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SENATE PROPOSAL OF AMENDMENT 2007-2008

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H.635

 

An act relating to reports of child abuse or neglect

     The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  33 V.S.A. § 4911 is amended to read:

§ 4911.  Purpose

The purpose of this subchapter is to:

(1)  protect Protect children whose health and welfare may be adversely affected through abuse or neglect;.

(2)  strengthen Strengthen the family and make the home safe for children whenever possible by enhancing the parental capacity for good child care;.

(3)  provide Provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes require the reporting of suspected child abuse and neglect, an assessment or investigation of such reports and provision of services, when needed, to such child and family.

(4)  Establish a range of responses to child abuse and neglect that take into account different degrees of child abuse or neglect and which recognize that child offenders should be treated differently from adults.

(5)  Establish a tiered child protection registry that balances the need to protect children and the potential employment consequences of a registry record for persons who are substantiated for child abuse and neglect. 

Sec. 2.  33 V.S.A. § 4912 is amended to read:

§ 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 child’s 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 child 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, empanelled by the commissioner of social and rehabilitation services under this chapter, for the purpose of assisting in the identification and investigation review 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. 

(13)  “Redacted investigation file” means the intake report, the investigation activities summary, and case determination report that are amended in accordance with confidentiality requirements set forth in subsection 4913(d) of this title.

(14)  “Child abuse and neglect protection registry” means a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.

(15)  “Registry record” means an entry in the abuse and neglect child protection registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.

(16)  “Investigation” means a response to a report of child abuse or neglect that begins with the systematic gathering of information to determine whether the abuse or neglect has occurred and, if so, the appropriate response.  An investigation shall result in a formal determination as to whether the reported abuse or neglect has occurred.

(17)  “Assessment” means a response to a report of child abuse or neglect that focuses on the identification of the strengths and support needs of the child and the family, and any services they may require to improve or restore their well-being and to reduce the risk of future harm.  The child and family assessment does not result in a formal determination as to whether the reported abuse or neglect has occurred.

Sec. 3.  33 V.S.A. § 4913 is amended to read:

§ 4913.  REPORTING SUSPECTED CHILD ABUSE AND NEGLECT;

(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, emergency medical personnel as defined in 24 V.S.A.

§ 2651(6), dentist, psychologist, pharmacist, any other health care provider, child care worker, school superintendent, school teacher, school librarian, child care worker, school principal, school guidance counselor, and any other individual who is regularly employed by a school district, or who is contracted and paid by a school district to provide student services for 5 or more hours per week during the school year, 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. The commissioner shall inform the person who made the report under subsection (a) of this section:

(1)  whether the report was accepted as a valid allegation of abuse or neglect;

(2)  whether an assessment was conducted and, if so, whether a need for services was found; and

(3)  whether an investigation was conducted and, if so, whether it resulted in a substantiation.

(c)  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)(d)(1)  Any person enumerated in 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. 

(2)  An employer or supervisor shall not discharge; demote; transfer; reduce pay, benefits, or work privileges; prepare a negative work performance evaluation; or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter.  Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

(d)(e)  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:

(1)  the person making the report specifically allows disclosure or unless;

(2)  a human services board proceeding or a judicial proceeding results therefrom or unless;

(3)  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; or

(4)  a review has been requested pursuant to section 4916a of this title, and the department has determined that identifying information can be provided without compromising the safety of the reporter or the persons mentioned in the report.

(e)(f)(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)(g)  Except as provided in subsection (g)(h) 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)(h)  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)(i)  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)(h) 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)(h) of this section. 

Sec. 4.  33 V.S.A. § 4914 is amended to read:

§ 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 the 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 other appropriate agency staff other than staff of the department for children and families.  If the report is substantiated, services shall be offered to the child and to his or her family or caretaker according to the requirements of section 4915 4915b of this title.

