§ 427-a. Differential response programs for child protection
assessments or investigations. 1. Any social services district may,
upon the authorization of the office of children and family services,
establish a program that implements differential responses to reports of
child abuse and maltreatment. Such programs shall create a family
assessment and services track as an alternative means of addressing
certain matters otherwise investigated as allegations of child abuse or
maltreatment pursuant to this title. Notwithstanding any other provision
of law to the contrary, the provisions of this section shall apply only
to those cases involving allegations of abuse or maltreatment in family
settings expressly included in the family assessment and services track
of the differential response program, and only in those social services
districts authorized by the office of children and family services to
implement a differential response program. Such cases shall not be
subject to the requirements otherwise applicable to cases reported to
the statewide central register of child abuse and maltreatment pursuant
to this title, except as set forth in this section.

2. Any social services district interested in implementing a
differential response program shall apply to the office of children and
family services for permission to participate. The criteria for a social
services district to participate will be determined by the office of
children and family services after consultation with the office for the
prevention of domestic violence, however the social services district's
application must include a plan setting forth the following:

(a) in conjunction with any additional requirements imposed by the
office of children and family services and the provisions of this
subdivision, the factors to be considered by the social services
district in determining which cases will be addressed through the family
assessment and services track and the size of the population to be the
subject of the differential response program;

(b) the types of services and interventions to be provided to families
included in the family assessment and services track and a description
of how the services will be offered;

(c) a description of the process to be followed for planning and
monitoring the services provided under the family assessment and
services track;

(d) a description of how the principles of family involvement and
support consistent with maintaining the safety of the child will be
implemented in the family assessment and services track;

(e) a description of how the differential response program will
enhance the ability of the district to protect children, maintain the
safety of children and preserve families;

(f) a description of how the district will reduce the involvement of
government agencies with families and maintain the safety of children
through the use of community resources;

(g) a description of the staff resources proposed to be used in the
family assessment and services track, including the proposed staff
workloads and qualifications;

(h) a description of the training that will be provided to district
and any non-district staff to be used in the differential response
program including, but not limited to, a description of the training
involving maintaining the safety and well-being of children and any
cross training planned for family assessment and investigative staff;

(i) a description of the community resources that are proposed to be
used in the family assessment and services track;

(j) a description of any additional funding that may be utilized to
enhance the differential response program; and

(k) a description of the protocol to be followed for handling cases
where domestic violence is present in order to maintain the safety of
the child through the family assessment and services track.

3. The criteria for determining which cases may be placed in the
assessment track shall be determined by the local department of social
services, in conjunction with the office of children and family services
and after consultation with the office for the prevention of domestic
violence. Provided, however, that reports including any of the following
allegations shall not be included in the assessment track of a
differential response program:

(a) reports alleging that the subject committed or allowed to be
committed an offense defined in article one hundred thirty of the penal
law;

(b) reports alleging that the subject allowed, permitted or encouraged
a child to engage in any act described in sections 230.25, 230.30 and
230.32 of the penal law;

(c) reports alleging that the subject committed any of the acts
described in section 255.25, 255.26 or 255.27 of the penal law;

(d) reports alleging that the subject allowed a child to engage in
acts or conduct described in article two hundred sixty-three of the
penal law;

(e) reports alleging that the subject committed assault in the first,
second or third degree against a child;

(f) reports alleging that the subject committed or attempted to commit
murder or manslaughter in the first or second degree;

(g) reports alleging that the subject abandoned a child pursuant to
subdivision five of section three hundred eighty-four-b of this article;

(h) reports alleging that the subject has subjected a child to severe
or repeated abuse as those terms are defined in paragraphs (a) and (b)
of subdivision eight of section three hundred eighty-four-b of this
article; and

(i) reports alleging that the subject has neglected a child so as to
substantially endanger the child's physical or mental health, including
a growth delay, which may be referred to as failure to thrive, that has
been diagnosed by a physician and is due to parental neglect.

4. The following procedures shall be followed for all cases included
in the family assessment and services track:

(a) Reports taken at the statewide central register of child abuse and
maltreatment shall be transmitted to the appropriate local child
protective service.

(b) A social services district permitted by the office of children and
family services to participate in the implementation of a differential
response program shall, consistent with the criteria developed pursuant
to subdivision three of this section, identify those reports which are
initially eligible to be included in the family assessment and services
track.

(c) For those reports which are included in the family assessment and
services track, the social services district shall not be subject to the
requirements of this title concerning initial investigation of reports
of suspected abuse and maltreatment of children, including notification
requirements. For reports assigned to the family assessment and services
track, the social services district shall be responsible for ensuring
that the children are safe in their homes. Such safety assessment shall
be commenced within twenty-four hours of receipt of the report and
completed within seven days. Based on the initial safety assessment, the
district shall determine if the report shall continue under the family
assessment and services track. This safety assessment must be documented
in the manner specified by the office of children and family services.
Should the children be found to be safe in the home, the social services
district shall then identify service needs and family issues, if any,
that should be addressed.

