Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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Dec 13, 2019 |
vetoed memo.232 |
Dec 06, 2019 |
delivered to governor |
Jun 20, 2019 |
returned to senate passed assembly ordered to third reading rules cal.608 substituted for a8060a |
Jun 18, 2019 |
referred to ways and means delivered to assembly passed senate ordered to third reading cal.1531 |
Jun 14, 2019 |
print number 6427a |
Jun 14, 2019 |
amend and recommit to rules |
Jun 10, 2019 |
referred to rules |
Senate Bill S6427A
Vetoed By Governor2019-2020 Legislative Session
Relates to the standards of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment
download bill text pdfSponsored By
(D) Senate District
Archive: Last Bill Status - Vetoed by Governor
- Introduced
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- In Committee Assembly
- In Committee Senate
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- On Floor Calendar Assembly
- On Floor Calendar Senate
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- Passed Assembly
- Passed Senate
- Vetoed By Governor
- Signed By Governor
Actions
Votes
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Floor Vote: Jun 18, 2019
aye (44)- Addabbo Jr.
- Akshar
- Bailey
- Benjamin
- Biaggi
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- Felder
- Funke
- Gallivan
- Gaughran
- Gianaris
- Gounardes
- Harckham
- Hoylman-Sigal
- Jackson
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Little
- Liu
- May
- Mayer
- Metzger
- Montgomery
- Myrie
- Parker
- Persaud
- Ramos
- Rivera
- Robach
- Salazar
- Sanders Jr.
- Savino
- Sepúlveda
- Serrano
- Stavisky
- Stewart-Cousins
- Thomas
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Jun 18, 2019 - Rules Committee Vote
S6427A15Aye3Nay1Aye with Reservations0Absent0Excused0Abstained -
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Bill Amendments
2019-S6427 - Details
- See Assembly Version of this Bill:
- A8060
- Law Section:
- Social Services Law
- Laws Affected:
- Amd §§412, 421, 422 & 424-a, Soc Serv L; amd §§651-a & 1051, Fam Ct Act
2019-S6427 - Summary
Relates to the standards of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment and requires a fair preponderance of evidence of the alleged report; relates to the administration of the statewide central register of child abuse and maltreatment; makes related provisions.
2019-S6427 - Sponsor Memo
BILL NUMBER: S6427 SPONSOR: MONTGOMERY TITLE OF BILL: An act to amend the social services law, in relation to the standard of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment; and 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 PURPOSE: This bill would make certain changes to State Central Registry as it relates to sealing of maltreatment records and standard of proof to determine indicated and unfounded reports of abuse or maltreatment. This bill also updates fair hearing rights as it relates to employment for subjects of maltreatment reports. SUMMARY OF PROVISIONS: Section 1 of the bill updates definitions of unfounded and indicated
reports, changing the investigative standard of review from "some credi- ble evidence" to "fair preponderance of evidence." Section 2 amends section 651-a of the family court act requiring a fair preponderance of the evidence standard to determine a finding of abuse or neglect. Sections 3, 4, and 5 make conforming changes to of Social Services Law changing the standard of review from "some credible evidence" to "fair preponderance of the evidence." Section 6 allows SCR reports of indicated maltreatment cases be condi- tionally sealed after eight years so long as there are no subsequent indicated reports of abuse or maltreatment. Reports may be immediately unsealed if there is a subsequent finding of abuse or maltreatment. Reports will be maintained by the SCR but will not be disclosed to employers with certain exceptions for employment requiring significant and substantial contact with children. Section 7 eliminates specified timeframe for amending report; if pending CPS proceeding on same allegations, request to amend stayed until Family Court disposition of the proceeding or if petition dismissed at conclu- sion of ACD or suspended judgment, whichever is later. Section 8 requires OCFS to amend allegation as unfounded when CPS with- draws with prejudice an allegation in a petition, Family Court finds allegation does not constitute abuse or maltreatment, or petition dismissed at conclusion of ACD or suspended judgment, or not supported by a fair preponderance of evidence. Section 9 makes conforming changes updating the standard of evidence. Section 10 makes conforming changes updating the language of "depart- ment" to "Office of Children and Family Services." Section 11 makes changes to the fair hearing rights relating to denial of employment based SCR reports. Conforming changes are made to update the standard of review for SCR fair hearings to comport with modern constitutional requirements. Section 12 requires the petitioner to notify OCFS regarding the outcome of an adjournment in contemplation of dismissal. Section 13 requires the petitioner to notify OCFS of any findings of abuse or neglect