Home » 2016 Issues » June 08, 2016 » CFS-23-16-00004-EP Requirements Regarding the Cooperation of School Districts with Investigations of Suspected Child Abuse or Maltreatment
CFS-23-16-00004-EP Requirements Regarding the Cooperation of School Districts with Investigations of Suspected Child Abuse or Maltreatment
6/8/16 N.Y. St. Reg. CFS-23-16-00004-EP
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 23
June 08, 2016
RULE MAKING ACTIVITIES
OFFICE OF CHILDREN AND FAMILY SERVICES
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. CFS-23-16-00004-EP
Filing No. 506
Filing Date. May. 23, 2016
Effective Date. May. 23, 2016
Requirements Regarding the Cooperation of School Districts with Investigations of Suspected Child Abuse or Maltreatment
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of section 432.3 of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 34(3)(f), 421(3), 423(6) and 425(1)
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
These regulations are necessary to protect the health, safety and welfare of children involved in a report of suspected child abuse or maltreatment. An oral order issued by the United States District Court for the Southern District of New York on August 19, 2015 pertaining to Phillips et al. v. County of Orange, et al. (“Phillips”) granted a motion by the plaintiffs for summary judgment and held that, in this case, the county engaged in an unconstitutional seizure of a child when the child was questioned in a public school without parental consent as part of a child protective services investigation. Although the oral determination was not part of a published decision, holds no precedential value, and went well beyond established case law, the determination created great confusion and anxiety for school districts and child protective services agencies alike.
In response to the order, some school districts have begun denying access to the child protective service (CPS) or requiring additional CPS actions prior to allowing CPS access to children in a school setting without parental consent. These obstructions are disparate in form and manner among school districts and have added dangerous and unnecessary delay and confusion to the investigatory process. These delays are creating danger to the health, safety and welfare of children.
The position of OCFS and SED was and remains that children who are alleged to have been abused or maltreated can be interviewed by CPS at school without parental permission or a court order in appropriate circumstances. The first duty of CPS in conducting a child protective services investigation is to see to the safety of the child. (Section 424(6)(a) of the Social Services Law and 18 NYCRR 432.2(b)(3)). Especially in a situation where a parent is alleged to have abused or maltreated a child and there is concern over the immediate health or safety of the child, the need to protect the health and safety of the child requires CPS to interview the child outside the presence of the parent who has allegedly abused or maltreated the child.
Regulations are necessary to clarify the requirements and standards around CPS access to children in schools. Emergency regulations are necessary to provide immediate protections for vulnerable children when CPS encounters circumstances during an investigation into suspected child abuse or maltreatment that warrant interviewing the child apart from family members or the home where child abuse or maltreatment allegedly occurred and without parental consent.
Subject:
Requirements regarding the cooperation of school districts with investigations of suspected child abuse or maltreatment.
Purpose:
To clarify requirements for the cooperation of school districts with investigations of suspected child abuse or maltreatment.
Text of emergency/proposed rule:
Existing subdivision (i) of Section 432.3 of Title 18 of the NYCRR is amended to read as follows:
(i) (1) Commencing or causing the appropriate society for the prevention of cruelty to children to commence within 24 hours an appropriate investigation or family assessment response on all reports of suspected child abuse and maltreatment in accordance with the provisions of sections 432.2(b)(3) and section 432.13 of this Part.