(i) Where the social services district determines, based on the
initial safety assessment, that the report is appropriate to be included
in the family assessment and services track, the social services
district shall document the reason for that determination in the initial
safety assessment and inform the statewide central register of child
abuse and maltreatment that the report is part of the family assessment
and services track and request that the records of the statewide central
register of child abuse and maltreatment of such report be classified as
an assessment track case and be legally sealed. Such sealed reports
shall be maintained at the statewide central register of child abuse and
maltreatment for ten years after the report was made. Access to reports
assigned to, and records created under the family assessment and
services track and information concerning such reports and records is
governed by paragraph (d) of subdivision five of this section.

(ii) Where the social services district determines, based on the
initial safety assessment, to investigate the report as a report of
suspected child abuse or maltreatment, the social services district
shall document the reason for that decision in the initial safety
assessment. Where the social services district makes the determination
to investigate the report, all of the requirements of this title
concerning investigations of reports of suspected child abuse and
maltreatment shall apply, including the notification requirements. The
report shall no longer be eligible to be included in the family
assessment and services track.

(d) Where the social services district has determined that a case is
appropriate to be included in the family assessment and services track,
the district's activities shall include, at a minimum, the following:

(i) the provision of written notice to each parent, guardian or other
person legally responsible for the child or children participating in
the family assessment and services track explaining that it is the
intent of the social services district to meet the needs of the family
without engaging in a traditional child protective services
investigation. The notice shall also explain that the workers assisting
the family in the family assessment and services track are mandated
reporters who are required to report suspected child abuse or
maltreatment and that those workers are required to report new
information that they receive in their work with the family if that
information gives them reasonable cause to suspect that a child in the
family is an abused or maltreated child;

(ii) an examination, with the family, of the family's strengths,
concerns and needs;

(iii) where appropriate, an offer of assistance which shall include
case management that is supportive of family stabilization;

(iv) the planning and provision of services responsive to the service
needs of the family; and

(v) an on-going joint evaluation and assessment of the family's
progress including ongoing, periodic assessments of risk to the child.

(e) After the social services district has received a report of
suspected maltreatment and determined that the report is initially
eligible to be included in the family assessment and services track,
pursuant to paragraph (b) of this subdivision, the activities described
in paragraphs (c) and (d) of this subdivision may be performed by the
social services district directly or through any other method currently
utilized by social services districts to obtain preventive services for
children and families. If a community-based agency determines, pursuant
to subparagraph (ii) of paragraph (c) of this subdivision, that a report
must be investigated as a case of suspected child abuse or maltreatment,
the community-based agency shall so inform the social services district,
which shall then become responsible for conducting the child protective
services investigation in accordance with the requirements of this
title.

(f) A report selected for inclusion in the demonstration project shall
cease to be eligible for inclusion in the demonstration project if at
any time in the course of providing services the district or
community-based agency finds that:

(i) there is evidence of child abuse, including sexual abuse; or

(ii) the parent or parents refuse to cooperate with the district or
community-based agency in developing or implementing a plan to address
the family problems or issues and there is evidence of maltreatment of a
child.

(g) Where the district finds or is advised by a community-based
agency, subsequent to the completion of the initial safety assessment
and after the report is legally sealed, that the report is no longer
eligible for inclusion in the demonstration project pursuant to
paragraph (f) of this subdivision, the district shall contact the
statewide central register of child abuse and maltreatment and make a
new report of suspected child abuse or maltreatment pursuant to section
four hundred thirteen of this title.

(h) Where a report has been included in the family assessment and
services track and a subsequent report involving the family is made to
the statewide central register of child abuse and maltreatment, and such
subsequent report is not eligible for inclusion in the family assessment
and services track, the local child protective services, in conducting
its investigation, shall work cooperatively with any district or
community-based agency staff that are already working with the family to
minimize to the extent practicable the chance that existing services
being provided to the family will be disrupted and to maximize to the
extent practicable the coordination of the existing services being
provided to the family with any new services to be provided to the
family.

5. (a) Cases included in the family assessment and services track
shall not be subject to the requirements of section four hundred nine-e
or four hundred nine-f of this article.

(b) All records created as part of the family assessment and services
track shall include, but not be limited to, documentation of the initial
safety assessment, the examination of the family's strengths, concerns
and needs, all services offered and accepted by the family, the plan for
supportive services for the family, all evaluations and assessments of
the family's progress, and all periodic risk assessments.