or orders of dismissal. Section 14 requires maltreatment reports to be conditionally sealed after eight years. Section 15 requires the petitioner to notify OCFS regarding the outcome of a suspended judgement. Section 16 provides an effective date. JUSTIFICATION: The vast majority of allegations made to the SCR involve poverty-related neglect and 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. This legislation 'makes necessary conforming changes in line with constitutional requirements regarding the standard of review from " some credible evidence" to "preponderance of the evidence." Doyle v. Camelot Care Ctrs., Inc., 160 F. Supp. 2d 891: Similarly, the New York statutory scheme at issue in Valmonte v. Bane, 18 F.3d 992, 1004 (2nd Cir. 1994), directed that the names of persons indicated of abuse under merely a "credible evidence" standard be placed on the State Central Register. The Second Circuit concluded that practice a violated those individuals' right to due process. Instead, the court found that individuals should be placed on such a list only after they had been found guilty of abuse by a "preponderance of the evidence." Id. In Lee TT, 87 N.Y.2d at 700, the Court of Appeals of New York, following the Second Circuit, found that, while there is no constitutional prohibition against the State maintaining a list of suspected **47 abusers, the use of the "credible evidence" standard to substanti- ate reports that are put on the State Central Register violates the protected liberty interest plaintiffs had in their present and future employment in the child care field. The court therefore held that the credible evidence standard is permissible at the investigative stage, but a report of abuse must be substantiated by a preponderance of the evidence before information concerning the subject may be disseminated to employers in child care agencies. Id. at 703, 711. New York is overdue to update antiquated Social Services Law to limit collateral consequences for parents, streamline court processes to make the system more efficient and fair. Many employers are required to do SCR background checks before hiring. These include not only childcare and educational providers, but a variety of entities providing services such as healthcare and transportation if they serve children as well as adults. Consequently, an indicated report on the SCR severely limits a person's ability to secure employment. This bill supports increased access to employment for thousands of New York families every year at limited cost to the state. LEGISLATIVE HISTORY: This is new legislation. FISCAL IMPLICATIONS: To be determined. EFFECTIVE DATE: Immediately.
2019-S6427 - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 6427 2019-2020 Regular Sessions I N S E N A T E June 10, 2019 ___________ Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the social services law, in relation to the standard of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment; and 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 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 6 and 7 of section 412 of the social services law, as added by chapter 1039 of the laws of 1973 and as renumbered by chapter 323 of the laws of 2008, are amended to read as follows: 6. An "unfounded report" means any report made pursuant to this title unless an investigation determines that [some credible evidence] A FAIR PREPONDERANCE OF EVIDENCE of the alleged abuse or maltreatment exists; 7. An "indicated report" means a report made pursuant to this title if an investigation determines that [some credible evidence] A FAIR PREPON- DERANCE OF EVIDENCE of the alleged abuse or maltreatment exists. § 2. Section 651-a of the family court act, as amended by chapter 12 of the laws of 1996, is amended to read as follows: § 651-a. Reports of child abuse and maltreatment; admissibility. In any proceeding brought pursuant to this section to determine the custody or visitation of minors, a report made to the statewide central register of child abuse and maltreatment, pursuant to title six of article six of the social services law, or a portion thereof, which is otherwise admis- sible as a business record pursuant to rule forty-five hundred eighteen of the civil practice law and rules shall not be admissible in evidence, notwithstanding such rule, unless an investigation of such report conducted pursuant to title six of article six of the social services law has determined that there is [some credible] A FAIR PREPONDERANCE OF EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD13104-01-9 S. 6427 2 evidence of the alleged abuse or maltreatment, that the subject of the report has been notified that the report is indicated. In addition, if such report has been reviewed by the state commissioner of social services or his designee and has been determined to be unfounded, it shall not be admissible in evidence. If such report has been so reviewed and has been amended to delete any finding, each such deleted finding shall not be admissible. If the state commissioner of social services or his designee has amended the report to add any new finding, each such new finding, together with any portion of