Sec. 5.  33 V.S.A. § 4915 is amended to read:

§ 4915.  ASSESSMENT AND INVESTIGATION; REMEDIAL ACTION

(a)  Upon receipt of a report of abuse or neglect, the department shall promptly determine whether it constitutes an allegation of child abuse or neglect as defined in section 4912 of this title.  The department shall respond to reports of alleged neglect or abuse that occurred in Vermont and to out-of-state conduct when the child is a resident of or is present in Vermont. 

(b)  If the report is accepted as a valid allegation of abuse or neglect, the department shall determine whether to conduct an assessment as provided for in section 4915a of this title or to conduct an investigation as provided for in section 4915b of this title.  The department shall begin either an assessment or an investigation within 72 hours after the receipt of a report made pursuant to section 4914 of this title, provided that it has sufficient information to proceed.  The commissioner may waive the 72-hour requirement only when necessary to locate the child who is the subject of the allegation or to ensure the safety of the child or social worker.

(c)  The decision to conduct an assessment shall include consideration of the following factors:

(1)  the nature of the conduct and the extent of the child’s injury, if any;

(2)  the accused person’s prior history of child abuse or neglect, or lack thereof; and

(3)  the accused person’s willingness or lack thereof to accept responsibility for the conduct and cooperate in remediation. 

(d)  The department shall conduct an investigation when an accepted report involves allegations indicating substantial child endangerment.  For purposes of this section, “substantial child endangerment” includes conduct by an adult involving or resulting in sexual abuse, and conduct by a person responsible for a child’s welfare involving or resulting in abandonment, child fatality, malicious punishment, or abuse or neglect that causes serious physical injury.  The department may conduct an investigation of any report.

(e)  The department shall begin an immediate investigation if, at any time during an assessment, it appears that an investigation is appropriate.

(f)  The department may collaborate with child protection, law enforcement, and other departments and agencies in Vermont and other jurisdictions to evaluate risk to a child and to determine the service needs of the child and family.  The department may enter into reciprocal agreements with other jurisdictions to further the purposes of this subchapter.

(b)  The investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, 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, child care provider regulated by the department, 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)(A)  The identity, by name, of any other children living in the same home environment as the subject child.  The investigator shall consider the physical and emotional condition of those children and may interview them, in accordance with the provisions of subdivision (2) of this subsection, unless the subject child is the person who is alleged to be responsible for such abuse or neglect.

(B)  The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child’s household.  The investigator shall consider the physical and emotional condition of those children and may interview them, in accordance with the provisions of subdivision (2) of this subsection, unless the subject child is the person who is alleged to be responsible for such abuse or neglect.

(6)  A determination of the immediate and long-term 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)  For cases investigated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family.

(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 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.

(f)  The department shall report to and request assistance from law enforcement in the following circumstances:

(1)  Investigations of child sexual abuse by an alleged perpetrator age 10 or older.

(2)  Investigations of serious physical abuse or neglect of a child likely to result in criminal charges or requiring emergency medical care.

(3)  Situations potentially dangerous to the child or department worker.

Sec. 6.  33 V.S.A. § 4915a is added to read:

§ 4915a.  Procedures for Assessment

(a)  An assessment, to the extent that is reasonable under the facts and circumstances presented by the particular valid allegation of child abuse or neglect, shall include the following:

(1)  An interview with the child’s parent, guardian, foster parent, or any other adult residing in the child’s home who serves in a parental role.  The interview shall focus on ensuring the immediate safety of the child and mitigating the future risk of harm to the child in the home environment.

(2)  An evaluation of the safety of the subject child and any other children living in the same home environment.  The evaluation may include an interview with or observation of the child or children.  Such interviews or observations shall occur with the permission of the child’s parent, guardian, or custodian.

(3)  In collaboration with the family, identification of family strengths, resources, and service needs, and the development of a plan of services that reduces the risk of harm and improves or restores family well-being. 

(b)  The assessment shall be completed within 45 days.  Upon written justification by the department, the assessment may be extended, not to exceed a total of 60 days.

