SCHOOL COUNSELOR SCHOOL COUNSELOR LIABILITY AND CHILD ABUSE LIABILITY AND CHILD ABUSE

REPORTINGREPORTING

History of Mandated ReportingHistory of Mandated Reporting Dr. C. Henry Kempe – pediatrician alarmed at Dr. C. Henry Kempe – pediatrician alarmed at

inordinate # of nonaccidental injuries in his inordinate # of nonaccidental injuries in his practicepractice

1961 – hosted American Academy of 1961 – hosted American Academy of Pediatrics Symposium on child abuse – drew Pediatrics Symposium on child abuse – drew widespread attention to the epidemic of child widespread attention to the epidemic of child abuseabuse

Dr. Kempe coined phrase “battered child Dr. Kempe coined phrase “battered child syndrome”syndrome”

By late 1960s, because of Dr. Kempe’s work, all By late 1960s, because of Dr. Kempe’s work, all states had enacted child abuse mandated reporting states had enacted child abuse mandated reporting statutes requiring physicians to report suspected child statutes requiring physicians to report suspected child abuse/neglect to authoritiesabuse/neglect to authorities

Dr. Kempe’s work led to Congress enacting Child Dr. Kempe’s work led to Congress enacting Child Abuse Prevention & Treatment Act of 1974Abuse Prevention & Treatment Act of 1974

By late 1970s, state mandated reporting statutes By late 1970s, state mandated reporting statutes were expanded to include other professionals, were expanded to include other professionals, including school personnel such as teachers and including school personnel such as teachers and school counselorsschool counselors

Why include school personnel?Why include school personnel? On the frontlines -- with children every dayOn the frontlines -- with children every day Highly unique profession, having daily, consistent, Highly unique profession, having daily, consistent,

ongoing contact with children, allowing school ongoing contact with children, allowing school personnel to notice even subtle changes in personnel to notice even subtle changes in studentsstudents

Many say school personnel are in best position to Many say school personnel are in best position to observe signs of possible child abuse/neglectobserve signs of possible child abuse/neglect

StatisticsStatistics 4 children die each day due to child 4 children die each day due to child

abuse/neglectabuse/neglect 3 million reports of suspected child 3 million reports of suspected child

abuse/neglect in 2005abuse/neglect in 2005 But actual incidence of abuse estimated by But actual incidence of abuse estimated by

experts to be 3 times that numberexperts to be 3 times that number Experts note that child abuse is significantly Experts note that child abuse is significantly

underreportedunderreported

Rate at which school personnel report Rate at which school personnel report suspected abuse/neglect simply not suspected abuse/neglect simply not consistent with daily contact with children & consistent with daily contact with children & known prevalence of child abuseknown prevalence of child abuse

While school personnel in general have been While school personnel in general have been shown to underreport child abuse/neglect, shown to underreport child abuse/neglect, school counselors in particular have been school counselors in particular have been said to be among the worst offenders in failing said to be among the worst offenders in failing to report suspected abuse/neglectto report suspected abuse/neglect

School counselors fail to report and thus underreport School counselors fail to report and thus underreport abuse/neglect despite fact that counselors state that abuse/neglect despite fact that counselors state that encountering suspected cases of abuse/neglect is a encountering suspected cases of abuse/neglect is a common occurrencecommon occurrence

School counselors have expressed anxiety & fear School counselors have expressed anxiety & fear when confronted with having to decide whether to when confronted with having to decide whether to report a case of suspected abuse/neglectreport a case of suspected abuse/neglect

In fact, child abuse reporting is 2In fact, child abuse reporting is 2ndnd most frequently most frequently cited ethical dilemma encountered by school cited ethical dilemma encountered by school counselors, with 1counselors, with 1stst being suicide determinations being suicide determinations

Reasons for Fail ing to ReportReasons for Fail ing to Report School counselors consistently cite fear of School counselors consistently cite fear of

being sued by parents/guardians/alleged being sued by parents/guardians/alleged perpetrators for reporting suspected abuse perpetrators for reporting suspected abuse that is later found to have been that is later found to have been unsubstantiatedunsubstantiated

This is a grave misconceptionThis is a grave misconception In In ALLALL states, it is FAILURE TO REPORT states, it is FAILURE TO REPORT

that triggers liability, NOT reporting what turns that triggers liability, NOT reporting what turns out to be an inaccurate reportout to be an inaccurate report