the original report not deleted by the commissioner or his designee, shall be admissible if it meets the other requirements of this section and is otherwise admissible as a business record. If such a report, or portion thereof, is admissi- ble in evidence but is uncorroborated, it shall not be sufficient to make a fact finding of abuse or maltreatment in such proceeding. Any other evidence tending to support the reliability of such report shall be sufficient corroboration. § 3. Paragraph (c) of subdivision 2 of section 421 of the social services law, as amended by chapter 718 of the laws of 1986, is amended to read as follows: (c) issue guidelines to assist local child protective services in the interpretation and assessment of reports of abuse and maltreatment made to the statewide central register described in section four hundred twenty-two of this article. Such guidelines shall include information, standards and criteria for the identification of [credible] FAIR PREPON- DERANCE OF evidence of alleged abuse and maltreatment required to deter- mine whether a report may be indicated. § 4. The opening paragraph of paragraph (a) of subdivision 5 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: Unless an investigation of a report conducted pursuant to this title determines that there is [some credible] A FAIR PREPONDERANCE OF evidence of the alleged abuse or maltreatment, all information identify- ing the subjects of the report and other persons named in the report shall be legally sealed forthwith by the central register and any local child protective services or the state agency which investigated the report. Such unfounded reports may only be unsealed and made available: § 5. 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] A FAIR PREPONDERANCE OF evidence supporting the allegation of abuse or maltreatment shall not be the sole basis to expunge the report. 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 review- ing 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. 6427 3 § 6. 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. PROVIDED HOWEVER, IN CASES WHERE THE REPORT WAS INDICATED FOR MALTREATMENT, THE RECORD OF THE REPORT TO THE STATEWIDE CENTRAL REGISTER SHALL BE CONDITIONALLY SEALED EIGHT YEARS AFTER THE REPORT IS RECEIVED BY THE STATEWIDE CENTRAL REGIS- TER, SO LONG AS THERE ARE NO OTHER INDICATED REPORTS OF ABUSE OR MALTREATMENT WITH SUCH INDIVIDUAL NAMED AS THE SUBJECT OF THE REPORT. PROVIDED, FURTHER, THAT IF SUCH INDIVIDUAL IS NAMED AS THE SUBJECT OF A REPORT IN ANY SUBSEQUENT INDICATED ABUSE OR MALTREATMENT REPORTS, SUCH RECORD SHALL BE IMMEDIATELY UNSEALED. REPORTS CONDITIONALLY SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MAINTAINED IN THE STATEWIDE CENTRAL REGISTER, HOWEVER SUCH REPORTS SHALL NOT BE MADE AVAILABLE EXCEPT TO: (A) ENTITIES INCLUDED IN SUBDIVISION FIVE OF THIS SECTION; (B) HEAD START PROGRAMS WHICH ARE FUNDED PURSUANT TO TITLE V OF THE FEDERAL ECONOMIC OPPORTUNITY ACT OF 1964, EARLY INTERVENTION SERVICES ESTABLISHED PURSUANT TO SECTION TWENTY-FIVE HUNDRED FORTY OF THE PUBLIC HEALTH LAW, PRESCHOOL SERVICES ESTABLISHED PURSUANT TO SECTION FORTY- FOUR HUNDRED TEN OF THE EDUCATION LAW, CHILD DAY CARE PROVIDERS AS DEFINED IN SECTION THREE HUNDRED NINETY OF THIS ARTICLE FOR PURPOSES OF DETERMINING EMPLOYMENT; (C) AUTHORIZED AGENCIES THAT ARE CONSIDERING LICENSING THE SUBJECT OF THE REPORT TO BECOME A FOSTER OR ADOPTIVE PARENT; AND (D) CHILD PROTECTIVE SERVICES THAT ARE CONSIDERING RECOM- MENDING 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. § 7. 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- 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] 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, IF THE PETITION IS DISMISSED AT THE CONCLUSION OF AN ADJOURNMENT IN CONTEM- PLATION OF DISMISSAL OR SUSPENSED JUDGMENT, AT SUCH TIME OF THE DISMISS- AL, WHICHEVER IS LATER. UNLESS SUCH REQUEST HAS BEEN STAYED, IF the commissioner 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 subdivision, 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 S. 6427 4 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 FAIR 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. (iv) If it is determined at the review held pursuant to this paragraph [(a)] that there is [some credible] A FAIR 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 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 disapproval of an application which could be submitted by the subject to a licensing agen- cy, 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 CHILDREN AND FAMILY SERVICES shall notify forthwith the subject of the report of such determinations and that a fair hearing has been sche- duled pursuant to paragraph (b) of this subdivision. The sole issue at such hearing shall be whether the subject has been shown by [some credi- ble] A FAIR 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 FAIR PREPONDERANCE OF evidence in S. 6427 5 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 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 cared for by a provider agency or the approval or disap- proval 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 deter- minations and that a fair hearing has been scheduled pursuant to para- graph (b) of this subdivision. § 8. 