SB2246 103RD GENERAL ASSEMBLY

LRB103 30764 KTG 57248 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2246

Introduced 2/10/2023, by Sen. Kimberly A. Lightford

SYNOPSIS AS INTRODUCED:

325 ILCS 5/6	from Ch. 23, par. 2056
325 ILCS 5/7.4	from Ch. 23, par. 2057.4

Sets forth certain protections that must be provided to any subject of an abuse or neglect investigation whenever the Department of Children and Family Services consults with and relies upon the opinion of a medically trained professional as to whether there is evidence of abuse or neglect. Provides that no child or family member of a child who is the subject of an investigation shall be required to submit to additional medical tests, for investigation purposes only, during the investigation. Requires a consulting medical professional who is employed or under contract with the Department to identify himself or herself as a forensic consultant, rather than as a member of the child's treatment team, whenever the individual has direct contact with the child or the family of the child. Provides that the subject of a report shall have the opportunity to submit a second medical opinion as to whether there is evidence of abuse or neglect. Requires the Department to annually prepare and make available on the Department's Reports and Statistics webpage a report on the number of children referred to a consulting medical professional for forensic opinion. Provides that the first report must be posted by March 31, 2024. Sets forth certain data and information that must be contained in the annual report.

A BILL FOR

AN ACT concerning children.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Findings. The General Assembly finds as follows:

(1) Any case involving allegations of child abuse or neglect raise the potential for risk of error and trauma if the determination made at the conclusion of the investigation is incorrect.

(2) The Department relies on the expertise of medical professional consultants in order to understand and assess the validity of hotline calls reporting abuse or neglect. The Department has established contracts and consultations with doctors and other medical professionals for the purpose of obtaining their opinion during child abuse and neglect investigations conducted throughout Illinois in accordance with this Act.

(3) Such contracts and consultations, as currently constituted, include input from law enforcement, county state's attorneys, and other local agencies. A balance of consideration of alternative explanations and information from independent sources has not been developed in Illinois. Consequently, parents, guardians, and others do not have equal access and an ability to contribute potentially dispositive information during a child abuse or neglect investigations.

(4) There is extensive controversy over whether medical conclusions such as "shaken baby syndrome", metaphyseal fractures, Ehlers Danlos syndrome, rickets and Vitamin D deficiency, and Munchausen's Syndrome by Proxy are the causes or contributors to children's reported injuries, symptoms, or conditions. There are many conditions that mimic child abuse. Some common beliefs about child abuse being idiopathic to certain conditions have been shown to be demonstrably false (such as that a triad of conditions necessarily means that a child must have been shaken or that the last person with the child must have been the person who injured the child).

(5) Children with rare diseases and disabilities are particularly at risk of having medical conditions overlooked or misunderstood as child abuse.

(6) As a result of these medical misunderstandings and the lack of up-to-date information grounded in science, innocent parents have been targeted as child abusers and child neglectors, and have been imprisoned, fired, or had their children taken into state custody or their rights of access to their children restricted whenever a person with the title "child abuse pediatrician" contends that the parent's child is abused, even when that opinion is erroneous.

(7) A right as basic as the right to consent to the release of medical records is not adequately protected in the context of any hotline call investigation.

(8) There is currently no limitation on a medical professional's participation in a child abuse or neglect investigation even when the medical professional, or the medical professional's colleague or employment institution, directly participated in the making of the hotline call that triggered the abuse or neglect investigation.

(9) The interest of truth in science, common sense, and justice require that access to objective scientific information should not be the privilege of one side to a reasonable dispute as to medical science.

(10) The State of Illinois currently has no system of independent review of the accuracy of the forensic opinions rendered by child abuse pediatricians who hold contracts through child advocacy centers and hospitals.

(11) Parents report being blindsided and misinformed as to the role of the child abuse pediatrician in many cases, including ones where no abuse was ultimately found.

(12) News reports by NBC News have highlighted cases in which grievous errors in medical opinions rendered by child abuse pediatricians, and relied upon by state agencies during child abuse and neglect investigations, have led to grave injustices that could be remedied with modest procedural protections for the fairness of such investigations.