(c)  Families have the option of declining the services offered as a result of the assessment.  If the family declines the services, the case shall be closed unless the department determines that sufficient cause exists to begin an investigation or to request the state’s attorney to file a petition pursuant to chapter 55 of this title.  In no instance shall a case be investigated solely because the family declines services.

(d)  When an assessment case is closed, there shall be no finding of abuse or neglect and no indication of the intervention shall be placed in the registry.  However, the department shall document the outcome of the assessment.


Sec. 7.  33 V.S.A. § 4915b is added to read:

§ 4915b.  Procedures for Investigation

(a)  An investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, 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 observation 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, a child care provider regulated by the department, 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)(A)  The identity, by name, of any other children living in the same home environment as the subject child.  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.

(B)  The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child’s household.  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 long‑term 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.

(b)  For cases investigated and substantiated by the department, the commissioner shall, to the extent that it is reasonable, provide assistance to the child and the child’s family.  For cases investigated but not substantiated by the department, the commissioner may, to the extent that it is reasonable, provide assistance to the child and the child’s family.  Nothing contained in this section or section 4915a of this title shall be deemed to create a private right of action.

(c)  The commissioner, designee, or any person required to report under section 4913 of this title or any other person performing an investigation 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 appropriate by the physician, the commissioner or designee may cause the child who is subject of a report to undergo a radiological examination without the consent of the child’s parent or guardian. 

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

(e)  The department shall report to and request assistance from law enforcement in the following circumstances:

(1)  Investigations of child sexual abuse by an alleged perpetrator age 10 or older.

(2)  Investigations of serious physical abuse or neglect likely to result in criminal charges or requiring emergency medical care.

(3)  Situations potentially dangerous to the child or department worker.

(f)  The department shall not substantiate cases in which neglect is caused solely by the lack of financial resources of the parent or guardian.


Sec. 8.  33 V.S.A. § 4916 is amended to read:

§ 4916.  CHILD ABUSE AND NEGLECT PROTECTION REGISTRY; RECORDS OF ABUSE AND NEGLECT  

(a)(1)  The commissioner shall maintain a abuse and neglect child protection registry which shall contain a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.  Except as provided in subdivision (2) of this subsection, prior to placement of a substantiated report on the registry, the commissioner shall comply with the procedures set forth in section 4916a of this title.

(2)  In cases involving sexual abuse or serious physical abuse of a child, the commissioner in his or her sole judgment may list a substantiated report on the registry pending any administrative review after:

(A)  Reviewing the investigation file.

(B)  Making written findings in consideration of:

(i)  the nature and seriousness of the alleged behavior; and

(ii)  the person’s continuing access to children.

(3)  A person alleged to have abused or neglected a child and whose name has been placed on the registry in accordance with subdivision (2) of this subsection shall be notified of the registry entry, provided with the commissioner’s findings, and advised of the right to seek an administrative review in accordance with section 4916a of this title.

(4)  If the name of a person has been placed on the registry in accordance with subdivision (2) of this subsection, it shall be removed from the registry if the substantiation is rejected after an administrative review.

(b)  A registry record means an entry in the abuse and neglect child protection registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.

(c)  The commissioner shall adopt rules to permit use of the registry records as authorized by this subchapter while preserving confidentiality of the registry and other department records related to abuse and neglect.

(d)  Registry records 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 as defined in subsection 4919(e) 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. Any person who violates this subsection shall be fined not more than $500.00. 

For all substantiated reports of child abuse or neglect made on or after the date the final rules are adopted, the commissioner shall create a registry record that reflects a designated child protection level related to the risk of future harm to children.  This system of child protection levels shall be based upon an evaluation of the risk the person responsible for the abuse or neglect poses to the safety of children.  The risk evaluation shall include consideration of the following factors:

(A)  the nature of the conduct and the extent of the child’s injury, if any;

(B)  the person’s prior history of child abuse or neglect as either a victim or perpetrator; 

(C)  the person’s response to the investigation and willingness to engage in recommended services; and

(D)  the person’s age and developmental maturity.