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, [with- in ninety days of] UPON 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 FAIR PREPONDERANCE OF evidence. WHERE THE PETITIONING CHILD PROTECTIVE AGEN- CY 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 OR A PETITION HAS BEEN DISMISSED AT THE CONCLUSION OF EITHER AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL OR SUSPENDED JUDGMENT, OR WAS NOT SUPPORTED BY A FAIR PREPONDERANCE OF THE EVIDENCE, THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL AMEND SUCH ALLEGATION TO BE UNFOUNDED. § 9. 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 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 FAIR 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 S. 6427 6 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. § 10. 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- 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. § 11. 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 six 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, S. 6427 7 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 FAIR PREPONDERANCE OF THE EVIDENCE TO SUPPORT THE INDICATION UNTIL THE DISPO- SITION OF SUCH FAMILY COURT PROCEEDING OR IF THE PETITION IS DISMISSED AT THE CONCLUSION OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL OR SUSPENDED JUDGMENT, AT SUCH TIME OF THE 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 FAIR 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 FAIR 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, nineteen hundred eighty-six and the fair hearing had been finally determined 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 FAIR PREPONDERANCE OF evidence to prove that the subject committed the act or acts of abuse or maltreatment giving rise to the indicated 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 S. 6427 8 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 FAIR PREPONDERANCE OF EVIDENCE. WHERE THE PETITIONING CHILD PROTECTIVE AGENCY WITHDRAWS WITH PREJUDICE AN ALLEGA- TION IN A PETITION, OR A FAMILY COURT FINDS ON THE MERITS THAT AN ALLE- GATION DOES NOT CONSTITUTE ABUSE OR NEGLECT OR A PETITION HAS BEEN DISMISSED AT THE CONCLUSION OF EITHER AN ADJOURNMENT IN CONTEMPLATION OF A DISMISSAL OR SUSPENDED JUDGMENT, OR WAS NOT SUPPORTED BY A FAIR 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 FAIR PREPONDERANCE OF EVIDENCE IN THE RECORD TO FIND THAT THE SUBJECT COMMITTED AN ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT, THE 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 INVESTIGATED THE REPORT TO SIMILARLY AMEND ITS RECORDS OF SUCH REPORT, NOTIFY THE SUBJECT OF THE DETERMINATION, 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 FAIR PREPONDERANCE OF THE EVIDENCE, TO HAVE COMMITTED THE ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT GIVING RISE TO THE INDI- CATED REPORT, THE HEARING OFFICER SHALL DETERMINE, BASED ON GUIDELINES DEVELOPED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES PURSUANT TO SUBDIVISION FIVE OF THIS SECTION, WHETHER SUCH ACT OR ACTS ARE RELEVANT AND 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 S. 6427 9 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. § 12. 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. § 13. 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. § 14. 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 SHALL BE LEGALLY CONDITIONALLY SEALED AFTER EIGHT YEARS UNLESS A DETER- MINATION IS MADE TO SEAL IT EARLIER SO LONG AS SUCH INDIVIDUAL IS NOT NAMED AS THE SUBJECT OF THE REPORT IN ANY SUBSEQUENT INDICATED REPORTS OF ABUSE OR MALTREATMENT, 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 INVOLVING 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. § 15. Section 1053 of the family court act is amended by adding a new subdivision (d) to read as follows: S. 6427 10 (D) 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 A SUSPENDED JUDGEMENT PURSUANT TO THIS SECTION, INCLUDING A DISMISSAL OF THE PETITION UPON EXPIRATION OF SUCH SUSPENDED JUDGEMENT, OR WHERE THE PROCEEDING HAS BEEN RESTORED TO THE CALENDAR, OF THE STATUS AND DISPOSI- TION OF ANY PROCEEDINGS UNDER THIS ARTICLE FOLLOWING SUCH RESTORATION. § 16. This act shall take effect immediately; provided, however, that sections six, eight and twelve of this act shall take effect on the one hundred eightieth day after it shall have become a law; and section seven of this act shall take effect on the thirtieth day after it shall have become a law.
co-Sponsors
(D) 16th Senate District
(D) 19th Senate District
2019-S6427A (ACTIVE) - Details
- See Assembly Version of this Bill:
- A8060
- Law Section:
- Social Services Law
- Laws Affected:
- Amd §§412, 421, 422 & 424-a, Soc Serv L; amd §§651-a & 1051, Fam Ct Act
2019-S6427A (ACTIVE) - Summary
Relates to the standards of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment and requires a fair preponderance of evidence of the alleged report; relates to the administration of the statewide central register of child abuse and maltreatment; makes related provisions.
