There is a newer version of the New York Consolidated Laws
2010 New York Code
SOS - Social Services
Article 6 - CHILDREN
Title 6 - (411 - 428) CHILD PROTECTIVE SERVICES
422 - Statewide central register of child abuse and maltreatment.
§ 422. Statewide central register of child abuse and maltreatment. 1.
There shall be established in the office of children and family services
a statewide central register of child abuse and maltreatment reports
made pursuant to this title.
2. (a) The central register shall be capable of receiving telephone
calls alleging child abuse or maltreatment and of immediately
identifying prior reports of child abuse or maltreatment and capable of
monitoring the provision of child protective service twenty-four hours a
day, seven days a week. To effectuate this purpose, but subject to the
provisions of the appropriate local plan for the provision of child
protective services, there shall be a single statewide telephone number
that all persons, whether mandated by the law or not, may use to make
telephone calls alleging child abuse or maltreatment and that all
persons so authorized by this title may use for determining the
existence of prior reports in order to evaluate the condition or
circumstances of a child. In addition to the single statewide telephone
number, there shall be a special unlisted express telephone number and a
telephone facsimile number for use only by persons mandated by law to
make telephone calls, or to transmit telephone facsimile information on
a form provided by the commissioner, alleging child abuse or
maltreatment, and for use by all persons so authorized by this title for
determining the existence of prior reports in order to evaluate the
condition or circumstances of a child. When any allegations contained in
such telephone calls could reasonably constitute a report of child abuse
or maltreatment, such allegations shall be immediately transmitted
orally or electronically by the office of children and family services
to the appropriate local child protective service for investigation. The
inability of the person calling the register to identify the alleged
perpetrator shall, in no circumstance, constitute the sole cause for the
register to reject such allegation or fail to transmit such allegation
for investigation. If the records indicate a previous report concerning
a subject of the report, the child alleged to be abused or maltreated, a
sibling, other children in the household, other persons named in the
report or other pertinent information, the appropriate local child
protective service shall be immediately notified of the fact, except as
provided in subdivision eleven of this section. If the report involves
either (i) an allegation of an abused child described in paragraph (i),
(ii) or (iii) of subdivision (e) of section one thousand twelve of the
family court act or sexual abuse of a child or the death of a child or
(ii) suspected maltreatment which alleges any physical harm when the
report is made by a person required to report pursuant to section four
hundred thirteen of this title within six months of any other two
reports that were indicated, or may still be pending, involving the same
child, sibling, or other children in the household or the subject of the
report, the office of children and family services shall identify the
report as such and note any prior reports when transmitting the report
to the local child protective services for investigation.
(b) Any telephone call made by a person required to report cases of
suspected child abuse or maltreatment pursuant to section four hundred
thirteen of this chapter containing allegations, which if true would
constitute child abuse or maltreatment shall constitute a report and
shall be immediately transmitted orally or electronically by the
department to the appropriate local child protective service for
investigation.
(c) Whenever a telephone call to the statewide central register
described in this section is received by the department, and the
department finds that the person allegedly responsible for abuse or
maltreatment of a child cannot be a subject of a report as defined in
subdivision four of section four hundred twelve of this chapter, but
believes that the alleged acts or circumstances against a child
described in the telephone call may constitute a crime or an immediate
threat to the child's health or safety, the department shall convey by
the most expedient means available the information contained in such
telephone call to the appropriate law enforcement agency, district
attorney or other public official empowered to provide necessary aid or
assistance.
3. The central register shall include but not be limited to the
following information: all the information in the written report; a
record of the final disposition of the report, including services
offered and services accepted; the plan for rehabilitative treatment;
the names and identifying data, dates and circumstances of any person
requesting or receiving information from the register; and any other
information which the commissioner believes might be helpful in the
furtherance of the purposes of this chapter.
