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BILL AS INTRODUCED 2007-2008

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H.148

Introduced by Representatives Grad of Moretown, Gervais of Enosburg and Pellett of Chester

Referred to Committee on

Date:

Subject:  Human services; child abuse registry

Statement of purpose:  This bill proposes a number of measures related to child abuse reporting and the child abuse registry.  The bill:

(1)  makes confidential any identifying information about a person who makes a report of child abuse or about any person mentioned in a report;

(2)  gives the department for children and families discretion to provide services to a child who is the subject of a child abuse report or to the child’s family or caretaker;

(3)  requires the department to begin an investigation within 72 hours after it has sufficient information to accept a report of child abuse;

(4)  requires, if the abuse occurred outside the home, the department’s investigation to include the names of other children living outside the home who may be at risk;

(5)  permits child abuse registry records to be disclosed to law enforcement agencies; and

(6)  requires the department to adopt rules for the child abuse registry which define what a “registry record” is, specify time frames and other criteria for inclusion of a person’s name in the registry, and establish processes through which a person may challenge his or her inclusion in the registry and seek to remove his or her name from it. 

AN ACT RELATING TO THE CHILD ABUSE REGISTRY

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  33 V.S.A. chapter 49, subchapter 2 is amended to read:

Subchapter 2.  Reporting Abuse of Children

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§ 4912.  DEFINITIONS

As used in this subchapter:

(1)  “Child” means an individual under the age of majority.

(2)  An “abused or neglected child” means a child whose physical health, psychological growth and development or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent or other person responsible for the child’s welfare.  An “abused or neglected child” also means a child who is sexually abused or at substantial risk of sexual abuse by any person.

(3)  “Harm” can occur by:

(A)  Physical injury or emotional maltreatment;

(B)  Failure to supply the child with adequate food, clothing, shelter, or health care.  For the purposes of this subchapter, “adequate health care” includes any medical or nonmedical remedial health care permitted or authorized under state law.  Notwithstanding that a child might be found to be without proper parental care under chapter 55 of Title 33, a parent or other person responsible for a child’s care legitimately practicing his or her religious beliefs who thereby does not provide specified medical treatment for a child shall not be considered neglectful for that reason alone; or

(C)  Abandonment of the child.

(4)  “Risk of harm” means a significant danger that a child will suffer serious harm other than by accidental means, which harm would be likely to cause physical injury, neglect, emotional maltreatment or sexual abuse.

(5)  “A person responsible for a child’s welfare” includes the child’s parent; guardian; foster parent; any other adult residing in the home who serves in a parental role; an employee of a public or private residential home, institution or agency; or other person responsible for the child’s welfare while in a residential, educational or day care setting, including any staff person.

(6)  “Physical injury” means death, or permanent or temporary disfigurement or impairment of any bodily organ or function by other than accidental means.

(7)  “Emotional maltreatment” means a pattern of malicious behavior which results in impaired psychological growth and development.

(8)  “Sexual abuse” consists of any act or acts by any person involving sexual molestation or exploitation of a child including but not limited to incest, prostitution, rape, sodomy, or any lewd and lascivious conduct involving a child.  Sexual abuse also includes the aiding, abetting, counseling, hiring, or procuring of a child to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts a sexual conduct, sexual excitement or sadomasochistic abuse involving a child.

(9)  “Multi-disciplinary team” means a group of professionals, paraprofessionals and other appropriate individuals, empaneled by the commissioner of social and rehabilitation services under this chapter, for the purpose of assisting in the identification and investigation of cases of child abuse and neglect, coordinating treatment services for abused and neglected children and their families and promoting child abuse prevention.

(10)  “Substantiated report” means that the commissioner or the commissioner’s designee has determined after investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected.

(11)  [Repealed.]

(12)  “Member of the clergy” means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner. 