(2) Request and receive, as provided for in subdivision 1 of Section 425 of the Social Services Law, when applicable, from departments, boards, bureaus, or other agencies of the state, or any of its political subdivisions including school districts (as that term is defined in subdivision 2 of Section 1980 of the Education Law), and charter schools operated pursuant to Article 56 of the Education Law, or any duly authorized agency, or any other agency providing services under the local child protective services plan, such assistance and data as will enable the local child protective service to fulfill its responsibilities properly, including providing such assistance and data to members of a multi-disciplinary team established pursuant to subdivision 6 of Section 423 of the Social Services Law when such members accompany a representative of the child protective service. Such assistance and data includes, but is not limited to:
(i) access to records relevant to the investigation of suspected abuse or maltreatment; and
(ii) access to any child named as a victim in a report of suspected abuse or maltreatment or any sibling or other child residing in the same home as the named victim. Such access includes conducting an interview of such child without a court order or the consent of the parent, guardian or other person legally responsible for the child when the child protective service encounters circumstances that warrant interviewing the child apart from family or other household members or the home or household where child abuse or maltreatment allegedly occurred. The representative of the child protective service and other members of a multi-disciplinary team accompanying a representative of the child protective service may be asked to provide identification and to identify the child or children to be interviewed, but may not be asked for or required to provide any other information or documentation as a condition of having access to a child or children. Nothing contained herein shall preclude a school, school district or other program or facility operated by a department, board, bureau, or other agency of the state or any of its political subdivisions, or by a duly authorized agency or other agency providing services under the local child protective services plan from authorizing a staff member of the school or other such program or facility to observe the interview of the child, either from the same or another room, at the discretion of the school, school district or other such program or facility. Nothing contained herein shall preclude a school, school district or other such program or facility from requiring that representatives of the child protective service or other members of a multi-disciplinary team accompanying a representative of the child protective service comply with the reasonable visitor policies or procedures of the school, school district or other such program or facility, unless such policies or procedures are contrary to the requirements of this paragraph.
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire August 20, 2016.
Text of rule and any required statements and analyses may be obtained from:
Public Information Office, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, New York 12144, (518) 473-7793, email: info@ocfs.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority:
Section 20(3)(d) of the Social Services Law (SSL) authorizes the Office of Children and Family Services (OCFS) to establish rules and regulations to carry out its powers and duties pursuant to the provisions of the SSL.
Section 34(3)(f) of the SSL requires the Commissioner of OCFS to establish regulations for the administration of public assistance and care within the State.
Section 421(3) of the SSL requires the Commissioner of OCFS to promulgate regulations setting forth requirements for the provision of child protective services by social services districts including establishing uniform requirements for the investigation of reports of child abuse and maltreatment.
Section 423(6) of the SSL authorizes the establishment of multi-disciplinary teams by social services districts for the purpose of investigating reports of suspected child abuse and maltreatment. Such teams must include representatives of child protective services, law enforcement, and others.
Section 425(1) of the SSL provides that the Commissioner of OCFS may request and shall receive from departments, boards, bureaus and agencies of the State or any of its political subdivisions, or any duly authorized agency, or any other agency providing services under the local child protective services plan, such assistance and data as will enable the local child protective service to fulfill its responsibilities properly.
2. Legislative objectives:
The proposed changes to the regulations are necessary to further the legislative objective that children be protected from abuse and maltreatment.
3. Needs and benefits:
The regulatory language clarifies the expectations of child protective services and schools around cooperation and assistance with ongoing investigations of suspected child abuse and maltreatment. The proposed changes to the regulations are in response to the recognized need to strengthen and clarify these expectations to better provide for the safety of children in New York State. Accordingly, the benefit of this regulation is to create consistent safeguards for children during the investigation of allegations of abuse and maltreatment.
The regulations will clarify that the requirement to provide assistance and data to child protective services includes school districts and charter schools. The regulations will discuss what constitutes assistance and clarify that it includes access to an allegedly abused or maltreated child by child protective services and members of a multi-disciplinary team accompanying child protective services. The regulations will limit the information that child protective services and members of a multi-disciplinary team accompanying child protective services may be required to provide as a condition of having access to a child, but will permit schools, school districts and other programs and facilities operated by a department, board, bureau or other agency of the State or any of its political subdivisions, or any duly authorized agency, or any other agency providing services under the local child protective services plan to require compliance with reasonable visitor policies and procedures. Schools, school districts and other such programs and facilities would also be permitted to have staff observe interviews of children occurring in the school, school district or other such program or facility.