(13) Doctors take an oath to "first do no harm" but there is no system in the State of Illinois for redressing and mitigating the harm to families who have been the victims of wrongful child abuse or neglect allegations.

Section 5. The Abused and Neglected Child Reporting Act is amended by changing Sections 6 and 7.4 as follows:

(325 ILCS 5/6) (from Ch. 23, par. 2056)

Sec. 6. Any person required to investigate cases of suspected child abuse or neglect may not take or cause to be taken, at Department expense, color photographs and x-rays of the child who is the subject of a report, and color photographs of the physical environment in which the alleged abuse or neglect has taken place, except if there are exigent circumstances, or if there is a need for such photographs or x-rays for emergency treatment of the child, or if the person responsible for the child's welfare gives consent to the taking of such photographs or x-rays. The person seeking to take such photographs or x-rays shall make every reasonable effort to notify the person responsible for the child's welfare. The person required to investigate cases of suspected child abuse or neglect shall not threaten removal of a child or other legal action if the person reasonable for the child's welfare refuses to consent to the taking of photographs or x-rays.

(Source: P.A. 84-611.)

(325 ILCS 5/7.4) (from Ch. 23, par. 2057.4)

Sec. 7.4. (a) The Department shall be capable of receiving reports of suspected child abuse or neglect 24 hours a day, 7 days a week. Whenever the Department receives a report alleging that a child is a truant as defined in Section 26-2a of the School Code, as now or hereafter amended, the Department shall notify the superintendent of the school district in which the child resides and the appropriate superintendent of the educational service region. The notification to the appropriate officials by the Department shall not be considered an allegation of abuse or neglect under this Act.

(a-5) The Department of Children and Family Services may implement a "differential response program" in accordance with criteria, standards, and procedures prescribed by rule. The program may provide that, upon receiving a report, the Department shall determine whether to conduct a family assessment or an investigation as appropriate to prevent or provide a remedy for child abuse or neglect.

For purposes of this subsection (a-5), "family assessment" means a comprehensive assessment of child safety, risk of subsequent child maltreatment, and family strengths and needs that is applied to a child maltreatment report that does not allege substantial child endangerment. "Family assessment" does not include a determination as to whether child maltreatment occurred but does determine the need for services to address the safety of family members and the risk of subsequent maltreatment.

For purposes of this subsection (a-5), "investigation" means fact-gathering related to the current safety of a child and the risk of subsequent abuse or neglect that determines whether a report of suspected child abuse or neglect should be indicated or unfounded and whether child protective services are needed.

Under the "differential response program" implemented under this subsection (a-5), the Department:

(1) Shall conduct an investigation on reports involving substantial child abuse or neglect.

(2) Shall begin an immediate investigation if, at any time when it is using a family assessment response, it determines that there is reason to believe that substantial child abuse or neglect or a serious threat to the child's safety exists.

(3) May conduct a family assessment for reports that do not allege substantial child endangerment. In determining that a family assessment is appropriate, the Department may consider issues, including, but not limited to, child safety, parental cooperation, and the need for an immediate response.

(4) Shall promulgate criteria, standards, and procedures that shall be applied in making this determination, taking into consideration the Child Endangerment Risk Assessment Protocol of the Department.

(5) May conduct a family assessment on a report that was initially screened and assigned for an investigation.

In determining that a complete investigation is not required, the Department must document the reason for terminating the investigation and notify the local law enforcement agency or the Illinois State Police if the local law enforcement agency or Illinois State Police is conducting a joint investigation.

Once it is determined that a "family assessment" will be implemented, the case shall not be reported to the central register of abuse and neglect reports.

During a family assessment, the Department shall collect any available and relevant information to determine child safety, risk of subsequent abuse or neglect, and family strengths.