4. (A) Reports made pursuant to this title as well as any other
information obtained, reports written or photographs taken concerning
such reports in the possession of the department, local departments, or
the commission on quality of care for the mentally disabled, shall be
confidential and shall only be made available to:
(a) a physician who has before him or her a child whom he or she
reasonably suspects may be abused or maltreated;
(b) a person authorized to place a child in protective custody when
such person has before him or her a child whom he or she reasonably
suspects may be abused or maltreated and such person requires the
information in the record to determine whether to place the child in
protective custody;
(c) a duly authorized agency having the responsibility for the care or
supervision of a child who is reported to the central register of abuse
and maltreatment;
(d) any person who is the subject of the report or other persons named
in the report;
(e) a court, upon a finding that the information in the record is
necessary for the determination of an issue before the court;
(f) a grand jury, upon a finding that the information in the record is
necessary for the determination of charges before the grand jury;
(g) any appropriate state legislative committee responsible for child
protective legislation;
(h) any person engaged in a bona fide research purpose provided,
however, that no information identifying the subjects of the report or
other persons named in the report shall be made available to the
researcher unless it is absolutely essential to the research purpose and
the department gives prior approval;
(i) a provider agency as defined by subdivision three of section four
hundred twenty-four-a of this chapter, or a licensing agency as defined
by subdivision four of section four hundred twenty-four-a of this
chapter, subject to the provisions of such section;
(j) the state commission on quality of care for the mentally disabled
in connection with an investigation being conducted by the commission
pursuant to article forty-five of the mental hygiene law;
(k) a probation service conducting an investigation pursuant to
article three or seven or section six hundred fifty-three of the family
court act where there is reason to suspect the child or the child's
sibling may have been abused or maltreated and such child or sibling,
parent, guardian or other person legally responsible for the child is a
person named in an indicated report of child abuse or maltreatment and
that such information is necessary for the making of a determination or
recommendation to the court; or a probation service regarding a person
about whom it is conducting an investigation pursuant to article three
hundred ninety of the criminal procedure law, or a probation service or
the state division of parole regarding a person to whom the service or
division is providing supervision pursuant to article sixty of the penal
law or section two hundred fifty-nine-a of the executive law, where the
subject of investigation or supervision has been convicted of a felony
under article one hundred twenty, one hundred twenty-five or one hundred
thirty-five of the penal law or any felony or misdemeanor under article
one hundred thirty, two hundred thirty-five, two hundred forty-five, two
hundred sixty or two hundred sixty-three of the penal law, or has been
indicted for any such felony and, as a result, has been convicted of a
crime under the penal law, where the service or division requests the
information upon a certification that such information is necessary to
conduct its investigation, that there is reasonable cause to believe
that the subject of an investigation is the subject of an indicated
report and that there is reasonable cause to believe that such records
are necessary to the investigation by the probation service or the state
division of parole, provided, however, that only indicated reports shall
be furnished pursuant to this subdivision;
(l) a district attorney, an assistant district attorney or
investigator employed in the office of a district attorney, a sworn
officer of the division of state police, of the regional state park
police, of a city police department, or of a county, town or village
police department or county sheriff's office or department when such
official requests such information stating that such information is
necessary to conduct a criminal investigation or criminal prosecution of
a person, that there is reasonable cause to believe that such person is
the subject of a report, and that it is reasonable to believe that due
to the nature of the crime under investigation or prosecution, such
person is the subject of a report, and that it is reasonable to believe
that due to that nature of the crime under investigation or prosecution,
such records may be related to the criminal investigation or
prosecution;
(m) the New York city department of investigation provided however,
that no information identifying the subjects of the report or other
persons named in the report shall be made available to the department of
investigation unless such information is essential to an investigation
within the legal authority of the department of investigation and the
state department of social services gives prior approval;
(n) chief executive officers of authorized agencies, directors of day
care centers and directors of facilities operated or supervised by the
department of education, the division for youth, the office of mental
health or the office of mental retardation and developmental
disabilities, in connection with a disciplinary investigation, action,
or administrative or judicial proceeding instituted by any of such
officers or directors against an employee of any such agency, center or
facility who is the subject of an indicated report when the incident of
abuse or maltreatment contained in the report occurred in the agency,
center, facility or program, and the purpose of such proceeding is to
determine whether the employee should be retained or discharged;
provided, however, a person given access to information pursuant to this
subparagraph (n) shall, notwithstanding any inconsistent provision of
law, be authorized to redisclose such information only if the purpose of
such redisclosure is to initiate or present evidence in a disciplinary,
administrative or judicial proceeding concerning the continued
employment or the terms of employment of an employee of such agency,
center or facility who has been named as a subject of an indicated
report and, in addition, a person or agency given access to information
pursuant to this subparagraph (n) shall also be given information not
otherwise provided concerning the subject of an indicated report where
the commission of an act or acts by such subject has been determined in
proceedings pursuant to article ten of the family court act to
constitute abuse or neglect;
(o) a provider or coordinator of services to which a child protective
service or social services district has referred a child or a child's
family or to whom the child or the child's family have referred
themselves at the request of the child protective service or social
services district, where said child is reported to the register when the