Statutory Liabil i ty/Criminal Liabil i tyStatutory Liabil i ty/Criminal Liabil i ty for failure to for failure to report -- in all states – failure to report is a report -- in all states – failure to report is a misdemeanor – punishment varies state to state, misdemeanor – punishment varies state to state, ranging from 10 day – 1 year jail sentence and/or ranging from 10 day – 1 year jail sentence and/or $500 - $1000 fine$500 - $1000 fine

Immunity from l iabil i tyImmunity from l iabil i ty exists in all states -- even if exists in all states -- even if it is later established that no abuse/neglect existed, it is later established that no abuse/neglect existed, school counselors are immune from liability for school counselors are immune from liability for reporting suspected abuse/neglect so long as their reporting suspected abuse/neglect so long as their report was made in good faithreport was made in good faith

Another reason cited for failure to report suspected Another reason cited for failure to report suspected abuse/neglect is fear of job lossabuse/neglect is fear of job loss

While in some states, school counselors can and While in some states, school counselors can and have faced disciplinary action, job termination, and have faced disciplinary action, job termination, and professional license suspension or loss, for filing professional license suspension or loss, for filing report that later turns out to be unsupported, in MA, report that later turns out to be unsupported, in MA, the mandatory reporting statute fully protects school the mandatory reporting statute fully protects school counselorscounselors

In MA, again, so long as report was made in good In MA, again, so long as report was made in good faith, school system cannot “discharge, or in any faith, school system cannot “discharge, or in any manner discriminate or retaliate against” a school manner discriminate or retaliate against” a school employee who makes a good faith reportemployee who makes a good faith report

Civil l iabil i ty for fai lure to reportCivil l iabil i ty for fai lure to report – some states – some states have allowed mandated reporters to be sued by have allowed mandated reporters to be sued by parents/guardians for negligence in failing to file a parents/guardians for negligence in failing to file a report of suspected abuse/neglect – report of suspected abuse/neglect – parents/guardians allowed to recover damages ($$!) parents/guardians allowed to recover damages ($$!) caused by failure to reportcaused by failure to report

NOT in MANOT in MA – It has been held by the Courts in MA – It has been held by the Courts in MA that the that the onlyonly liability for failure to report arises from liability for failure to report arises from the mandated reporter statute -- misdemeanor with the mandated reporter statute -- misdemeanor with imposition of fine of up to $1,000 – parents/guardians imposition of fine of up to $1,000 – parents/guardians have no right to sue for failure to reporthave no right to sue for failure to report

Bottom lineBottom line – no private right of action – no private right of action Cannot be sued by, for example, parents/guardians, for filing Cannot be sued by, for example, parents/guardians, for filing

report that later turns out to be unsubstantiated.report that later turns out to be unsubstantiated. Cannot be sued for failing to file report – criminal fine only.Cannot be sued for failing to file report – criminal fine only.

Because child abuse/neglect is significantly Because child abuse/neglect is significantly underreported, some child abuse advocates underreported, some child abuse advocates are pushing to increase civil and criminal are pushing to increase civil and criminal liability to encourage more reportingliability to encourage more reporting

Existing potential liability – e.g., just a fine -- Existing potential liability – e.g., just a fine -- not seen as enough to encourage reportingnot seen as enough to encourage reporting

Also, criminal sanctions are not being pursued Also, criminal sanctions are not being pursued and prosecutedand prosecuted

Legal & Ethical Duty to ReportLegal & Ethical Duty to Report Ethical guidelines require school counselors Ethical guidelines require school counselors

to report suspected abuse/neglect – see ACA to report suspected abuse/neglect – see ACA and ASCA ethical standards – must disclose and ASCA ethical standards – must disclose otherwise confidential information to prevent otherwise confidential information to prevent danger to student and/or where legal danger to student and/or where legal requirements demand disclosurerequirements demand disclosure

ASCA Position Statement: Child ASCA Position Statement: Child Abuse/Neglect Prevention – Abuse/Neglect Prevention –

professional school counselors have a legal, moral professional school counselors have a legal, moral and ethical responsibility to reportand ethical responsibility to report

professional school counselors are instrumental in professional school counselors are instrumental in early detectionearly detection

Statutes supersede ethical guidelines – it’s Statutes supersede ethical guidelines – it’s not merely an ethical issue – you have a legal not merely an ethical issue – you have a legal duty to reportduty to report

