]  OFFICE  OF CHILDREN AND FAMILY
 SERVICES pursuant to this subdivision  concerning  the  subject  of  the
 report, [the department] SUCH OFFICE shall, as expeditiously as possible
 but  within  no  more  than  ten working days of receipt of the inquiry,
 determine whether, in fact, the person about whom an inquiry is made  is
 the subject of an indicated report. Upon making a determination that the
 person  about  whom  the  inquiry is made is the subject of an indicated
 report of child abuse and maltreatment, the [department] OFFICE OF CHIL-
 DREN AND FAMILY SERVICES shall immediately send a written request to the
 child protective service or  state  agency  which  was  responsible  for
 investigating  the allegations of abuse or maltreatment for all records,
 reports and other information maintained by the service or state  agency
 on  the  subject. The service or state agency shall, as expeditiously as
 possible but within no more than twenty working days of  receiving  such
 request, forward all records, reports and other information it maintains
 on the indicated report to the [department] OFFICE OF CHILDREN AND FAMI-
 LY  SERVICES,  INCLUDING  A COPY OF ANY PETITION OR COURT ORDER BASED ON
 THE ALLEGATIONS THAT WERE INDICATED.  [The department] WHERE A  PROCEED-
 ING  PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT IS PENDING BASED ON
 THE SAME ALLEGATIONS THAT WERE INDICATED, THE  OFFICE  OF  CHILDREN  AND
 FAMILY  SERVICES SHALL DEFER DETERMINATION OF WHETHER THERE IS A PREPON-
 DERANCE OF THE EVIDENCE TO SUPPORT THE INDICATION UNTIL THE  DISPOSITION
 OF  SUCH  FAMILY  COURT  PROCEEDING  OR  THE CONCLUSION OF ANY PERIOD OF
 ADJOURNMENT IN CONTEMPLATION OF DISMISSAL, WHICHEVER  IS  LATER.  UNLESS
 SUCH  DETERMINATION HAS BEEN DEFERRED, THE OFFICE OF CHILDREN AND FAMILY
 SERVICES shall, within fifteen working days of receiving  such  records,
 reports and other information from the child protective service or state
 agency,  review  all  records,  reports  and  other  information  in its
 possession concerning the subject and determine whether there  is  [some
 credible]  A  PREPONDERANCE  OF  evidence  to  find that the subject had
 committed the act or acts of child abuse or maltreatment giving rise  to
 the indicated report.
   (iii) If it is determined, after affording such service or state agen-
 cy  a  reasonable  opportunity  to  present its views, that there is [no
 credible] NOT A PREPONDERANCE OF evidence in the record to find that the
 subject committed such act or acts, the [department] OFFICE OF  CHILDREN
 AND  FAMILY  SERVICES shall amend the record to indicate that the report
 was unfounded and notify the inquiring party that the person about  whom
 the  inquiry  is made is not the subject of an indicated report. [If the
 subject of the report had a fair hearing pursuant to  subdivision  eight
 of section four hundred twenty-two of this title prior to January first,