(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. Absent good cause shown by the department, if a report has been substantiated, the commissioner or the commissioner’s designee shall provide upon request the redacted investigation file 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.

The commissioner shall develop rules for the implementation of a system of child protection registry levels for substantiated cases.  The rules shall address:

(1)  the length of time a person’s name appears on the registry;

(2)  when and how names are expunged from the registry;

(3)  whether the person is a juvenile or an adult;

(4)  whether the person was charged with or convicted of a criminal offense arising out of the incident of abuse or neglect; and

(5)  whether a family court has made any findings against the person.

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

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

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

(C)  Any person authorized by law 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.

Sec. 9.  33 V.S.A. § 4916a is amended to read:

§ 4916a.  CHALLENGING PLACEMENT ON THE REGISTRY

(a)  If an investigation conducted in accordance with section 4915 4915b of this title results in a determination that a report of child abuse or neglect should be substantiated, the department shall notify the person alleged to have abused or neglected a child of the following:

(1)  The nature of the substantiation decision, and that the department intends to enter the record of the substantiation into the registry.

(2)  Who has access to registry information and under what circumstances.

(3)  The implications of having one’s name placed on the registry as it applies to employment, licensure, and registration.

(4)  The right to request a review of the substantiation determination by an administrative reviewer, the time in which the request for review shall be made, and the consequences of not seeking a review.

(5)  The right to receive a copy of the commissioner’s written findings made in accordance with subdivision 4916(a)(2) of this title if applicable.

(b)  Under this section, notice by the department to a person alleged to have abused or neglected a child shall be by first class mail sent to the person’s last known address.

(c)(1)  A person alleged to have abused or neglected a child may seek an administrative review of the department's intention to place the person's name on the registry by notifying the department within 14 days of the date the department mailed notice of the right to review in accordance with subsections (a) and (b) of this section.  The commissioner may grant an extension past the 14-day period for good cause, not to exceed 28 days after the department has mailed notice of the right to review.

(2)  The administrative review may be stayed upon request of the person alleged to have committed abuse or neglect if there is a related case pending in court.  During the period the review is stayed, the person’s name shall be placed on the registry with an additional entry that the substantiation decision has been appealed.  Any authorized individual inquiring whether the person’s name is on the registry shall be informed that the name is on the registry and the substantiation decision has been appealed.  The court where the case is being adjudicated shall inform the registry review unit when the case is concluded.

(d)  The department shall hold an administrative review conference within 14 35 days of receipt of the request for review.  At least seven ten days prior to the administrative review conference, the department shall provide to the person requesting review a copy of the redacted investigation file, notice of time and place of the conference, and conference procedures, including information that may be submitted and mechanisms for providing testimony.  The department shall also provide to the person those redacted investigation files that relate to prior investigations that the department has relied upon to make its substantiation determination in the case in which a review has been requested.

(e)  At the administrative review conference, the person who requested the review shall be provided with the opportunity to present documentary evidence or other information that supports his or her position and provides information to the reviewer in making the most accurate decision regarding the allegation.  The department shall have the burden of proving that it has accurately and reliably concluded that a reasonable person would believe that the child has been abused or neglected by that person.  Upon the person’s request, the conference may be held by teleconference.

(f)  The department shall establish an administrative case review unit within the department and contract for the services of administrative reviewers.  An administrative reviewer shall be a neutral and independent arbiter who has no prior involvement in the original investigation of the allegation. 

(g)  Within seven days of the conference, the administrative reviewer shall:

(1)  reject the department’s substantiation determination;

(2)  accept the department’s substantiation; or

(3)  place the substantiation determination on hold and direct the department to further investigate the case based upon recommendations of the reviewer.

(h)  If the administrative reviewer accepts the department’s substantiation determination, a registry record shall be made immediately.  If the reviewer rejects the department’s substantiation determination, no registry record shall be made.