§ 4913.  SUSPECTED CHILD ABUSE AND NEGLECT; REMEDIAL
  ACTION

(a)  Any physician, surgeon, osteopath, chiropractor, or physician’s assistant licensed, certified, or registered under the provisions of Title 26, any resident physician, intern, or any hospital administrator in any hospital in this state, whether or not so registered, and any registered nurse, licensed practical nurse, medical examiner, dentist, psychologist, pharmacist, any other health care provider, school superintendent, school teacher, school librarian, day care worker, school principal, school guidance counselor, mental health professional, social worker, probation officer, police officer, camp owner, camp administrator, camp counselor, or member of the clergy who has reasonable cause to believe that any child has been abused or neglected shall report or cause a report to be made in accordance with the provisions of section 4914 of this title within 24 hours.  As used in this subsection, “camp” includes any residential or nonresidential recreational program.

(b)  Any other concerned person not listed in subsection (a) of this section who has reasonable cause to believe that any child has been abused or neglected may report or cause a report to be made in accordance with the provisions of section 4914 of this title.

(c)  Any person enumerated in subsections subsection (a) or (b) of this section, other than a person suspected of child abuse, who in good faith makes a report to the department of social and rehabilitation services shall be immune from any civil or criminal liability which might otherwise be incurred or imposed as a result of making a report.

(d)  The name of and any identifying information about either the person making the report, or any person mentioned in the report shall be confidential unless the person making the report specifically requests allows disclosure or unless a judicial proceeding results therefrom or unless a court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the department to make the name of the reporter available.

(e)(1)  A person who violates subsection (a) of this section shall be fined not more than $500.00.

(2)  A person who violates subsection (a) of this section with the intent to conceal abuse or neglect of a child shall be imprisoned not more than six months or fined not more than $1,000.00, or both.

(3)  This section shall not be construed to prohibit a prosecution under any other provision of law.

(f)  Except as provided in subsection (g) of this section, a person may not refuse to make a report required by this section on the grounds that making the report would violate a privilege or disclose a confidential communication.

(g)  A member of the clergy shall not be required to make a report under this section if the report would be based upon information received in a communication which is:

(1)  made to a member of the clergy acting in his or her capacity as spiritual advisor;

(2)  intended by the parties to be confidential at the time the communication is made;

(3)  intended by the communicant to be an act of contrition or a matter of conscience; and

(4)  required to be confidential by religious law, doctrine, or tenet.

(h)  When a member of the clergy receives information about abuse or neglect of a child in a manner other than as described in subsection (g) of this section, he or she is required to report on the basis of that information even though he or she may have also received a report of abuse or neglect about the same person or incident in the manner described in subsection (g) of this section. 

§ 4914.  NATURE AND CONTENT OF REPORT; TO WHOM MADE

A report shall be made orally or in writing to the commissioner for children and families or designee.  The commissioner or designee shall request the reporter to follow the oral report with a written report, unless the reporter is anonymous.  Reports shall contain the name and address or other contact information of the reporter as well as the names and addresses of the child and the parents or other persons responsible for the child’s care, if known; the age of the child; the nature and extent of the child’s injuries together with any evidence of previous abuse and neglect of the child or the child’s siblings; and any other information that the reporter believes might be helpful in establishing the cause of the injuries or reasons for the neglect as well as in protecting the child and assisting the family.  If a report of child abuse or neglect involves the acts or omissions of the commissioner for children and families or employees of that department, then the report shall be directed to the secretary of the agency of human services who shall cause the report to be investigated by staff of the department of disabilities, aging, and independent living or of corrections or other appropriate agency staff other than staff of the department for children and families.  If the report is substantiated, services shall Services may be offered to the child and to his or her family or caretaker according to the requirements of section 4915 of this title. 

§ 4915.  INVESTIGATION; REMEDIAL ACTION

(a)  The commissioner of social and rehabilitation services shall cause an investigation to commence within 72 hours after receipt of the department has sufficient information to accept a report made pursuant to section 4914 of this title.