MA statute – M.G.L. c. 119, s. 51A (“51A”) – if MA statute – M.G.L. c. 119, s. 51A (“51A”) – if in your professional capacity you have in your professional capacity you have “reasonable cause to believe” that child under “reasonable cause to believe” that child under 18 is suffering physical or emotional injury 18 is suffering physical or emotional injury due to abuse or neglect by a due to abuse or neglect by a caretakercaretaker, you , you MUST report to DSS “immediately”MUST report to DSS “immediately”

““Caretaker” very broadly defined – parents, Caretaker” very broadly defined – parents, guardians or any other person entrusted with guardians or any other person entrusted with responsibility of child’s health or welfare – responsibility of child’s health or welfare – includes babysitters, and can even be a includes babysitters, and can even be a babysitter who is under 18babysitter who is under 18

BUT, it is NOT up to you to determine if BUT, it is NOT up to you to determine if alleged abuser is a “caretaker” – it is DSS’s alleged abuser is a “caretaker” – it is DSS’s job to screen for thisjob to screen for this

Signs & symptoms not always “black & blue” – Signs & symptoms not always “black & blue” – but any “reasonable cause to believe” but any “reasonable cause to believe” requires reporting – must file 51A reportrequires reporting – must file 51A report

““Reasonable cause to believe” intentionally Reasonable cause to believe” intentionally sets a very low thresholdsets a very low threshold

Minimal degree of suspicion is all that is Minimal degree of suspicion is all that is required – even slight suspicion is enough to required – even slight suspicion is enough to trigger reporting dutytrigger reporting duty

Do NOT need proof of abuse/neglect – you Do NOT need proof of abuse/neglect – you are NOT a fact-finder or an investigator – that are NOT a fact-finder or an investigator – that is DSS’s jobis DSS’s job

You also are not even allowed to weigh You also are not even allowed to weigh credibility issues – can get stickycredibility issues – can get sticky

So what if you have some suspicions but they are So what if you have some suspicions but they are clouded by doubts, as well – even with some clouded by doubts, as well – even with some uncertainty, filing a report is always adviseduncertainty, filing a report is always advised

Can consult with colleagues – but bottom line is, if you Can consult with colleagues – but bottom line is, if you have even slight suspicion, you must reporthave even slight suspicion, you must report

When you consult, do not identify the child unless When you consult, do not identify the child unless absolutely necessaryabsolutely necessary

Can call DSS even anonymously to run matter by Can call DSS even anonymously to run matter by agency – determine if reportableagency – determine if reportable

Again, so long as “reasonable cause to Again, so long as “reasonable cause to believe” exists, reporter is immune from all believe” exists, reporter is immune from all liability, both civil & criminal, for reporting liability, both civil & criminal, for reporting even what turns out to be a false report so even what turns out to be a false report so long as report was made in good faith long as report was made in good faith

And again, in MA, your job is safeAnd again, in MA, your job is safe Purpose of granting immunity and job Purpose of granting immunity and job

protection is to encourage reporting without protection is to encourage reporting without fear of litigation or job lossfear of litigation or job loss

Note, however, that in MA, a “frivolous” report Note, however, that in MA, a “frivolous” report is subject to a fine of up to $1,000is subject to a fine of up to $1,000

In addition to knowing your statutory duty to In addition to knowing your statutory duty to report, you must know your school’s policy – report, you must know your school’s policy – but if a superior advises you not to report, if but if a superior advises you not to report, if you have a suspicion, you nevertheless must you have a suspicion, you nevertheless must reportreport

You expose yourself to liability ONLY when You expose yourself to liability ONLY when you FAIL to reportyou FAIL to report

In MA, 51A provides very broad safety net for In MA, 51A provides very broad safety net for mandated reporters for reporting their mandated reporters for reporting their suspicions – no risk of liability or job loss -- suspicions – no risk of liability or job loss -- authorities would rather have you risk being authorities would rather have you risk being wrong and report your suspicions, than risk wrong and report your suspicions, than risk being wrong and not reportbeing wrong and not report

Education & TrainingEducation & Training Research shows that school counselors and Research shows that school counselors and

other school personnel are not knowledgeable other school personnel are not knowledgeable about:about:

their statutory dutiestheir statutory duties signs & symptoms of abuse or neglectsigns & symptoms of abuse or neglect

Need to know how to recognize & report Need to know how to recognize & report abuse/neglectabuse/neglect