Information collected includes, but is not limited to, when relevant: information with regard to the person reporting the alleged abuse or neglect, including the nature of the reporter's relationship to the child and to the alleged offender, and the basis of the reporter's knowledge for the report; the child allegedly being abused or neglected; the alleged offender; the child's caretaker; and other collateral sources having relevant information related to the alleged abuse or neglect. Information relevant to the assessment must be asked for, and may include:

(A) The child's sex and age, prior reports of abuse or neglect, information relating to developmental functioning, credibility of the child's statement, and whether the information provided under this paragraph (A) is consistent with other information collected during the course of the assessment or investigation.

(B) The alleged offender's age, a record check for prior reports of abuse or neglect, and criminal charges and convictions. The alleged offender may submit supporting documentation relevant to the assessment.

(C) Collateral source information regarding the alleged abuse or neglect and care of the child. Collateral information includes, when relevant: (i) a medical examination of the child; (ii) prior medical records relating to the alleged maltreatment or care of the child maintained by any facility, clinic, or health care professional, and an interview with the treating professionals; and (iii) interviews with the child's caretakers, including the child's parent, guardian, foster parent, child care provider, teachers, counselors, family members, relatives, and other persons who may have knowledge regarding the alleged maltreatment and the care of the child.

(D) Information on the existence of domestic abuse and violence in the home of the child, and substance abuse.

Nothing in this subsection (a-5) precludes the Department from collecting other relevant information necessary to conduct the assessment or investigation. Nothing in this subsection (a-5) shall be construed to allow the name or identity of a reporter to be disclosed in violation of the protections afforded under Section 7.19 of this Act.

After conducting the family assessment, the Department shall determine whether services are needed to address the safety of the child and other family members and the risk of subsequent abuse or neglect.

Upon completion of the family assessment, if the Department concludes that no services shall be offered, then the case shall be closed. If the Department concludes that services shall be offered, the Department shall develop a family preservation plan and offer or refer services to the family.

At any time during a family assessment, if the Department believes there is any reason to stop the assessment and conduct an investigation based on the information discovered, the Department shall do so.

The procedures available to the Department in conducting investigations under this Act shall be followed as appropriate during a family assessment.

If the Department implements a differential response program authorized under this subsection (a-5), the Department shall arrange for an independent evaluation of the program for at least the first 3 years of implementation to determine whether it is meeting the goals in accordance with Section 2 of this Act.

The Department may adopt administrative rules necessary for the execution of this Section, in accordance with Section 4 of the Children and Family Services Act.

The Department shall submit a report to the General Assembly by January 15, 2018 on the implementation progress and recommendations for additional needed legislative changes.

(b)(1) The following procedures shall be followed in the investigation of all reports of suspected abuse or neglect of a child, except as provided in subsection (c) of this Section.

(2) If, during a family assessment authorized by subsection (a-5) or an investigation, it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child disappear, or that the facts otherwise so warrant, the Child Protective Service Unit shall commence an investigation immediately, regardless of the time of day or night. All other investigations shall be commenced within 24 hours of receipt of the report. Upon receipt of a report, the Child Protective Service Unit shall conduct a family assessment authorized by subsection (a-5) or begin an initial investigation and make an initial determination whether the report is a good faith indication of alleged child abuse or neglect.

(3) Based on an initial investigation, if the Unit determines the report is a good faith indication of alleged child abuse or neglect, then a formal investigation shall commence and, pursuant to Section 7.12 of this Act, may or may not result in an indicated report. The formal investigation shall include: direct contact with the subject or subjects of the report as soon as possible after the report is received; an evaluation of the environment of the child named in the report and any other children in the same environment; a determination of the risk to such children if they continue to remain in the existing environments, as well as a determination of the nature, extent and cause of any condition enumerated in such report; the name, age and condition of other children in the environment; and an evaluation as to whether there would be an immediate and urgent necessity to remove the child from the environment if appropriate family preservation services were provided. After seeing to the safety of the child or children, the Department shall forthwith notify the subjects of the report in writing, of the existence of the report and their rights existing under this Act in regard to amendment or expungement. To fulfill the requirements of this Section, the Child Protective Service Unit shall have the capability of providing or arranging for comprehensive emergency services to children and families at all times of the day or night.