2019-S6427A (ACTIVE) - Sponsor Memo
BILL NUMBER: S6427A SPONSOR: MONTGOMERY TITLE OF BILL: An act to amend the social services law, in relation to the standard of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment; and 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 PURPOSE: This bill would make certain changes to State Central Registry as it relates to sealing of maltreatment records and standard of proof to determine indicated and unfounded reports of abuse or maltreatment. This bill also updates fair hearing rights as it relates to employment for subjects of maltreatment reports. SUMMARY OF PROVISIONS:
Section 1 of the bill updates definitions of unfounded and indicated reports, changing the investigative standard of review from "some credi- ble evidence" to "fair preponderance of evidence." Section 2 amends section 651-a of the family court act requiring a fair preponderance of the evidence standard to determine a finding of abuse or neglect. Sections 3, 4, and 5 make conforming changes to of Social Services Law changing the standard of review from "some credible evidence" to "fair preponderance of the evidence." Section 6 allows SCR reports of indicated maltreatment cases be condi- tionally sealed after eight years so long as there are no subsequent indicated reports of abuse or maltreatment. Reports may be immediately unsealed if there is a subsequent finding of abuse or maltreatment. Reports will be maintained by the SCR but will not be disclosed to employers with certain exceptions for employment requiring significant and substantial contact with children. Section 7 eliminates specified timeframe for amending report; if pending CPS proceeding on same allegations, request to amend stayed until Family Court disposition of the proceeding or if petition dismissed at conclu- sion of ACD or suspended judgment, whichever is later. Section 8 requires OCFS to amend allegation as unfounded when CPS with- draws with prejudice an allegation in a petition, Family Court finds allegation does not constitute abuse or maltreatment, or petition dismissed at conclusion of ACD or suspended judgment, or not supported by a fair preponderance of evidence. Section 9 makes conforming changes updating the standard of evidence. Section 10 makes conforming changes updating the language of "depart- ment" to "Office of Children and Family Services." Section 11 makes changes to the fair hearing rights relating to denial of employment based SCR reports. Conforming changes are made to update the standard of review for SCR fair hearings to comport with modern constitutional requirements. Section 12 requires the petitioner to notify OCFS regarding the outcome of an adjournment in contemplation of dismissal. Section 13 requires the petitioner to notify OCFS of any findings of abuse or neglect or orders of dismissal. Section 14 requires maltreatment reports to be conditionally sealed after eight years. Section 15 requires the petitioner to notify OCFS regarding the outcome of a suspended judgement. Section 16 provides an effective date. JUSTIFICATION: The vast majority of allegations made to the SCR involve poverty-related neglect and 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. This legislation 'makes necessary conforming changes in line with constitutional requirements regarding the standard of review from "some credible evidence" to "preponderance of the evidence." Doyle v. Camelot Care Ctrs., Inc., 160 F. Supp. 2d 891: Similarly, the New York statutory scheme at issue in Valmonte v. Bane, 18 F.3d 992, 1004 (2nd Cir. 1994), directed that the names of persons indicated of abuse under merely a "credible evidence" standard be placed on the State Central Register. The Second Circuit concluded that practice a violated those individuals' right to due process. Instead, the court found that individuals should be placed on such a list only after they had been found guilty of abuse by a "preponderance of the evidence." Id. In Lee TT, 87 N.Y.2d at 700, the Court of Appeals of New York, following the Second Circuit, found that, while there is no constitutional prohibition against the State maintaining a list of suspected abusers, the use of the "credible evidence" standard to substantiate reports that are put on the State Central Register violates the protected liberty interest plaintiffs had in their present and future employment in the child care field. The court therefore held that the credible evidence standard is permissible at the investigative stage, but a report of abuse must be substantiated by a preponderance of the evidence before information concerning the subject may be disseminated to employers in child care agencies. Id. at 703, 711. New York is overdue to update antiquated Social Services Law to limit collateral consequences for parents, streamline court processes to make the system more efficient and fair. Many employers are required to do SCR background checks before hiring. These include not only childcare and educational providers, but a variety of entities providing services such as healthcare and transportation if they serve children as well as adults. Consequently, an indicated report on the SCR severely limits a person's ability to secure employment. This bill supports increased access to employment for thousands of New York families every year at limited cost to the state. LEGISLATIVE HISTORY: This is new legislation. FISCAL IMPLICATIONS: To be determined. EFFECTIVE DATE: This act shall take effect immediately.