The regulations will also clarify that the provision of data includes those records relevant to the child protective investigation. it will not require the provision of any and all records in the possession of the school, school district or other such program or facility, but only those relevant to such investigation. As under current practice, the determination of what records are relevant will have to be determined on a case by case basis through discussion between child protective services and the holder of the records.
4. Costs:
The proposed regulatory changes are not expected to have an adverse fiscal impact on social services districts, child protective services or school districts.
5. Local government mandates:
The proposed regulations will not impose any additional mandates on social services districts or school districts.
6. Paperwork:
The proposed regulations do not require any additional paperwork.
7. Duplication:
The proposed regulations effectuate the requirements of Section 425(1) of the SSL. They do not duplicate any other State or Federal requirements.
8. Alternatives:
The proposed regulations are necessary to provide immediate protections for vulnerable children when child protective services encounters circumstances during an investigation into suspected child abuse or maltreatment that warrant interviewing the child apart from family members or the home where child abuse or maltreatment allegedly occurred. Therefore, there are no alternatives to the proposed regulations.
9. Federal standards:
The regulatory amendments do not conflict with any federal standards.
10. Compliance schedule:
The regulations will be effective on May 23, 2016.
Regulatory Flexibility Analysis
1. Types and estimated number of small businesses and local governments:
There are 58 social services districts and 695 school districts in New York State.
2. Reporting, recordkeeping and compliance requirements and professional services:
No anticipated impact.
3. Costs:
No anticipated additional costs.
4. Economic and technological feasibility:
The proposed regulatory changes would not require any additional technology and should not have any adverse economic consequences for regulated parties.
5. Minimizing adverse impact:
The proposed changes to the regulations clarify requirements and standards for child protective services (and in relevant cases, accompanying members of a multi-disciplinary team) access to children in school settings. The regulation is necessary to provide immediate protections for vulnerable children when child protective services encounters circumstances during an investigation into suspected child abuse or maltreatment that warrant interviewing the child apart from family members or the home where child abuse or maltreatment allegedly occurred, and without the consent of the parent.
6. Small business and local government participation:
The Office of Children and Family Services (OCFS) received requests from the New York Public Welfare Association (NYPWA), multiple social services districts, the New York State Association of School Attorneys (NYSASA) and the New York State School Boards Association (NYSSBA) for clarification or guidance on this issue. This regulation is supported by policies issued by OCFS and the State Education Department. In addition, forums for training and other presentations are anticipated using resources available to OCFS, NYPWA, NYSASA and NYSSBA to reach school districts and social services districts.
Rural Area Flexibility Analysis
1. Types and estimated number of rural areas:
There are 44 rural social services districts and 299 school districts in rural areas.
2. Reporting, recordkeeping and compliance requirements and professional services:
No anticipated impact.
3. Costs:
No anticipated costs.
4. Minimizing adverse impact:
The proposed changes to the regulations clarify expectations and standards around access to children in school settings by child protective services and, in relevant cases, accompanying members of a multi-disciplinary team. The regulation is necessary to provide immediate protections for vulnerable children when child protective services encounters circumstances during an investigation into suspected child abuse or maltreatment that warrant interviewing the child apart from family members or the home where child abuse or maltreatment allegedly occurred, and without the consent of the parent.
5. Rural area participation:
The Office of Children and Family Services (OCFS) received requests from the New York Public Welfare Association (NYPWA), multiple social services districts, the New York State Association of School Attorneys (NYSASA) and the New York State School Boards Association (NYSSBA) for clarification or guidance on this issue. This regulation is supported by policies issued by OCFS and the State Education Department. In addition, forums for training and other presentations are anticipated using resources available to OCFS, NYPWA, NYSASA and NYSSBA to reach school districts and social services districts.
Job Impact Statement
The proposed regulations are not expected to have a negative impact on jobs or employment opportunities in either public or private sector service providers. A full job impact statement has not been prepared for the proposed regulations as it is not anticipated that the proposed regulations will have any adverse impact on jobs or employment opportunities.