(4) If (i) at the conclusion of the Unit's initial investigation of a report, the Unit determines the report to be a good faith indication of alleged child abuse or neglect that warrants a formal investigation by the Unit, the Department, any law enforcement agency or any other responsible agency and (ii) the person who is alleged to have caused the abuse or neglect is employed or otherwise engaged in an activity resulting in frequent contact with children and the alleged abuse or neglect are in the course of such employment or activity, then the Department shall, except in investigations where the Director determines that such notification would be detrimental to the Department's investigation, inform the appropriate supervisor or administrator of that employment or activity that the Unit has commenced a formal investigation pursuant to this Act, which may or may not result in an indicated report. The Department shall also notify the person being investigated, unless the Director determines that such notification would be detrimental to the Department's investigation.

(c) In an investigation of a report of suspected abuse or neglect of a child by a school employee at a school or on school grounds, the Department shall make reasonable efforts to follow the following procedures:

(1) Investigations involving teachers shall not, to the extent possible, be conducted when the teacher is scheduled to conduct classes. Investigations involving other school employees shall be conducted so as to minimize disruption of the school day. The school employee accused of child abuse or neglect may have his superior, his association or union representative and his attorney present at any interview or meeting at which the teacher or administrator is present. The accused school employee shall be informed by a representative of the Department, at any interview or meeting, of the accused school employee's due process rights and of the steps in the investigation process. These due process rights shall also include the right of the school employee to present countervailing evidence regarding the accusations. In an investigation in which the alleged perpetrator of abuse or neglect is a school employee, including, but not limited to, a school teacher or administrator, and the recommendation is to determine the report to be indicated, in addition to other procedures as set forth and defined in Department rules and procedures, the employee's due process rights shall also include: (i) the right to a copy of the investigation summary; (ii) the right to review the specific allegations which gave rise to the investigation; and (iii) the right to an administrator's teleconference which shall be convened to provide the school employee with the opportunity to present documentary evidence or other information that supports his or her position and to provide information before a final finding is entered.

(2) If a report of neglect or abuse of a child by a teacher or administrator does not involve allegations of sexual abuse or extreme physical abuse, the Child Protective Service Unit shall make reasonable efforts to conduct the initial investigation in coordination with the employee's supervisor.

If the Unit determines that the report is a good faith indication of potential child abuse or neglect, it shall then commence a formal investigation under paragraph (3) of subsection (b) of this Section.

(3) If a report of neglect or abuse of a child by a teacher or administrator involves an allegation of sexual abuse or extreme physical abuse, the Child Protective Unit shall commence an investigation under paragraph (2) of subsection (b) of this Section.

(c-5) In any instance in which a report is made or caused to made by a school district employee involving the conduct of a person employed by the school district, at the time the report was made, as required under Section 4 of this Act, the Child Protective Service Unit shall send a copy of its final finding report to the general superintendent of that school district.

(c-10) The Department may recommend that a school district remove a school employee who is the subject of an investigation from his or her employment position pending the outcome of the investigation; however, all employment decisions regarding school personnel shall be the sole responsibility of the school district or employer. The Department may not require a school district to remove a school employee from his or her employment position or limit the school employee's duties pending the outcome of an investigation.

(d) If the Department has contact with an employer, or with a religious institution or religious official having supervisory or hierarchical authority over a member of the clergy accused of the abuse of a child, in the course of its investigation, the Department shall notify the employer or the religious institution or religious official, in writing, when a report is unfounded so that any record of the investigation can be expunged from the employee's or member of the clergy's personnel or other records. The Department shall also notify the employee or the member of the clergy, in writing, that notification has been sent to the employer or to the appropriate religious institution or religious official informing the employer or religious institution or religious official that the Department's investigation has resulted in an unfounded report.

(d-1) Whenever a report alleges that a child was abused or neglected while receiving care in a hospital, including a freestanding psychiatric hospital licensed by the Department of Public Health, the Department shall send a copy of its final finding to the Director of Public Health and the Director of Healthcare and Family Services.