2019-S6427A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 6427--A 2019-2020 Regular Sessions I N S E N A T E June 10, 2019 ___________ Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the social services law, in relation to the standard of proof for unfounded and indicated reports of abuse or maltreatment and the admissibility of reports of child abuse and maltreatment; and 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 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 6 and 7 of section 412 of the social services law, as added by chapter 1039 of the laws of 1973 and as renumbered by chapter 323 of the laws of 2008, are amended to read as follows: 6. An "unfounded report" means any report made pursuant to this title unless an investigation determines that [some credible evidence] A FAIR PREPONDERANCE OF EVIDENCE of the alleged abuse or maltreatment exists; 7. An "indicated report" means a report made pursuant to this title if an investigation determines that [some credible evidence] A FAIR PREPON- DERANCE OF EVIDENCE of the alleged abuse or maltreatment exists. § 2. Section 651-a of the family court act, as amended by chapter 12 of the laws of 1996, is amended to read as follows: § 651-a. Reports of child abuse and maltreatment; admissibility. In any proceeding brought pursuant to this section to determine the custody or visitation of minors, a report made to the statewide central register of child abuse and maltreatment, pursuant to title six of article six of the social services law, or a portion thereof, which is otherwise admis- sible as a business record pursuant to rule forty-five hundred eighteen of the civil practice law and rules shall not be admissible in evidence, notwithstanding such rule, unless an investigation of such report EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD13104-04-9 S. 6427--A 2 conducted pursuant to title six of article six of the social services law has determined that there is [some credible] A FAIR PREPONDERANCE OF evidence of the alleged abuse or maltreatment, that the subject of the report has been notified that the report is indicated. In addition, if such report has been reviewed by the state commissioner of social services or his designee and has been determined to be unfounded, it shall not be admissible in evidence. If such report has been so reviewed and has been amended to delete any finding, each such deleted finding shall not be admissible. If the state commissioner of social services or his designee has amended the report to add any new finding, each such new finding, together with any portion of the original report not deleted by the commissioner or his designee, shall be admissible if it meets the other requirements of this section and is otherwise admissible as a business record. If such a report, or portion thereof, is admissi- ble in evidence but is uncorroborated, it shall not be sufficient to make a fact finding of abuse or maltreatment in such proceeding. Any other evidence tending to support the reliability of such report shall be sufficient corroboration. § 3. Paragraph (c) of subdivision 2 of section 421 of the social services law, as amended by chapter 718 of the laws of 1986, is amended to read as follows: (c) issue guidelines to assist local child protective services in the interpretation and assessment of reports of abuse and maltreatment made to the statewide central register described in section four hundred twenty-two of this article. Such guidelines shall include information, standards and criteria for [the identification of credible] ASSESSING WHETHER A FAIR PREPONDERANCE OF evidence of alleged abuse and maltreat- ment EXISTS AS required to determine whether a report may be indicated. § 4. The opening paragraph of paragraph (a) of subdivision 5 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: Unless an investigation of a report conducted pursuant to this title determines that there is [some credible] A FAIR PREPONDERANCE OF evidence of the alleged abuse or maltreatment, all information identify- ing the subjects of the report and other persons named in the report shall be legally sealed forthwith by the central register and any local child protective services or the state agency which investigated the report. Such unfounded reports may only be unsealed and made available: § 5. 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] A FAIR PREPONDERANCE OF evidence supporting the allegation of abuse or maltreatment shall not be the sole basis to expunge the report. 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 review- ing 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. 6427--A 3 § 6. 