 S. 5526                             6

 nineteen hundred eighty-six and the fair hearing had been finally deter-
 mined  by  the  commissioner  and  the record of the report had not been
 amended to unfound the report or delete the person as a subject  of  the
 report,  then the department shall determine that there is some credible
 evidence to find that the subject had committed the act or acts of child
 abuse or maltreatment giving rise to the indicated report.]
   (v) If it is determined after a review by the [department]  OFFICE  OF
 CHILDREN  AND FAMILY SERVICES of all records, reports and information in
 its possession concerning the subject of the report that there is  [some
 credible]  A PREPONDERANCE OF evidence to prove that the subject commit-
 ted the act or acts of abuse or maltreatment giving rise  to  the  indi-
 cated  report  [and  that  such  act or acts are relevant and reasonably
 related to issues concerning the employment of the subject by a provider
 agency or to the subject being allowed to have regular  and  substantial
 contact  with children cared for by a provider agency or the approval or
 disapproval of an application which has been submitted by the subject to
 a licensing agency, the department shall inform the inquiring party that
 the person about whom the inquiry is made is the subject of an indicated
 report of child abuse and maltreatment; the department shall also notify
 the subject of the inquiry of his or her  fair  hearing  rights  granted
 pursuant  to  paragraph  (c)  of  subdivision two of this section] , THE
 OFFICE OF CHILDREN AND FAMILY SERVICES SHALL NOTIFY THE SUBJECT  OF  THE
 DETERMINATION  OF  SUCH  REPORT  AND OF THE SUBJECT'S RIGHT TO REQUEST A
 FAIR HEARING WITHIN NINETY DAYS. IF THE SUBJECT SHALL REQUEST A  HEARING
 WITHIN  NINETY  DAYS,  THE  OFFICE OF CHILDREN AND FAMILY SERVICES SHALL
 SCHEDULE A FAIR HEARING AND SHALL PROVIDE NOTICE OF THE SCHEDULED  HEAR-
 ING  DATE  TO THE SUBJECT, THE STATEWIDE CENTRAL REGISTER AND, AS APPRO-
 PRIATE, TO THE CHILD PROTECTIVE SERVICE OR STATE AGENCY  WHICH  INVESTI-
 GATED SUCH REPORT.
   (VI)  THE  BURDEN  OF  PROOF  IN  SUCH A HEARING SHALL BE ON THE CHILD
 PROTECTIVE SERVICE OR STATE AGENCY WHICH  INVESTIGATED  THE  REPORT.  IN
 SUCH  A  HEARING, THE FACT THAT THERE IS A FAMILY COURT FINDING OF ABUSE
 OR NEGLECT AGAINST THE SUBJECT IN REGARD TO AN ALLEGATION  CONTAINED  IN
 SUCH  REPORT  SHALL CREATE AN IRREBUTTABLE PRESUMPTION THAT SAID ALLEGA-
 TION IS SUBSTANTIATED BY A PREPONDERANCE OF EVIDENCE.  WHERE  THE  PETI-
 TIONING  CHILD  PROTECTIVE AGENCY WITHDRAWS WITH PREJUDICE AN ALLEGATION
 IN A PETITION, OR A FAMILY COURT FINDS ON THE MERITS THAT AN  ALLEGATION
 DOES  NOT CONSTITUTE ABUSE OR NEGLECT UNDER THE LAWS OF THE STATE OF NEW
 YORK OR WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, THE OFFICE
 OF CHILDREN AND FAMILY  SERVICES  SHALL  AMEND  THAT  ALLEGATION  TO  BE
 UNFOUNDED.
   (VII)  IF  IT SHALL BE DETERMINED AT THE FAIR HEARING THAT THERE IS NO
 PREPONDERANCE OF EVIDENCE IN THE RECORD TO FIND THAT THE SUBJECT COMMIT-
 TED AN ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT, THE OFFICE  OF  CHIL-
 DREN  AND  FAMILY SERVICES SHALL AMEND THE RECORD TO REFLECT THAT SUCH A
 FINDING WAS MADE AT THE ADMINISTRATIVE HEARING, ORDER ANY CHILD  PROTEC-
 TIVE  SERVICE OR STATE AGENCY WHICH INVESTIGATED THE REPORT TO SIMILARLY
 AMEND ITS RECORDS OF SUCH REPORT, NOTIFY THE  SUBJECT  OF  THE  DETERMI-
 NATION,  AND  NOTIFY THE INQUIRING PARTY THAT THE PERSON ABOUT WHOM SUCH
 INQUIRY WAS MADE IS NOT THE SUBJECT OF AN INDICATED REPORT.
   (VIII) UPON A DETERMINATION AT THE FAIR HEARING THAT THE  SUBJECT  HAS
 BEEN  SHOWN,  BY  A PREPONDERANCE OF THE EVIDENCE, TO HAVE COMMITTED THE
 ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT GIVING RISE TO THE  INDICATED
 REPORT,  THE HEARING OFFICER SHALL DETERMINE, BASED ON GUIDELINES DEVEL-
 OPED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES PURSUANT TO  SUBDIVI-
 SION  FIVE  OF  THIS  SECTION, WHETHER SUCH ACT OR ACTS ARE RELEVANT AND