(i)  Within seven days of the decision to reject or accept or to place the substantiation on hold in accordance with subsection (g) of this section, the administrative reviewer shall provide notice to the person of his or her decision.  If the administrative reviewer accepts the department's substantiation, the notice shall advise the person of the right to appeal the administrative reviewer's decision to the human services board in accordance with section 4916b of this title.

(j)  Persons whose names were placed on the registry on or after January 1, 1992 but prior to July September 1, 2007 shall be entitled to an opportunity to seek an administrative review to challenge the substantiation pursuant to this section.

(k)  If no administrative review is requested, the department’s decision in the case shall be final, and the person shall have no further right of review under this section.  The commissioner may grant a waiver and permit such a review upon good cause shown.  Good cause may include an acquittal or dismissal of a criminal charge arising from the incident of abuse or neglect.

(l)  In exceptional circumstances, the commissioner, in his or her sole and nondelegable discretion, may reconsider any decision made by a reviewer.  A commissioner’s decision that creates a registry record may be appealed to the human services board in accordance with section 4916b of this title.

Sec. 10.  33 V.S.A. § 4916c is amended to read:

§ 4916c.  PETITION FOR EXPUNGEMENT FROM THE REGISTRY

(a)  A person whose name has been placed on the registry prior to July 1, 2009 and has been listed on the registry for at least seven three years may file a written request with the commissioner, seeking a review for the purpose of expunging an individual registry record.  A person whose name has been placed on the registry on or after July 1, 2009 and has been listed on the registry for at least seven years may file a written request with the commissioner, seeking a review for the purpose of expunging an individual registry record.  The commissioner shall grant a review upon request.

(b)  The person shall have the burden of proving that a reasonable person would believe that he or she no longer presents a risk to the safety or well‑being of children.  Factors to be considered by the commissioner shall include:

(1)  The nature of the substantiation that resulted in the person’s name being placed on the registry.

(2)  The number of substantiations, if more than one.

(3)  The amount of time that has elapsed since the substantiation.

(4)  The circumstances of the substantiation that would indicate whether a similar incident would be likely to occur.

(5)  Any activities that would reflect upon the person’s changed behavior or circumstances, such as therapy, employment, or education.

(6)  References that attest to the person’s good moral character.

(c)  At the review, the person who requested the review shall be provided with the opportunity to present any evidence or other information, including witnesses, that supports his or her request for expungement.  Upon the person’s request, the review may be held by teleconference.

(d)  A person may seek a review under this section no more than once every 36 months. 

(e)  Within 30 days of the date on which the commissioner mailed notice of the decision pursuant to this section, a person may appeal the decision to the human services board.  The person shall be prohibited from challenging his or her substantiation at such hearing, and the sole issue before the board shall be whether the commissioner abused his or her discretion in denial of the petition for expungement.  The hearing shall be on the record below, and determinations of credibility of witnesses made by the commissioner shall be given deference by the board.

(f)  The department shall take steps to provide reasonable notice to persons on the registry of their right to seek an expungement under this section.  Actual notice is not required.   Reasonable steps may include activities such as the production of an informative fact sheet about the expungement process, posting of such information on the department website, and other approaches typically taken by the department to inform the public about the department’s activities and policies.  The department shall send notice of the expungement process to any person listed on the registry for whom a registry check has been requested.

Sec. 11.  33 V.S.A. § 4916d is amended to read:

§ 4916d.  AUTOMATIC EXPUNGEMENT OF REGISTRY RECORDS

  OF MINORS

Registry entries concerning a person who was substantiated for behavior occurring before the person reached 10 years of age shall be expunged when the person reaches the age of 18, provided that the person has had no additional substantiated registry entries.  A registry record shall not be made of a person substantiated for behavior occurring before the person reached 11 years of age, except in extraordinary circumstances.  A person substantiated for behavior occurring after the person reached 11 but before 18 years of age and whose name has been listed on the registry for at least three years may file a written request with the commissioner, seeking a review for the purpose of expunging an individual registry record in accordance with section 4916c of this title.  