Extensive education and training needed on Extensive education and training needed on duties, misconceptions and facts re: potential duties, misconceptions and facts re: potential liability and signs & symptomsliability and signs & symptoms

Education and training also needed on how to Education and training also needed on how to handle a child whom school counselor handle a child whom school counselor believes is being abused or neglectedbelieves is being abused or neglected

Common SenseCommon Sense Director of Guidance – lack of common sense & basic Director of Guidance – lack of common sense & basic

knowledgeknowledge You need to know that ignorance of statutory You need to know that ignorance of statutory

reporting requirements is NEVER a defense for your reporting requirements is NEVER a defense for your failure to report a case of suspected abuse/neglect – failure to report a case of suspected abuse/neglect – you are required to report and assumed to know your you are required to report and assumed to know your statutory dutystatutory duty

Too many news reports exist of children being found Too many news reports exist of children being found severely abused, neglected and even murdered severely abused, neglected and even murdered where school counselors had suspicions but failed to where school counselors had suspicions but failed to reportreport

QUESTIONS:QUESTIONS:

1.1. You are a MA school counselor who reported a case of You are a MA school counselor who reported a case of suspected abuse to DSS involving a 5suspected abuse to DSS involving a 5 thth grade student grade student at your school. The stepmother is the alleged at your school. The stepmother is the alleged perpetrator. DSS finds report to be unsupported. A perpetrator. DSS finds report to be unsupported. A lawyer advises the father and stepmother to file suit lawyer advises the father and stepmother to file suit against you for defamation and negligence, claiming against you for defamation and negligence, claiming you defamed them and acted negligently in reporting you defamed them and acted negligently in reporting false abuse, causing them to suffer significant damage false abuse, causing them to suffer significant damage and loss as a result of your false report. and loss as a result of your false report.

Do you agree with the lawyer’s advice?Do you agree with the lawyer’s advice?

2.2. You are a MA school counselor who fails to You are a MA school counselor who fails to report a case of suspected abuse with respect report a case of suspected abuse with respect to one of your 4to one of your 4 thth grade students despite the grade students despite the fact that you had some concerns that the fact that you had some concerns that the student was being abused. The student is student was being abused. The student is found dead, having been raped and murdered found dead, having been raped and murdered by an 18 year old babysitter. A lawyer advises by an 18 year old babysitter. A lawyer advises the student’s parents to file suit against you the student’s parents to file suit against you claiming you were negligent for failing to claiming you were negligent for failing to report suspected abusereport suspected abuse..

Do you agree with the lawyer’s advice?Do you agree with the lawyer’s advice?

3.3. You have been a school counselor for two years You have been a school counselor for two years in MA. During this time, you have reported 6 in MA. During this time, you have reported 6 cases of suspected abuse to DSS, none of which cases of suspected abuse to DSS, none of which have been found to be supported by DSS. You have been found to be supported by DSS. You have another student whom you suspect is being have another student whom you suspect is being abused. What do you do?abused. What do you do?

4.4. You are a MA school counselor out shopping at a You are a MA school counselor out shopping at a department store. When entering the dressing department store. When entering the dressing room, you see one of your assigned students, room, you see one of your assigned students, Jessie, who is in 8Jessie, who is in 8 thth grade, entering the dressing grade, entering the dressing room with her mother. While in the dressing room, room with her mother. While in the dressing room, you overhear a woman say, “Jessie, if you don’t you overhear a woman say, “Jessie, if you don’t shut up and stop complaining, I am going to beat shut up and stop complaining, I am going to beat you again when we get home.” you again when we get home.”

Are you mandated to file a 51A report?Are you mandated to file a 51A report?

5.5. You are new as a school counselor at a MA school. A You are new as a school counselor at a MA school. A student gets in trouble for yelling and swearing at a student gets in trouble for yelling and swearing at a teacher and may be suspended – decision has not yet teacher and may be suspended – decision has not yet been made. In the meantime, he is in your office and been made. In the meantime, he is in your office and tells you that his mother beats him almost nightly, and tells you that his mother beats him almost nightly, and he says she will literally kill him if he is suspended. he says she will literally kill him if he is suspended. You want to file a 51A report, but your principal tells You want to file a 51A report, but your principal tells you not to because the boy has been known to lie in you not to because the boy has been known to lie in the past and is a troublemaker. What do you do?the past and is a troublemaker. What do you do?