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. PROVIDED HOWEVER, IN CASES WHERE THE REPORT WAS INDICATED FOR MALTREATMENT, THE RECORD OF THE REPORT TO THE STATEWIDE CENTRAL REGISTER SHALL BE CONDITIONALLY SEALED EIGHT YEARS AFTER THE REPORT IS RECEIVED BY THE STATEWIDE CENTRAL REGIS- TER, SO LONG AS THERE ARE NO OTHER INDICATED REPORTS OF ABUSE OR MALTREATMENT WITH SUCH INDIVIDUAL NAMED AS THE SUBJECT OF THE REPORT. PROVIDED, FURTHER, THAT IF SUCH INDIVIDUAL IS NAMED AS THE SUBJECT OF A REPORT IN ANY SUBSEQUENT INDICATED ABUSE OR MALTREATMENT REPORTS, SUCH RECORD SHALL BE IMMEDIATELY UNSEALED AND THE SUBSEQUENT INDICATED REPORT SHALL BE INELIGIBLE FOR CONDITIONAL SEALING. REPORTS CONDITIONALLY SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MAINTAINED IN THE STATEWIDE CENTRAL REGISTER, HOWEVER SUCH REPORTS SHALL NOT BE MADE AVAILABLE EXCEPT TO: (A) ENTITIES INCLUDED IN PARAGRAPH (A) OF SUBDIVISION FIVE OF THIS SECTION; (B) AUTHORIZED AGENCIES THAT ARE CONSIDERING LICENSING THE SUBJECT OF THE REPORT TO BECOME A FOSTER OR ADOPTIVE PARENT; (C) CHILD PROTECTIVE SERVICES THAT ARE CONSIDERING RECOMMENDING THE SUBJECT OF THE REPORT AS A CUSTODIAL OR VISITATION RESOURCE; (D) HEAD START PROGRAMS WHICH ARE FUNDED PURSUANT TO TITLE V OF THE FEDERAL ECONOMIC OPPORTUNITY ACT OF 1964, EARLY INTERVENTION SERVICES ESTABLISHED PURSUANT TO SECTION TWENTY-FIVE HUNDRED FORTY OF THE PUBLIC HEALTH LAW, PRESCHOOL SERVICES ESTABLISHED PURSUANT TO SECTION FORTY-FOUR HUNDRED TEN OF THE EDUCATION LAW AND CHILD DAY CARE PROVIDERS AS DEFINED IN SECTION THREE HUNDRED NINETY OF THIS ARTICLE FOR THE PURPOSES OF DETERMINING EMPLOYMENT, BUT ONLY FOR AN ADDITIONAL FOUR YEARS AFTER SUCH RECORD IS CONDITIONALLY SEALED; AND (E) THE COURT, UPON RECEIVING A RECOMMENDATION REGARDING A POTENTIAL FOSTER OR ADOPTIVE PARENT OR A CUSTODIAL OR VISITATION RESOURCE FROM A CHILD PROTECTIVE SERVICE IF SUCH RECOMMENDATION WAS BASED IN ANY PART ON THE INDICATED REPORT. 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 eigh- teenth 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. § 7. 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- 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] the subject may request the commissioner to amend the record of the report. [If] AFTER AN INITIAL REQUEST, SUBSEQUENT REQUESTS MAY BE MADE FOR THE PURPOSE OF DETERMINING WHETHER, DUE TO A CHANGE IN THE SUBJECT'S CIRCUMSTANCES, THE INDICATED CASE CONTINUES TO BE RELEVANT AND REASONABLY RELATED PURSUANT TO SUBPAR- AGRAPH (II) OF PARAGRAPH (C) OF THIS SUBDIVISION. SUCH EVALUATION SHALL TAKE PLACE NO MORE THAN BIENNIALLY. WHERE A PROCEEDING PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT BASED ON THE SAME ALLEGATIONS THAT WERE INDICATED IS PENDING, THE REQUEST TO AMEND SHALL BE STAYED UNTIL THE DISPOSITION OF SUCH FAMILY COURT PROCEEDING OR, IF THE PETITION IS DISMISSED AT THE CONCLUSION OF AN ADJOURNMENT IN CONTEMPLATION OF S. 6427--A 4 DISMISSAL OR SUSPENDED JUDGMENT, AT SUCH TIME OF THE DISMISSAL, WHICHEV- ER IS LATER. UNLESS SUCH REQUEST HAS BEEN STAYED, IF the commissioner 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 subdivision, 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 FAIR 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. (iv) If it is determined at the review held pursuant to this paragraph [(a)] that there is [some credible] A FAIR 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 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 disapproval of an application which could be submitted by the subject to a licensing agen- cy, 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 S. 6427--A 5 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 CHILDREN AND FAMILY SERVICES shall notify forthwith the subject of the report of such determinations and that a fair hearing has been sche- duled pursuant to paragraph (b) of this subdivision. The sole issue at such hearing shall be whether the subject has been shown by [some credi- ble] A FAIR 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 FAIR 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 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 cared for by a provider agency or the approval or disap- proval 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 deter- minations and that a fair hearing has been scheduled pursuant to para- graph (b) of this subdivision. § 8. 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, [with- in ninety days of] UPON 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 FAIR PREPONDERANCE OF evidence. WHERE THE PETITIONING CHILD PROTECTIVE AGEN- CY 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 OR WAS NOT SUPPORTED BY A FAIR PREPONDERANCE OF THE EVIDENCE, OR AN ALLEGATION HAS BEEN DISMISSED AT THE CONCLUSION OF EITHER AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL OR SUSPENDED JUDGMENT, IF SUCH ALLEGATION WAS THE SAME AS THE ALLEGATION IN AN INDICATED REPORT, THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL AMEND SUCH INDICATED REPORT TO BE UNFOUNDED. § 9. 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 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 FAIR 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 S. 6427--A 6 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. § 10. 