(c) Records created under the family assessment and services track
shall be maintained for ten years after the report initiating the case
at the statewide central register was made.

(d) All reports assigned to, and records created under, the family
assessment and services track, including but not limited to reports made
or written as well as any other information obtained or photographs
taken concerning such reports or records shall be confidential and shall
be made available only to:

(i) staff of the office of children and family services and persons
designated by the office of children and family services;

(ii) the social services district responsible for the family
assessment and services track case;

(iii) community-based agencies that have contracts with the social
services district to carry out activities for the district under the
family assessment and services track;

(iv) providers of services under the family assessment and services
track;

(v) any social services district investigating a subsequent report of
abuse or maltreatment involving the same subject or the same child or
children named in the report;

(vi) a court, but only while the family is receiving services provided
under the family assessment and services track and only pursuant to a
court order or judicial subpoena, issued after notice and an opportunity
for the subject of the report and all parties to the present proceeding
to be heard, based on a judicial finding that such reports, records, and
any information concerning such reports and records, are necessary for
the determination of an issue before the court. Such reports, records
and information to be disclosed pursuant to a judicial subpoena shall be
submitted to the court for inspection and for such directions as may be
necessary to protect confidentiality, including but not limited to
redaction of portions of the reports, records, and information and to
determine any further limits on redisclosure in addition to the
limitations provided for in this title. A court shall not have access to
the sealed family assessment and services reports, records, and any
information concerning such reports and records, after the conclusion of
services provided under the family assessment and services track; and

(vii) the subject of the report included in the records of the family
assessment and services track.

(e) Persons given access to sealed reports, records, and any
information concerning such reports and records, pursuant to paragraph
(d) of this subdivision shall not redisclose such reports, records and
information except as follows:

(i) the office of children and family services and social services
districts may disclose aggregate, non-client identifiable information;

(ii) social services districts, community-based agencies that have
contracts with a social services district to carry out activities for
the district under the family assessment and services track, and
providers of services under the family assessment and services track,
may exchange such reports, records and information concerning such
reports and records as necessary to carry out activities and services
related to the same person or persons addressed in the records of a
family assessment and services track case;

(iii) the child protective service of a social services district may
unseal a report, record and information concerning such report and
record of a case under the family assessment and services track in the
event such report, record or information is relevant to a subsequent
report of suspected child abuse or maltreatment. Information from such
an unsealed report or record that is relevant to the subsequent report
of suspected child abuse and maltreatment may be used by the child
protective service for purposes of investigation and family court action
concerning the subsequent report and may be included in the record of
the investigation of the subsequent report. If the social services
district initiates a proceeding under article ten of the family court
act in connection with such a subsequent report of suspected child abuse
and maltreatment and there is information in the report or record of a
previous case under the family assessment and services track that is
relevant to the proceeding, the social services district shall include
such information in the record of the investigation of the subsequent
report of suspected child abuse or maltreatment and shall make that
information available to the family court and the other parties for use
in such proceeding provided, however, that the information included from
the previous case under the family assessment and services track shall
then be subject to all laws and regulations regarding confidentiality
that apply to the record of the investigation of such subsequent report
of suspected child abuse or maltreatment. The family court may consider
the information from the previous case under the family assessment and
services track that is relevant to such proceeding in making any
determinations in the proceeding; and

(iv) a subject of the report may, at his or her discretion, present a
report, records and information concerning such report and records from
the family assessment and services track case, in whole or in part, in
any proceeding under article ten of the family court act in which the
subject is a respondent. A subject of the report also may, at his or her
discretion, present a report, records and information concerning such
report and records from the family assessment and services track, in
whole or in part, in any proceeding involving the custody of, or
visitation with the subject's children, or in any other relevant
proceeding. In making any determination in such a proceeding, the court
may consider any portion of the family assessment and service track
report, records and any information concerning such report and records
presented by the subject of the report that is relevant to the
proceeding. Nothing in this subparagraph, however, shall be interpreted
to authorize a court to order the subject to produce such report,
records or information concerning such report and records, in whole or
in part.

6. Expenditures by a social services district pursuant to this section
shall be reimbursable from the annual appropriations available for
social services district expenditures for child welfare services which
shall include, but not be limited to, preventive services provided
pursuant to section four hundred nine-a of this article, child
protective services, independent living services and any other
appropriation made specifically to support these differential response
programs. Nothing shall preclude a social services district from seeking
private funds for support of their differential response programs.

7. The office of children and family services shall post the plan
contained in any application approved for implementation of a
differential response program on the office of children and family
services website within sixty days of such approval.

8. The office of children and family services shall report on the
differential response programs established pursuant to this section as
part of the annual report required pursuant to section four hundred
twenty-six of this title.