(b)  The investigation, to the extent that it is reasonable and practicable, shall include all of the following:

(1)  A visit to the child’s place of residence or place of custody and to the location of the alleged abuse or neglect.

(2)  An interview with, or observance of the child reportedly having been abused or neglected.  If the investigator elects to interview the child, that interview may take place without the approval of the child’s parents, guardian, or custodian, provided that it takes place in the presence of a disinterested adult who may be, but shall not be limited to being, a teacher, a member of the clergy, regulated child care provider, or a nurse.

(3)  Determination of the nature, extent, and cause of any abuse or neglect.

(4)  Determination of the identity of the person alleged to be responsible for such abuse or neglect.

(5)  The identity, by name, of any other children living in the same home environment, or, if the abuse occurred outside the home, of any other children who may be at risk.  The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.

(6)  A determination of the immediate and longterm risk to each child if that child remains in the existing home or other environment.

(7)  Consideration of the environment and the relationship of any children therein to the person alleged to be responsible for the suspected abuse or neglect.

(8)  All other data deemed pertinent.

(c)  If the investigation produces evidence that the child has been abused or neglected For cases investigated by the department, the commissioner may, to the extent that it is reasonable, cause assistance to be provided to the child and the child’s family in accordance with a written plan of treatment.

(d)  The commissioner, designee, or any person required to report under section 4913 or any other person performing an investigation pursuant to section 4914 may take or cause to be taken, photographs of trauma visible on a child who is the subject of a report.  The commissioner or designee may seek consultation with a physician.  If it is indicated as appropriate by the physician, the commissioner or designee may cause the child who is subject of a report to undergo a radiological or other medical examination, without the consent of the child’s parent or guardian.

(e)  Services may be provided to the child’s immediate family whether or not the child remains in the home. 

§ 4916.  REGISTRY; RECORDS OF ABUSE AND NEGLECT; DISCLOSURE OF INFORMATION

(a)  The commissioner of social and rehabilitation services shall maintain a registry which shall contain written records of all investigations initiated under section 4915 of this title unless the commissioner or the commissioner’s designee determines after investigation that the reported facts are unsubstantiated, in which case, after notice to the person complained about, the records shall be destroyed unless the person complained about requests within one year that it not be destroyed a record of all investigations that have resulted in a substantiated report.  The registry record shall contain the following information:  the names of individuals substantiated for child abuse or neglect; the date of the finding; and the nature of the finding.  In addition, the commissioner shall require that at least one other personal identifier, other than a name, is listed in the registry in order to avoid the possibility of misidentification.

(b)  If no court proceeding is brought pursuant to subsection 4913(d) of this title within one year of the date of the notice to the person complained about, the records relating to the unsubstantiated report shall be destroyed. Investigative information and reports are confidential and shall not be disclosed unless authorized by law or in connection with a court or administrative proceeding.

(c)  The commissioner shall adopt rules to permit use of the registry records while preserving confidentiality of the records registry and other department records related to abuse and neglect.  The rules shall include a definition of “registry record,” time frames, and other criteria for a name to remain in the registry, an expeditious process for a person to challenge the initial inclusion of his or her name in the registry, and factors to be considered when determining whether a person has demonstrated sufficient rehabilitation to warrant expungement of the person’s name from the registry.

(d)  Written The records maintained in the registry shall only be disclosed to the commissioner or person designated by the commissioner to receive such records, persons assigned by the commissioner to investigate reports, the person reported on, an employer, person or organization serving children or vulnerable adults, an owner or operator of a regulated facility under section 309 or 4919 of this title, or a state’s attorney or the attorney general.  In no event shall registry records be made available for employment purposes, other than as set forth in section 309 or 4919 of this title, or for credit purposes, or to a law enforcement agency other than the state’s attorney.  Any person who violates this subsection, except as provided in section 4919 of this title, shall be fined not more than $500.00.