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- 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. § 11. Subparagraphs (i), (ii), (iii), and (v) of paragraph (e) of subdivision 1 of section 424-a of the social services law, subparagraphs (i), (ii) and (iii) as amended by chapter 12 of the laws of 1996, and S. 6427--A 7 subparagraph (v) as amended by chapter 634 of the laws of 1988, are amended and six new subparagraphs (vi), (vii), (viii), (ix), (x) and (xi) are added to read as follows: (i) Subject to the provisions of subparagraph (ii) of this paragraph, the department shall inform the provider or licensing agency, or child care resource and referral programs pursuant to subdivision six of this section whether or not the person is the subject of an indicated child abuse and maltreatment report only if: (a) the time for the subject of the report to request an amendment of the record of the report pursuant to [subdivision eight of section four hundred twenty-two] SUBPARAGRAPH (V) OF THIS PARAGRAPH has expired without any such request having been made; or (b) such request was made within such time and a fair hearing regarding the request has been finally determined by the commissioner and the record of the report has not been amended to unfound the report or delete the person as a subject of the report. (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 STAY DETERMINATION OF WHETHER THERE IS A FAIR PREPONDERANCE OF THE EVIDENCE TO SUPPORT THE INDICATION UNTIL THE DISPO- SITION OF SUCH FAMILY COURT PROCEEDING OR IF THE PETITION IS DISMISSED AT THE CONCLUSION OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL OR SUSPENDED JUDGMENT, AT SUCH TIME OF THE DISMISSAL, WHICHEVER IS LATER. UNLESS SUCH DETERMINATION HAS BEEN STAYED, 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 FAIR 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 FAIR PREPONDERANCE OF evidence in the record to find S. 6427--A 8 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, nineteen hundred eighty-six and the fair hearing had been finally determined 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 FAIR PREPONDERANCE OF evidence to prove that the subject committed the act or acts of abuse or maltreatment giving rise to the indicated 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 FAIR PREPONDERANCE OF EVIDENCE. WHERE THE PETITIONING CHILD PROTECTIVE AGENCY WITHDRAWS WITH PREJUDICE AN ALLEGA- TION IN A PETITION, OR A FAMILY COURT FINDS ON THE MERITS THAT AN ALLE- GATION DOES NOT CONSTITUTE ABUSE OR NEGLECT OR WAS NOT SUPPORTED BY A FAIR PREPONDERANCE OF THE EVIDENCE, OR A PETITION HAS BEEN DISMISSED AT THE CONCLUSION OF EITHER AN ADJOURNMENT IN CONTEMPLATION OF A DISMISSAL OR SUSPENDED JUDGMENT, IF SUCH ALLEGATION WAS AT THE SAME TIME AS THE ALLEGATION IN AN INDICATED REPORT THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL AMEND SUCH INDICATED REPORT TO BE UNFOUNDED. (VII) IF IT SHALL BE DETERMINED AT THE FAIR HEARING THAT THERE IS NO FAIR PREPONDERANCE OF EVIDENCE IN THE RECORD TO FIND THAT THE SUBJECT COMMITTED AN ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT, THE 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 INVESTIGATED THE REPORT TO S. 6427--A 9 SIMILARLY AMEND ITS RECORDS OF SUCH REPORT, NOTIFY THE SUBJECT OF THE DETERMINATION, 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 FAIR PREPONDERANCE OF THE EVIDENCE, TO HAVE COMMITTED THE ACT OR ACTS OF CHILD ABUSE OR MALTREATMENT GIVING RISE TO THE INDI- CATED REPORT, THE HEARING OFFICER SHALL DETERMINE, BASED ON GUIDELINES DEVELOPED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES PURSUANT TO SUBDIVISION FIVE OF THIS SECTION, WHETHER SUCH ACT OR ACTS ARE RELEVANT AND 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. § 12. 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[, and] THAT IF SUCH REPORT IS FOR MALTREAT- MENT, IT SHALL BE LEGALLY CONDITIONALLY SEALED AFTER EIGHT YEARS UNLESS A DETERMINATION IS MADE TO SEAL IT EARLIER SO LONG AS SUCH INDIVIDUAL IS NOT NAMED AS THE SUBJECT OF THE REPORT IN ANY SUBSEQUENT INDICATED REPORTS OF ABUSE OR MALTREATMENT. THE COURT SHALL ALSO INFORM THE RESPONDENT that the existence of such [report] REPORTS WHICH ARE NOT CONDITIONALLY SEALED may be made known to employers seeking to screen employee applicants [in the field of child care, and] FOR POSITIONS INVOLVING POTENTIAL CONTACT WITH CHILDREN, AND THAT CONDITIONALLY SEALED REPORTS MAY BE AVAILABLE TO CHILD PROTECTIVE SERVICES AND LAW ENFORCE- MENT CONDUCTING SUBSEQUENT INVESTIGATIONS, to [child care] AUTHORIZED S. 6427--A 10 agencies if the respondent applies to become a foster parent [or], adop- tive parent OR SEEKS CUSTODY OF OR VISITATION WITH A CHILD, OR FOR AN ADDITIONAL FOUR YEARS AFTER THE RECORD HAS BEEN CONDITIONALLY SEALED, TO HEAD START PROGRAMS WHICH ARE FUNDED PURSUANT TO TITLE V OF THE FEDERAL ECONOMIC OPPORTUNITY ACT OF 1964, EARLY INTERVENTION SERVICES ESTAB- LISHED PURSUANT TO SECTION TWENTY-FIVE HUNDRED FORTY OF THE PUBLIC HEALTH LAW, PRESCHOOL SERVICES ESTABLISHED PURSUANT TO SECTION FORTY- FOUR HUNDRED TEN OF THE EDUCATION LAW AND CHILD CARE PROVIDERS AS DEFINED IN SECTION THREE HUNDRED NINETY OF THE SOCIAL SERVICES LAW, FOR THE PURPOSES OF DETERMINING EMPLOYMENT. 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. § 13. This act shall take effect immediately; provided, however that section one of this act shall take effect on the ninetieth day after it shall have become a law; provided, however, that sections six and eight of this act shall take effect on the one hundred eightieth day after it shall have become a law; and section seven of this act shall take effect on the thirtieth day after it shall have become a law.
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