records, reports or other information are necessary to enable the
provider or coordinator to establish and implement a plan of service for
the child or the child's family, or to monitor the provision and
coordination of services and the circumstances of the child and the
child's family, or to directly provide services; provided, however, that
a provider of services may include appropriate health care or school
district personnel, as such terms shall be defined by the department;
provided however, a provider or coordinator of services given access to
information concerning a child pursuant to this subparagraph (o) shall,
notwithstanding any inconsistent provision of law, be authorized to
redisclose such information to other persons or agencies which also
provide services to the child or the child's family only if the
consolidated services plan prepared and approved pursuant to section
thirty-four-a of this chapter describes the agreement that has been or
will be reached between the provider or coordinator of service and the
local district. An agreement entered into pursuant to this subparagraph
shall include the specific agencies and categories of individuals to
whom redisclosure by the provider or coordinator of services is
authorized. Persons or agencies given access to information pursuant to
this subparagraph may exchange such information in order to facilitate
the provision or coordination of services to the child or the child's
family;
(p) a disinterested person making an investigation pursuant to section
one hundred sixteen of the domestic relations law, provided that such
disinterested person shall only make this information available to the
judge before whom the adoption proceeding is pending;
(q) a criminal justice agency conducting an investigation of a missing
child where there is reason to suspect such child or such child's
sibling, parent, guardian or other person legally responsible for such
child is a person named in an indicated report of child abuse or
maltreatment and that such information is needed to further such
investigation;
(r) in relation to a report involving a child in residential care, the
director or operator of the residential facility or program and, as
appropriate, the local social services commissioner or school district
placing the child, the division for youth, the department of education,
the commission on quality of care for the mentally disabled, the office
of mental health, the office of mental retardation and developmental
disabilities, and any attorney appointed to represent the child whose
appointment has been continued by a family court judge during the term
of the placement, subject to the limitations contained in subdivisions
nine and ten of this section and subdivision five of section four
hundred twenty-four-c of this title;
(s) a child protective service of another state when such service
certifies that the records and reports are necessary in order to conduct
a child abuse or maltreatment investigation within its jurisdiction of
the subject of the report and shall be used only for purposes of
conducting such investigation and will not be redisclosed to any other
person or agency;
(t) an attorney for a child, appointed pursuant to the provisions of
section one thousand sixteen of the family court act, at any time such
appointment is in effect, in relation to any report in which the
respondent in the proceeding in which the attorney for a child has been
appointed is the subject or another person named in the report, pursuant
to sections one thousand thirty-nine-a and one thousand fifty-two-a of
the family court act;
(u) a child care resource and referral program subject to the
provisions of subdivision six of section four hundred twenty-four-a of
this title;
(v)(i) officers and employees of the state comptroller or of the city
comptroller of the city of New York, or of the county officer designated
by law or charter to perform the auditing function in any county not
wholly contained within a city, for purposes of a duly authorized
performance audit, provided that such comptroller shall have certified
to the keeper of such records that he or she has instituted procedures
developed in consultation with the department to limit access to
client-identifiable information to persons requiring such information
for purposes of the audit and that appropriate controls and prohibitions
are imposed on the dissemination of client-identifiable information
contained in the conduct of the audit. Information pertaining to the
substance or content of any psychological, psychiatric, therapeutic,
clinical or medical reports, evaluations or like materials or
information pertaining to such child or the child's family shall not be
made available to such officers and employees unless disclosure of such
information is absolutely essential to the specific audit activity and
the department gives prior written approval.
(ii) any failure to maintain the confidentiality of
client-identifiable information shall subject such comptroller or
officer to denial of any further access to records until such time as
the audit agency has reviewed its procedures concerning controls and
prohibitions imposed on the dissemination of such information and has
taken all reasonable and appropriate steps to eliminate such lapses in
maintaining confidentiality to the satisfaction of the office of
children and family services. The office of children and family services
shall establish the grounds for denial of access to records contained
under this section and shall recommend as necessary a plan of
remediation to the audit agency. Except as provided in this section,
nothing in this subparagraph shall be construed as limiting the powers
of such comptroller or officer to access records which he or she is
otherwise authorized to audit or obtain under any other applicable
provision of law. Any person given access to information pursuant to
this subparagraph who releases data or information to persons or
agencies not authorized to receive such information shall be guilty of a
class A misdemeanor;
(w) members of a local or regional fatality review team approved by
the office of children and family services in accordance with section
four hundred twenty-two-b of this title;
(x) members of a local or regional multidisciplinary investigative
team as established pursuant to subdivision six of section four hundred
twenty-three of this title;
(y) members of a citizen review panel as established pursuant to
section three hundred seventy-one-b of this article; provided, however,
members of a citizen review panel shall not disclose to any person or
government official any identifying information which the panel has been
provided and shall not make public other information unless otherwise
authorized by statute; and
(z) an entity with appropriate legal authority in another state to
license, certify or otherwise approve prospective foster and adoptive
parents where disclosure of information regarding the prospective foster
or adoptive parents and other persons over the age of eighteen residing
in the home of such prospective parents is required by paragraph twenty
of subdivision (a) of section six hundred seventy-one of title forty-two
of the United States code.