 S. 5526                             7
 
 REASONABLY RELATED TO THE SUBJECT BEING  ALLOWED  TO  HAVE  REGULAR  AND
 SUBSTANTIAL  CONTACT WITH CHILDREN WHO ARE CARED FOR BY A PROVIDER AGEN-
 CY, OR RELEVANT AND REASONABLY RELATED TO THE APPROVAL OR DISAPPROVAL OF
 AN APPLICATION SUBMITTED BY THE SUBJECT TO A LICENSING AGENCY.
   (IX)  UPON A DETERMINATION MADE AT A FAIR HEARING THAT THE ACT OR ACTS
 OF ABUSE OR MALTREATMENT ARE RELEVANT  AND  REASONABLY  RELATED  TO  THE
 EMPLOYMENT  OF  THE  SUBJECT  BY  A  PROVIDER  AGENCY, THE SUBJECT BEING
 ALLOWED TO HAVE REGULAR AND SUBSTANTIAL CONTACT WITH  CHILDREN  WHO  ARE
 CARED  FOR BY A PROVIDER AGENCY OR THE APPROVAL OR DENIAL OF AN APPLICA-
 TION SUBMITTED BY THE SUBJECT TO A LICENSING AGENCY, THE OFFICE OF CHIL-
 DREN AND FAMILY SERVICES SHALL NOTIFY THE SUBJECT AND SHALL  INFORM  THE
 INQUIRING  PARTY THAT THE PERSON ABOUT WHOM SUCH INQUIRY WAS MADE IS THE
 SUBJECT OF AN INDICATED REPORT OF CHILD ABUSE OR MALTREATMENT.
   (X) THE FAILURE TO DETERMINE AT THE FAIR HEARING THAT THE ACT OR  ACTS
 OF  ABUSE  AND  MALTREATMENT  ARE RELEVANT AND REASONABLY RELATED TO THE
 EMPLOYMENT OF THE SUBJECT  BY  A  PROVIDER  AGENCY,  THE  SUBJECT  BEING
 ALLOWED  TO  HAVE  REGULAR AND SUBSTANTIAL CONTACT WITH CHILDREN WHO ARE
 CARED FOR BY A PROVIDER AGENCY OR THE APPROVAL OR DENIAL OF AN  APPLICA-
 TION  SUBMITTED  BY THE SUBJECT TO A LICENSING AGENCY SHALL PRECLUDE THE
 OFFICE OF CHILDREN AND FAMILY SERVICES  FROM  INFORMING  A  PROVIDER  OR
 LICENSING  AGENCY THAT SUCH PERSON IS THE SUBJECT OF AN INDICATED REPORT
 OF CHILD ABUSE OR MALTREATMENT.
   (XI) SHOULD THE OFFICE OF  CHILDREN  AND  FAMILY  SERVICES  GRANT  THE
 REQUEST  OF  THE  SUBJECT  OF  THE  REPORT PURSUANT TO THIS SUBDIVISION,
 EITHER THROUGH AN ADMINISTRATIVE REVIEW OR FAIR  HEARING,  TO  AMEND  AN
 INDICATED  REPORT  TO  AN UNFOUNDED REPORT, SUCH REPORT SHALL BE LEGALLY
 SEALED AND SHALL BE RELEASED AND EXPUNGED IN ACCORDANCE WITH THE  STAND-
 ARDS SET FORTH IN SUBDIVISION FIVE OF SECTION FOUR HUNDRED TWENTY-TWO OF
 THIS TITLE.
   §  7. Paragraphs (c), (d) and (e) of subdivision 2 of section 424-a of
 the social services law are REPEALED.
   § 8. Section 1039 of the family court act is amended by adding  a  new
 subdivision (h) to read as follows:
   (H)  THE  PETITIONER  SHALL  NOTIFY  THE OFFICE OF CHILDREN AND FAMILY
 SERVICES, IN ACCORDANCE WITH SECTIONS FOUR HUNDRED TWENTY-TWO  AND  FOUR
 HUNDRED  TWENTY-FOUR-A  OF THE SOCIAL SERVICES LAW, OF THE OUTCOME OF AN
 ADJOURNMENT IN CONTEMPLATION OF  DISMISSAL  PURSUANT  TO  THIS  SECTION,
 INCLUDING  DISMISSAL OF THE PETITION UPON EXPIRATION OF SUCH ADJOURNMENT
 OR, WHERE THE PROCEEDING HAS BEEN  RESTORED  TO  THE  CALENDAR,  OF  THE
 STATUS  AND  DISPOSITION OF ANY PROCEEDINGS UNDER THIS ARTICLE FOLLOWING
 SUCH RESTORATION.
   § 9. Section 1051 of the family court act is amended by adding  a  new
 subdivision (g) to read as follows:
   (G)  THE  PETITIONER  SHALL  NOTIFY  THE OFFICE OF CHILDREN AND FAMILY
 SERVICES, IN ACCORDANCE WITH SECTIONS FOUR HUNDRED TWENTY-TWO  AND  FOUR
 HUNDRED  TWENTY-FOUR-A  OF  THE  SOCIAL SERVICES LAW, OF ANY FINDINGS OF
 ABUSE OR NEGLECT AND OF ANY ORDERS OF DISMISSAL ENTERED PURSUANT TO THIS
 SECTION.
   § 10. Paragraph (iii) of subdivision (f) of section 1051 of the family
 court act, as added by chapter 430 of the laws of 1994,  is  amended  to
 read as follows:
   (iii)  that  the  report  made  to the state central register of child
 abuse and maltreatment upon which the petition is based will  remain  on
 file until ten years after the eighteenth birthday of the youngest child
 named  in  such  report,  that  the  respondent will be unable to obtain
 expungement of such report, THAT IF SUCH REPORT IS FOR MALTREATMENT,  IT

