Relates to filing and investigation of reports alleging educational neglect

Summary of specific provisions

Section 1 amends subdivision 8 of section 34-a of the social services law. Section 2 amends paragraph c of subdivision 5 of section 422 of the social services law. Section 3 is the effective date.

Justification

An investigation into an allegation of educational neglect is administered by the State in the same manner as an allegation of maltreatment, physical abuse or sexual abuse. In all cases a call is made to the Statewide Central Registry (SCR), and if the report is accepted, an investigation commences. That investigation can be determined to be "unfounded" if the facts don't corroborate the allegation, or can be "indicated" if there is credible evidence that the child is endangered.

All indicated reports are maintained by the SCR, and the information is available to child care employers, child protective agencies and the police for at least ten years, and in some instances, twenty years or more. An unfounded report is retained on the SCR for the same amount of time, but is only available to police or child protective agencies.

The SCR system serves children because an unfounded report may help inform a subsequent investigation of abuse or maltreatment. A person can have their record expunged if the source of the report was convicted of falsely making that report, or if the subject can affirmative refute the allegation to the satisfaction of the Office of Children and Family Services (OCFS) by a clear and convincing standard of evidence. These are difficult standards to meet. This system works well in abuse and maltreatment situations, given the potential risk to children.

However, reports to the SCR alleging educational neglect can be made in response to a broad range of situations, given the school district's internal policies. In August of 2006, the Legislature directed OCFS and the State Education Department to develop model policies which local school and social services districts could follow in order to protect children who were the victims of educational neglect. Educational neglect is defined under that policy as "the failure of a parent to ensure that child's prompt and regular attendance in school or the keeping of a child out of school for impermissible reasons resulting in an adverse affect on the child's educational progress or imminent danger of such an adverse affect."

The Committee on Children and Families has learned of several instances where school districts across the State have filed

educational neglect petition when parents objected to their child's assignment to a special education program. In each of these cases, the charge of educational neglect was filed before the Independent Educational Plan evaluation was conducted. Even though these parent were exonerated of any charge by the child protective investigation which followed, the unfounded reports remains a matter of record for approximately a decade.

The burden is on these individuals to disprove the allegations to the satisfaction of OCFS. It is unreasonable and inappropriate to demand that this person satisfy the clear and convincing evidence standard, which is the most stringent standard applied in civil cases, in order to clear their record of an unfounded report stemming from a disagreement over their child's educational plan.

Educational neglect is unlike other abuse and maltreatment cases. Though allegations of educational neglect are serious, they can, as highlighted above, occur in situations which do not point to abuse or maltreatment. Accordingly, this legislation prevents a school district from alleging a case of educational neglect unless any necessary hearings by the committee on special education have occurred. Further, if any investigation of educational neglect is found to be without merit, the subject's record must be expunged.

Prior legislative history

First introduced in 2010.

Fiscal implications for state and local governments

None.

Effective date

Immediately.