After a child, other than a child in residential care, who is reported
to the central register of abuse or maltreatment reaches the age of
eighteen years, access to a child's record under subparagraphs (a) and
(b) of this paragraph shall be permitted only if a sibling or off-spring
of such child is before such person and is a suspected victim of child
abuse or maltreatment. In addition, a person or official required to
make a report of suspected child abuse or maltreatment pursuant to
section four hundred thirteen of this chapter shall receive, upon
request, the findings of an investigation made pursuant to this title or
section 45.07 of the mental hygiene law. However, no information may be
released unless the person or official's identity is confirmed by the
department. If the request for such information is made prior to the
completion of an investigation of a report, the released information
shall be limited to whether the report is "indicated", "unfounded" or
"under investigation", whichever the case may be. If the request for
such information is made after the completion of an investigation of a
report, the released information shall be limited to whether the report
is "indicated" or "unfounded", whichever the case may be. A person given
access to the names or other information identifying the subjects of the
report, or other persons named in the report, except the subject of the
report or other persons named in the report, shall not divulge or make
public such identifying information unless he or she is a district
attorney or other law enforcement official and the purpose is to
initiate court action or the disclosure is necessary in connection with
the investigation or prosecution of the subject of the report for a
crime alleged to have been committed by the subject against another
person named in the report. Nothing in this section shall be construed
to permit any release, disclosure or identification of the names or
identifying descriptions of persons who have reported suspected child
abuse or maltreatment to the statewide central register or the agency,
institution, organization, program or other entity where such persons
are employed or the agency, institution, organization or program with
which they are associated without such persons' written permission
except to persons, officials, and agencies enumerated in subparagraphs
(e), (f), (h), (j), (l), (m) and (v) of this paragraph.
To the extent that persons or agencies are given access to information
pursuant to subparagraphs (a), (b), (c), (j), (k), (l), (m), (o) and (q)
of this paragraph, such persons or agencies may give and receive such
information to each other in order to facilitate an investigation
conducted by such persons or agencies.
(B) Notwithstanding any inconsistent provision of law to the contrary,
a city or county social services commissioner may withhold, in whole or
in part, the release of any information which he or she is authorized to
make available to persons or agencies identified in subparagraphs (a),
(k), (l), (m), (n), (o), (p) and (q) of paragraph (A) of this
subdivision if such commissioner determines that such information is not
related to the purposes for which such information is requested or when
such disclosure will be detrimental to the child named in the report.
(C) A city or county social services commissioner who denies access by
persons or agencies identified in subparagraphs (a), (k), (l), (m), (n),
(o), (p) and (q) of paragraph (A) of this subdivision to records,
reports or other information or parts thereof maintained by such
commissioner in accordance with this title shall, within ten days from
the date of receipt of the request fully explain in writing to the
person requesting the records, reports or other information the reasons
for the denial.
(D) A person or agency identified in subparagraphs (a), (k), (l), (m),
(n), (o), (p) and (q) of paragraph (A) of this subdivision who is denied
access to records, reports or other information or parts thereof
maintained by a local department pursuant to this title may bring a
proceeding for review of such denial pursuant to article seventy-eight
of the civil practice law and rules.