(d-2) In any investigation conducted in accordance with this Act during which the Department consults with and relies upon a medically trained professional as to whether abuse or neglect is considered likely, to a reasonable degree of medical certainty, the following protections shall be provided to any subject of the investigation:

(A) No child or family member of a child who is the subject of an investigation shall be required to submit to additional medical tests, for investigation purposes only, during the investigation. The risks associated with any recommended test must be fully disclosed to the child's custodial parent or guardian during the investigation. Nothing in this paragraph shall be read to preclude those medical tests that are medically necessary for the child's treatment.

(B) If a consulting medical professional is employed, in whole or in part, by the Department or receives referrals in the course of an investigation pursuant to any contract, memorandum of understanding, or direct request by an investigator, such individual must identify himself or herself as a forensic consultant, rather than as a member of the child's treatment team, whenever the individual has direct contact with the child or the family of the child. The individual must also provide the child's guardian with accurate information about the medical specialties that the individual holds.

(C) The subject of the investigation shall be afforded the opportunity to identify all medical professionals who have examined or treated the child during the previous 12-month period prior to the hotline call and, with the subject's consent, such medical professionals shall be afforded the opportunity to submit information for consideration by the Department prior to the conclusion of the investigation.

(D) The subject of the investigation shall be afforded the reasonable opportunity to submit a second medical opinion to the Department or to request that the Department allow time for the subject to obtain and submit second independent opinions from medical professionals. A request for a second medical opinion shall be considered good cause to toll deadlines for completion of an investigation.

(E) Except if there are exigent circumstances, the subject of the investigation shall be provided the identity, credentials, and opinions of other professionals the consulted medical professional relies upon in rendering an opinion as to the likelihood of abuse or neglect, and the written opinion of such person shall be provided, upon the conclusion of the investigation (with due allowance for redactions as otherwise provided under this Act).

(F) The Department shall annually prepare and make available on the Department's Reports and Statistics webpage a report on the number of children referred to a consulting medical professional for forensic opinion. The first report must be posted by March 31, 2024. The report shall contain the following information:

(i) Total number of abuse or neglect cases that were substantiated by the court.

(ii) Total number of abuse or neglect cases that the Department determined were unfounded.

(iii) Total number of abuse or neglect cases that the Department determined were indicated, but were not sent to the court.

(I) Data on the subset of those indicated cases that were appealed and the outcomes of those appeals.

(II) Data on the subset of those cases that the Department determined were indicated but with an unknown perpetrator.

(iv) Compile the information collected under items (i) through (iii) by individual provider.

(v) Compile the information collected under items (i) through (iii) by medical diagnosis.

(vi) Compile the information collected under items (i) through (iii) by county.

(vii) Compile the information collected under items (i) through (iii) by race.

(viii) Compile the information collected under items (i) through (iii) by gender (of the child).

(ix) Compile the information collected under items (i) through (iii) by children with safety plans and children put in protective custody.

(e) Upon request by the Department, the Illinois State Police and law enforcement agencies are authorized to provide criminal history record information as defined in the Illinois Uniform Conviction Information Act and information maintained in the adjudicatory and dispositional record system as defined in Section 2605-355 of the Illinois State Police Law to properly designated employees of the Department of Children and Family Services if the Department determines the information is necessary to perform its duties under the Abused and Neglected Child Reporting Act, the Child Care Act of 1969, and the Children and Family Services Act. The request shall be in the form and manner required by the Illinois State Police. Any information obtained by the Department of Children and Family Services under this Section is confidential and may not be transmitted outside the Department of Children and Family Services other than to a court of competent jurisdiction or unless otherwise authorized by law. Any employee of the Department of Children and Family Services who transmits confidential information in violation of this Section or causes the information to be transmitted in violation of this Section is guilty of a Class A misdemeanor unless the transmittal of the information is authorized by this Section or otherwise authorized by law.

(f) For purposes of this Section, "child abuse or neglect" includes abuse or neglect of an adult resident as defined in this Act.

(Source: P.A. 101-43, eff. 1-1-20; 102-538, eff. 8-20-21.)