Sec. 12.  33 V.S.A. § 4917 is amended to read:

§ 4917.  Multi-disciplinary teams; empaneling

(a)  The commissioner of social and rehabilitation services, or his or her designee may empanel a multi-disciplinary team wherever in the state there may be a probable case of child abuse or neglect which warrants the coordinated use of several professional services.

(b)  The commissioner of social and rehabilitation services, or his or her designee, in conjunction with professionals and community agencies, shall appoint members to the multi-disciplinary teams which may include persons who are trained and engaged in work relating to child abuse or neglect such as medicine, mental health, social work, nursing, day child care, education, law or law enforcement.  Additional persons may be appointed when the services of those persons are appropriate to any particular case.

(c)  The empanelling of a multi-disciplinary team shall be authorized in writing and shall specifically list the members of the team.  This list may be amended from time to time as needed as determined by the commissioner or his or her designee.


Sec. 13.  33 V.S.A. § 4918 is amended to read:

§ 4918.  Multi-disciplinary teams; functions; guidelines

(a)  Multi-disciplinary teams shall assist local district offices of the department of social and rehabilitation services in identifying and treating child abuse and or neglect cases.  With respect to any case referred to it, the team shall may assist the district office by providing:

(1)  case diagnosis or identification,;

(2)  a comprehensive treatment plan,; and

(3)  coordination of services pursuant to the treatment plan.

(b)  Multi-disciplinary teams may also provide public informational and educational services to the community about identification, treatment and prevention of child abuse and neglect.  It shall also foster communication and cooperation among professionals and organizations in its community, and provide such recommendations or changes in service delivery as it deems necessary.

Sec. 14.  33 V.S.A. § 4919 is amended to read:

§ 4919.  DISCLOSURE OF INFORMATION REGISTRY RECORDS

(a)  The commissioner or the commissioner’s designee may disclose a registry information record 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, certification, or authorization as set forth in section 309 of this title;.

(3)  To an employer 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 may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer 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 record to the employer;.  The employer shall not disclose the information contained in the registry report.

(4)  To the commissioner commissioners of disabilities, aging, and independent living, and of mental health, or the commissioner’s designee their designees, for purposes related to the licensing or registration of facilities regulated by the department of disabilities, aging, and independent living; those departments.

(5)  To the commissioner commissioners of health or, of disabilities, aging, and independent living, and of mental health, or the commissioner’s designee their designees, 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, those departments, 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.

(8)  To the person substantiated for child abuse and neglect who is the subject of the record.

(b)  An employer providing transportation services to children or vulnerable adults may disclose registry records obtained pursuant to subdivision (a)(3) of this section to the agency of human services or its designee for the sole purpose of auditing the records to ensure compliance with this subchapter.  An employer shall provide such records at the request of the agency or its designee.  Only registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed.

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

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

(f)  In no event shall registry records be made available for employment purposes other than as set forth in this subsection, or for credit purposes.  Any person who violates this subsection shall be fined not more than $500.00.

(g)  Nothing in this subsection shall limit the department’s right to use and disclose information from its records as provided in section 4921 of this chapter.

Sec. 15.  33 V.S.A. § 4920 is amended to read:

§ 4920.  Retaliatory action by employer prohibited

An employer or supervisor shall not discharge, demote, transfer, reduce pay, benefits or work privileges, prepare a negative work performance evaluation or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter. Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

Sec. 16.  33 V.S.A. § 4921 is added to read:

§ 4921.  Department’s Records of abuse and neglect

(a)  The commissioner shall maintain all records of all investigations, assessments, reviews, and responses initiated under this subchapter.  The department may use and disclose information from such records in the usual course of its business, including to assess future risk to children, to provide appropriate services to the child or members of the child’s family, or for other legal purposes.

(b)  The commissioner shall promptly inform the parents, if known, or guardian of the child that a report has been accepted as a valid allegation pursuant to subsection 4915(b) of this title and the department’s response to the report.  The department shall inform the parent or guardian of his or her ability to request records pursuant to subsection (c) of this section.