(e)(1)  Verbal Notice.  The commissioner or the commissioner’s designee shall promptly inform a parent or guardian of the child that a report has been made and substantiated.  If a parent or guardian is under investigation for abuse or neglect, such information need only be provided to that parent or guardian in accordance with subsection 4916(d) of this title.

(2)  Written Records.  If a report has been substantiated, the commissioner or the commissioner’s designee may provide upon request the written record investigative report to the child’s parent or guardian or, if there is a pending juvenile proceeding or if the child is in custody of the commissioner, to the child’s attorney.

(f)(1)  The commissioner or the commissioner’s designee may inform the following persons that a report has been substantiated:

(1)(A)  The person responsible for supervising the staff in the child’s residential, educational or day care setting.

(2)(B)  Upon request, to the person who made the report under subsection 4913(a) of this title.

(C)  Any person authorized by law or rule to receive such information. 

(2)  A person receiving information under this subsection shall not disclose that information to persons who are not involved with the provision of treatment services under section 4915 of this title to the abused or neglected child.

(g)  A person may, at any time, apply to the human services board for relief if he or she has reasonable cause to believe that contents of the registry records are being misused.  All registry records relating to an individual child shall be destroyed when the child reaches the age of majority.  All registry records relating to a family or siblings within a family shall be destroyed when the youngest sibling reaches the age of majority.  All registry records shall be maintained according to the name of the child who has been abused or neglected, and the name of the person about whom the report was made.

(h)  A person may, at any time within the time frames established by rule, apply to the human services board for an order expunging from the registry a record concerning him or her on the grounds that it is unsubstantiated or not otherwise expunged in accordance with this section.  The board shall hold a fair hearing under section 3091 of Title 3 on the application at which hearing


the burden shall be on the commissioner to establish that the record shall not be expunged.

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§ 4919.  DISCLOSURE OF INFORMATION

(a)  The commissioner shall maintain a registry which shall contain the following information: the names of all the individuals found on the basis of a substantiated report to have abused, neglected or exploited a child; the date of the finding; and the nature of the finding.  In addition, the commissioner shall require that, aside from a person’s name, at least one other personal identifier is listed in the registry to prevent the possibility of misidentification.

(b)  The commissioner or the commissioner’s designee may disclose registry information only as set forth in section 4916 of this title or as follows:

(1)  To the state’s attorney or the attorney general;

(2)  To the owner or operator of a facility regulated by the department for the purpose of informing the owner or operator that employment of a specific individual may result in loss of license or registration, as set forth in section 309 of this title;

(3)  To an employer or to a person or organization serving children or vulnerable adults if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults.  The employer or the person or organization serving children or vulnerable adults may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer or the person or organization serving children or vulnerable adults has given a conditional offer of a contract, volunteer position, or employment.  The request shall be accompanied by a release signed by the current or prospective employee, volunteer, grantee, or contractor.  If that individual has a record of a substantiated report, the commissioner shall provide the registry information record to the employer;

(4)  To the commissioner of disabilities, aging, and independent living, or the commissioner’s designee, for purposes related to the licensing or registration of facilities regulated by the department of disabilities, aging, and independent living;

(5)  To the commissioner of health or of disabilities, aging, and independent living, or the commissioner’s designee, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the departments of health and of disabilities, aging, and independent living, including persons to whom a conditional offer of employment has been made;

(6)  Upon request or when relevant to other states’ adult protective services offices; and

(7)  Upon request or when relevant to other states’ child protection agencies.

(c)(b)  Volunteers shall be considered employees for purposes of this section.

(d)(c)  Disclosure of registry records or information or other records used or obtained in the course of providing services to prevent child abuse or neglect or to treat abused or neglected children and their families by one member of a multidisciplinary team to another member of that team shall not subject either member of the multidisciplinary team, individually, or the team as a whole, to any civil or criminal liability notwithstanding any other provision of law.

(e)(d)  “Employer,” as used in this section, means a person or organization who employs or contracts with one or more individuals to care for children or vulnerable adults, on either a paid or volunteer basis. 

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Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us