CFS-23-16-00004-ERP Requirements Regarding the Cooperation of School Districts with Investigations of Suspected Child Abuse or Maltreatment

9/28/16 N.Y. St. Reg. CFS-23-16-00004-ERP

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 39

September 28, 2016

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-23-16-00004-ERP

Filing No. 844

Filing Date. Sept. 08, 2016

Effective Date. Sept. 08, 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:

Action Taken:

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/revised 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 their photographic employment identification or, if they lack photographic employment identification, an alternate form of government issued photographic 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 revised rule making. The notice of proposed rule making was published in the State Register on June 8, 2016, I.D. No. CFS-23-16-00004-EP. The emergency rule will expire December 6, 2016.

Emergency rule compared with proposed rule:

Substantial revisions were made in section 432.3(i)(2).

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, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

30 days after publication of this notice.

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

Assessment of Public Comment

Three public comments were received on the emergency regulations in response to the Notice of Emergency Adoption and Proposed Rulemaking.

Two comments were received from staff of local social services districts who are employed in child protective services (CPS). Both commented that there are schools that have refused to accept the official CPS identification issued by the local social services district when CPS caseworkers seek admission to schools to interview children, and have demanded that the CPS caseworkers produce driver’s licenses to prove their identity. The schools then maintain copies of the driver’s licenses, which have the CPS caseworkers’ home addresses on them. Both commenters were concerned that if school personnel who had access to the copies of the driver’s licenses were ever named in a report of suspected child abuse or maltreatment, the school personnel would then have access to the home addresses of the CPS caseworkers, thus creating a potential safety issue.

The regulations provide that a school or other institution may require proof of identification but do not address what would constitute sufficient identification. OCFS agrees that the employment photo identification issued to a CPS caseworker is sufficient to identify the caseworker to a school or other institution where a CPS caseworker might need to go to interview a child. Requiring that a CPS caseworker produce a driver’s license or other identification that might have the caseworker’s home address could be a means of attempting to discourage CPS caseworkers from conducting interviews at schools. The regulations have been revised to clarify that the school or other institution may ask that a CPS worker or other member of a multi-disciplinary team provide their employment photographic identification or, if they do not have an employment photographic identification, another form of government-issued identification.

One comment was received from a member of the public claiming that the proposed regulations are constitutionally impermissible. OCFS does not agree, and no changes were made to the regulations in response to this comment.