(c)  Upon request, the redacted investigation file shall be disclosed to:

(1)  the child’s parents, foster parent, or guardian, absent good cause shown by the department, provided that the child’s parent, foster parent, or guardian is not the subject of the investigation; and

(2)  the person alleged to have abused or neglected the child, as provided for in subsection 4916a(d) of this title.

(d)  Upon request, department records created under this subchapter shall be disclosed to:

(1)  the court, parties to the juvenile proceeding, and the child’s guardian ad litem if there is a pending juvenile proceeding or if the child is in the custody of the commissioner;

(2)  the commissioner or person designated by the commissioner to receive such records; 

(3)  persons assigned by the commissioner to conduct investigations;

(4)  law enforcement officers engaged in a joint investigation with the department, an assistant attorney general, or a state’s attorney;

(5)  other state agencies conducting related inquiries or proceedings; and 

(6)  probate courts involved in guardianship proceedings.  The probate court shall provide a copy of the record to the respondent, the respondent’s attorney, the petitioner, the guardian upon appointment, and any other individual, including the proposed guardian, determined by the court to have a strong interest in the welfare of the respondent.

(e)(1)  Upon request, relevant department records created under this subchapter may be disclosed to:

(A)  service providers working with a person or child who is the subject of the report; and

(B)  other governmental entities for purposes of child protection.

(2)  Determinations of relevancy shall be made by the department.

Sec. 17.  33 V.S.A. § 4922 is added to read:

§ 4922.  RULEMAKING

(a)  The commissioner shall develop rules to implement this subchapter. These shall include:

 (1)  rules setting forth criteria for determining whether to conduct an assessment or an investigation;

(2)  rules setting out procedures for assessment and service delivery;

(3)  rules outlining procedures for investigations;

(4)  rules for conducting the administrative review conference;

(5)  rules regarding access to and maintenance of department records of investigations, assessments, reviews, and responses;

(6)  rules regarding the tiered registry as required by section 4916 of this title; and

(7)  rules setting forth criteria for determining what substantiated behavior constitutes extraordinary circumstances for the purpose of placing the name of a person under 11 years of age on the child protection registry.

(b)  The rules shall strike an appropriate balance between protecting children and respecting the rights of a parent or guardian, including a parent or guardian with disabilities, and shall recognize that persons with a disability can be successful parents.  The rules shall include the possible use of adaptive equipment and supports.

(c)  These rules shall be adopted no later than July 1, 2009.

Sec. 18.  33 V.S.A. § 4923 is added to read:

§ 4923.  REPORTING

The commissioner shall publish an annual report regarding reports of child abuse and neglect no later than June 30, for the previous year.  The report shall include:

(1)  The number of reports accepted as valid allegations of child abuse or neglect.

(2)  The number of reports that resulted in an investigative response; particularly:

(A)  the number of investigations which resulted in a substantiation;

(B)  the types of maltreatment substantiated;

(C)  the relationship of the perpetrator to the victim, by category; and

(D)  the gender and age group of the substantiated victims.

(3)  The number of reports that resulted in an assessment response; particularly:

(A)  the general types of maltreatment alleged in cases which received an assessment response; and

(B)  the number of assessments that resulted in the recommendation of services.

(4)  Trend information over a five-year period.  Beginning with the adoption of the assessment response and continuing over the next five years, the report shall explain the impact of the assessment response on statistical reporting.

Sec. 19.  EFFECTIVE DATES

(a)  Sec. 3 of this act shall take effect on January 1, 2009.

(b)  In Sec. 5 of this act, the amendments in 33 V.S.A. § 4915(b), (c), (d), and (e) shall take effect upon adoption of final rules by the department for children and families.

(c)  Sec. 6 of this act shall take effect upon adoption of final rules by the department for children and families.

(d)  Sec. 9 of this act shall take effect on September 1, 2008.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us