 S. 5526                             8
 
 SHALL  BE LEGALLY SEALED AFTER FIVE YEARS UNLESS A DETERMINATION IS MADE
 TO SEAL IT EARLIER, and that the  existence  of  such  [report]  REPORTS
 WHICH  ARE  NOT  SEALED may be made known to employers seeking to screen
 employee  applicants [in the field of child care,] FOR POSITIONS INVOLV-
 ING POTENTIAL CONTACT WITH CHILDREN, AND  THAT  SEALED  REPORTS  MAY  BE
 AVAILABLE  TO  CHILD  PROTECTIVE SERVICES AND LAW ENFORCEMENT CONDUCTING
 SUBSEQUENT INVESTIGATIONS and to [child care] AUTHORIZED agencies if the
 respondent applies to become a foster parent [or],  adoptive  parent  OR
 SEEKS CUSTODY OF OR VISITATION WITH A CHILD.
   Any finding upon such an admission or consent made without such notice
 being  given  by the court shall be vacated upon motion of any party. In
 no event shall a person other than the respondent, either in  person  or
 in  writing,  make  an  admission  or consent to a finding of neglect or
 abuse.
   § 11. This act shall take effect immediately; provided, however,  that
 sections  one, three, and eight of this act shall take effect on the one
 hundred eightieth day after it shall have become a law; and section  two
 of  this  act shall take effect on the thirtieth day after it shall have
 become a law.

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Senate Bill S5526

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Velmanette Montgomery