5. (a) Unless an investigation of a report conducted pursuant to this
title or subdivision (c) of section 45.07 of the mental hygiene law
determines that there is some credible evidence of the alleged abuse or
maltreatment, all information identifying 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:
(i) to the office of children and family services for the purpose of
supervising a social services district;
(ii) to the office of children and family services and local or
regional fatality review team members for the purpose of preparing a
fatality report pursuant to section twenty or four hundred twenty-two-b
of this chapter;
(iii) to a local child protective service, the office of children and
family services, all members of a local or regional multidisciplinary
investigative team, the commission on quality of care for the mentally
disabled, or the department of mental hygiene, when investigating a
subsequent report of suspected abuse or maltreatment involving a subject
of the unfounded report, a child named in the unfounded report, or a
child's sibling named in the unfounded report;
(iv) to the subject of the report; and
(v) to a district attorney, an assistant district attorney, an
investigator employed in the office of a district attorney, or to a
sworn officer of the division of state police, of a city, county, town
or village police department or of a county sheriff's office when such
official verifies that the report is necessary to conduct an active
investigation or prosecution of a violation of subdivision three of
section 240.55 of the penal law.
(b) Persons given access to unfounded reports pursuant to subparagraph
(v) of paragraph (a) of this subdivision shall not redisclose such
reports except as necessary to conduct such appropriate investigation or
prosecution and shall request of the court that any copies of such
reports produced in any court proceeding be redacted to remove the names
of the subjects and other persons named in the reports or that the court
issue an order protecting the names of the subjects and other persons
named in the reports from public disclosure. The local child protective
service or state agency shall not indicate the subsequent report solely
based upon the existence of the prior unfounded report or reports.
Notwithstanding section four hundred fifteen of this title, section one
thousand forty-six of the family court act, or, except as set forth
herein, any other provision of law to the contrary, an unfounded report
shall not be admissible in any judicial or administrative proceeding or
action; provided, however, an unfounded report may be introduced into
evidence: (i) by the subject of the report where such subject is a
respondent in a proceeding under article ten of the family court act or
is a plaintiff or petitioner in a civil action or proceeding alleging
the false reporting of child abuse or maltreatment; or (ii) in a
criminal court for the purpose of prosecuting a violation of subdivision
three of section 240.55 of the penal law. Legally sealed unfounded
reports shall be expunged ten years after the receipt of the report.
Whenever the office of children and family services determines that
there is some credible evidence of abuse or maltreatment as a result of
an investigation of a report conducted pursuant to subdivision (c) of
section 45.07 of the mental hygiene law, the office of children and
family services shall notify the commission on quality of care for the
mentally disabled.
(c) Notwithstanding any other provision of law, the office of children
and family services may, in its discretion, grant a request to expunge
an unfounded report where: (i) the source of the report was convicted of
a violation of subdivision three of section 240.55 of the penal law in
regard to such report; or (ii) the subject of the report presents clear
and convincing evidence that affirmatively refutes the allegation of
abuse or maltreatment; provided however, that the absence of credible
evidence supporting the allegation of abuse or maltreatment shall not be
the sole basis to expunge the report. Nothing in this paragraph shall
require the office of children and family services to hold an
administrative hearing in deciding whether to expunge a report. Such
office shall make its determination upon reviewing the written evidence
submitted by the subject of the report and any records or information
obtained from the state or local agency which investigated the
allegations of abuse or maltreatment.
* 5-a. Upon notification from a local social services district, that a
report is part of the family assessment and services track pursuant to
subparagraph (i) of paragraph (c) of subdivision four of section four
hundred twenty-seven-a of this title, the central register shall
forthwith identify the report as an assessment track case and legally
seal such report.
* NB Repealed June 1, 2011
6. In all other cases, the record of the report to the statewide
central register shall be expunged ten years after the eighteenth
birthday of the youngest child named in the report. In the case of a
child in residential care as defined in subdivision four of section four
hundred twelve-a of this title, 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. At any time, a subject of a report and other persons named in the
report may receive, upon request, a copy of all information contained in
the central register; provided, however, that the commissioner is
authorized to prohibit the release of data that would identify the
person who made the report or who cooperated in a subsequent
investigation or the agency, institution, organization, program or other
entity where such person is employed or with which he is associated,
which he reasonably finds will be detrimental to the safety or interests
of such person.
8. (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 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. The
office of children and family services shall as expeditiously as
possible but within no more than fifteen working days of receiving such
materials from the child protective service or state agency, review all
such materials in its possession concerning the indicated report and
determine, after affording such service or state agency a reasonable
opportunity 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 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 of the report to a licensing
agency, as defined by subdivision four of section four hundred
twenty-four-a of this title.
(iii) If it is determined at the review held pursuant to this
paragraph (a) that there is no credible evidence in the record to find
that the subject committed an act or acts of child abuse or
maltreatment, the department 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 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 agency, the department shall be
precluded from informing a provider or licensing agency which makes an
inquiry to the department 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 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 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 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 disapproval of an application
which could be submitted by the subject to a licensing agency, the
department 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.
