The Vermont Statutes Online

Title 33 : Human Services

Chapter 049 : Child Welfare Services

Subchapter 002 : REPORTING ABUSE OF CHILDREN

• § 4916a. Challenging substantiation

  (a) If an investigation conducted in accordance with section 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 Registry child protection level designation to be assigned to the person and the date that the person is eligible to seek expungement based on the designation level;

  (5) 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;

  (6) 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; and

  (7) ways to contact the Department for any further information.

  (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 mailing address, or if requested by the person, to the person’s email address collected during the Department’s investigation pursuant to subdivision 4915b(a)(4) of this title. The Department shall maintain a record of the notification, including who sent the notification, the date it is sent, and the address to which it is sent.

  (c)(1) A person whose conduct is the subject of a substantiation determination may seek an administrative review of the Department’s determination by notifying the Department within 30 days after the date the Department sent notice of the right to review in accordance with subsections (a) and (b) of this section. The Commissioner may grant an extension past the 30-day period for good cause, not to exceed 60 days after the Department has sent notice of the right to review.

  (2) The administrative review may be stayed upon request of the person whose conduct is the subject of a substantiation determination if there is a related case pending in the Criminal or Family Division of the Superior Court that arose out of the same incident of abuse or neglect for which the person’s conduct was substantiated or led to placement on the Registry. During the period the review is stayed, the person’s name shall be placed on the Registry. Upon resolution of the Superior Court criminal or family case, the person may exercise the person’s right to review under this section by notifying the Department in writing within 30 days after the related court case, including any appeals, has been fully adjudicated. If the person fails to notify the Department within 30 days, the Department’s decision shall become final and no further review under this subsection is required.

  (d)(1) Except as provided in this subsection, the Department shall schedule an administrative review conference within 60 days after receipt of the request for review. At least 20 days prior to the administrative review conference, the Department shall provide to the person requesting review a copy of the redacted investigation file, which shall contain sufficient unredacted information to describe the allegations and the evidence relied upon as the basis of the substantiation, notice of time and place of the conference, and conference procedures, including information that may be submitted and mechanisms for providing information. There shall be no subpoena power to compel witnesses to attend a Registry review conference. 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. If an administrative review conference is not held within 60 days after receipt of the request to review, due to good cause shown, an extension may be authorized by the Commissioner or designee in which the basis of the failure is explained.

  (2) The Department may elect to not hold an administrative review conference when a person who has requested a review does not respond to Department requests to schedule the review meeting or does not appear for the scheduled review meeting. In these circumstances, unless good cause is shown, the Department’s substantiation shall be accepted and the person’s name shall be placed on the Registry, if applicable. Upon the Department’s substantiation being accepted, the Department shall provide notice that advises the person of the right to appeal the substantiation determination to the Human Services Board pursuant to section 4916b of this title.

  (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 the person’s position and provides information to the reviewer in making the most accurate decision regarding the allegation. The Department shall have the burden of proving by a preponderance of the evidence that the child has been abused or neglected by that person. Upon the person’s request or during a declared state of emergency in Vermont, the conference may be held through a live, interactive, audio-video connection or by telephone.

  (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. Department information pertaining to the investigation that is obtained by the reviewer outside of the review meeting shall be disclosed to the person seeking the review.

  (g) Within seven days after 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 after the decision to reject, 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 the reviewer’s decision to the most recent address provided by the person. 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 September 1, 2007 shall be entitled to an opportunity to seek an administrative review to challenge the substantiation.

  (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. (Added 2007, No. 77, § 1, eff. Sept. 1, 2007; amended 2007, No. 168 (Adj. Sess.), § 9, eff. Sept. 1, 2008; 2009, No. 154 (Adj. Sess.), § 221; 2015, No. 92 (Adj. Sess.), § 1, eff. May 10, 2016; 2023, No. 154 (Adj. Sess.), § 6, eff. September 1, 2024.)