(b) (i) If the department, 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 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
presumption that said allegation is substantiated by some credible
evidence.
(c) (i) If it is determined at the fair hearing that there is no
credible evidence in the record to find that the subject committed an
act or acts of child abuse or maltreatment, the department 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 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
subdivision 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 shall notify the
subject forthwith. The department shall inform a provider or licensing
agency which makes an inquiry to the department 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
application submitted by the subject to a licensing agency shall
preclude the department from informing a provider or licensing agency
which makes an inquiry to the department 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.
(d) The commissioner or his or her designated agent is hereby
authorized and empowered to make any appropriate order respecting the
amendment of a record to make it accurate or consistent with the
requirements of this title.
(e) Should the department 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 standards set forth in subdivision five
of this section.
9. Written notice of any expungement or amendment of any record, made
pursuant to the provisions of this title, shall be served forthwith upon
each subject of such record, other persons named in the report, the
commissioner, and, as appropriate, the applicable local child protective
service, the commission on quality of care for the mentally disabled,
the division for youth, department of education, office of mental
health, office of mental retardation and developmental disabilities, the
local social services commissioner or school district placing the child,
any law guardian appointed to represent the child whose appointment has
been continued by a family court judge during the term of a child's
placement, and the director or operator of a residential care facility
or program. The local child protective service or the state agency which
investigated the report, upon receipt of such notice, shall take the
appropriate similar action in regard to its child abuse and maltreatment
register and records and inform, for the same purpose, any other agency
which received such record.
10. Whenever the department determines that there is some credible
evidence of abuse or maltreatment as a result of an investigation of a
report conducted pursuant to this title or section 45.07 of the mental
hygiene law concerning a child in residential care, the department shall
notify the child's parent or guardian and transmit copies of reports
made pursuant to this title to the director or operator of the
residential facility or program and, as applicable, the local social
services commissioner or school district placing the child, division for
youth, department of education, commission on quality of care for the
mentally disabled, office of mental health, office of mental retardation
and developmental disabilities, and any law guardian appointed to
represent the child whose appointment has been continued by a family
court judge during the term of a child's placement.
11. (a) Reports and records made pursuant to this title, including any
previous report concerning a subject of the report, other persons named
in the report or other pertinent information, involving children who
reside in residential facilities or programs enumerated in paragraphs
(a), (b), (c), (d), (e), (f) and (j) of subdivision four of section four
hundred twelve-a of this title, shall be transmitted immediately by the
statewide central register to the commissioner of the office of children
and family services who shall commence an appropriate investigation
consistent with the terms and conditions set forth in section four
hundred twenty-four-c of this title.
(b) The department shall establish standards for the provision of
training to its employees charged with the investigation of reports of
child abuse and maltreatment in residential care in at least the
following: (a) basic training in the principles and techniques of
investigation, including relationships with other investigative bodies,
(b) legal issues in child protection including the legal rights of
children, employees and volunteers, (c) methods of identification,
remediation, treatment and prevention, (d) safety and security
procedures, and (e) the principles of child development, the
characteristics of children in care, and techniques of group and child
management including crisis intervention. The department shall take all
reasonable and necessary actions to assure that its employees are kept
apprised on a current basis of all department policies and procedures
relating to the protection of children from abuse and maltreatment.
(c) Reports and records made pursuant to this title, including any
previous report concerning a subject of the report, other persons named
in the report or other pertinent information, involving children who
reside in a residential facility licensed or operated by the offices of
mental health, mental retardation and developmental disabilities or
alcoholism and substance abuse services except those facilities or
programs enumerated in paragraph (j) of subdivision four of section four
hundred twelve-a of this title, shall be transmitted immediately by the
statewide central register to the commission on quality of care and
advocacy for persons with disabilities, which shall commence an
appropriate investigation in accordance with the terms and conditions
set forth in section 45.07 of the mental hygiene law.
12. Any person who willfully permits and any person who encourages the
release of any data and information contained in the central register to
persons or agencies not permitted by this title shall be guilty of a
class A misdemeanor.
13. There shall be a single statewide telephone number for use by all
persons seeking general information about child abuse, maltreatment or
welfare other than for the purpose of making a report of child abuse or
maltreatment.
14. The department shall refer suspected cases of falsely reporting
child abuse and maltreatment in violation of subdivision three of
section 240.55 of the penal law to the appropriate law enforcement
agency or district attorney.
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