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1. SCHOOL COUNSELORSCHOOL COUNSELOR
LIABILITY AND CHILD ABUSELIABILITY AND CHILD ABUSE
REPORTINGREPORTING

2.  History of Mandated ReportingHistory of Mandated Reporting
 Dr. C. Henry Kempe – pediatrician alarmed atDr. C. Henry Kempe – pediatrician alarmed at
inordinate # of nonaccidental injuries in hisinordinate # of nonaccidental injuries in his
practicepractice
 1961 – hosted American Academy of1961 – hosted American Academy of
Pediatrics Symposium on child abuse – drewPediatrics Symposium on child abuse – drew
widespread attention to the epidemic of childwidespread attention to the epidemic of child
abuseabuse
 Dr. Kempe coined phrase “battered childDr. Kempe coined phrase “battered child
syndrome”syndrome”

3.  By late 1960s, because of Dr. Kempe’s work, allBy late 1960s, because of Dr. Kempe’s work, all
states had enacted child abuse mandated reportingstates had enacted child abuse mandated reporting
statutes requiring physicians to report suspected childstatutes requiring physicians to report suspected child
abuse/neglect to authoritiesabuse/neglect to authorities
 Dr. Kempe’s work led to Congress enacting ChildDr. 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 statutesBy late 1970s, state mandated reporting statutes
were expanded to include other professionals,were expanded to include other professionals,
including school personnel such as teachers andincluding school personnel such as teachers and
school counselorsschool counselors

4.  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 schoolongoing contact with children, allowing school
personnel to notice even subtle changes inpersonnel to notice even subtle changes in
studentsstudents
 Many say school personnel are in best position toMany say school personnel are in best position to
observe signs of possible child abuse/neglectobserve signs of possible child abuse/neglect

5.  StatisticsStatistics
 4 children die each day due to child4 children die each day due to child
abuse/neglectabuse/neglect
 3 million reports of suspected child3 million reports of suspected child
abuse/neglect in 2005abuse/neglect in 2005
 But actual incidence of abuse estimated byBut 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 significantlyExperts note that child abuse is significantly
underreportedunderreported

6.  Rate at which school personnel reportRate at which school personnel report
suspected abuse/neglect simply notsuspected 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 beenWhile school personnel in general have been
shown to underreport child abuse/neglect,shown to underreport child abuse/neglect,
school counselors in particular have beenschool counselors in particular have been
said to be among the worst offenders in failingsaid to be among the worst offenders in failing
to report suspected abuse/neglectto report suspected abuse/neglect

7.  School counselors fail to report and thus underreportSchool counselors fail to report and thus underreport
abuse/neglect despite fact that counselors state thatabuse/neglect despite fact that counselors state that
encountering suspected cases of abuse/neglect is aencountering suspected cases of abuse/neglect is a
common occurrencecommon occurrence
 School counselors have expressed anxiety & fearSchool counselors have expressed anxiety & fear
when confronted with having to decide whether towhen 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 frequentlymost frequently
cited ethical dilemma encountered by schoolcited ethical dilemma encountered by school
counselors, with 1counselors, with 1stst
being suicide determinationsbeing suicide determinations

8.  Reasons for Failing to ReportReasons for Failing to Report
 School counselors consistently cite fear ofSchool counselors consistently cite fear of
being sued by parents/guardians/allegedbeing sued by parents/guardians/alleged
perpetrators for reporting suspected abuseperpetrators for reporting suspected abuse
that is later found to have beenthat is later found to have been
unsubstantiatedunsubstantiated
 This is a grave misconceptionThis is a grave misconception
 InIn ALLALL states, it is FAILURE TO REPORTstates, it is FAILURE TO REPORT
that triggers liability, NOT reporting what turnsthat triggers liability, NOT reporting what turns
out to be an inaccurate reportout to be an inaccurate report

9.  Statutory Liability/Criminal LiabilityStatutory Liability/Criminal Liability for failure tofor failure to
report -- in all states – failure to report is areport -- 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/orranging from 10 day – 1 year jail sentence and/or
$500 - $1000 fine$500 - $1000 fine
 Immunity from liabilityImmunity from liability exists in all states -- even ifexists 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 forschool counselors are immune from liability for
reporting suspected abuse/neglect so long as theirreporting suspected abuse/neglect so long as their
report was made in good faithreport was made in good faith

10.  Another reason cited for failure to report suspectedAnother 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 andWhile in some states, school counselors can and
have faced disciplinary action, job termination, andhave faced disciplinary action, job termination, and
professional license suspension or loss, for filingprofessional 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 schoolthe mandatory reporting statute fully protects school
counselorscounselors
 In MA, again, so long as report was made in goodIn MA, again, so long as report was made in good
faith, school system cannot “discharge, or in anyfaith, school system cannot “discharge, or in any
manner discriminate or retaliate against” a schoolmanner discriminate or retaliate against” a school
employee who makes a good faith reportemployee who makes a good faith report

11.  Civil liability for failure to reportCivil liability for failure to report – some states– some states
have allowed mandated reporters to be sued byhave allowed mandated reporters to be sued by
parents/guardians for negligence in failing to file aparents/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 thethat the onlyonly liability for failure to report arises fromliability for failure to report arises from
the mandated reporter statute -- misdemeanor withthe mandated reporter statute -- misdemeanor with
imposition of fine of up to $1,000 – parents/guardiansimposition 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 filingCannot 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.

12.  Because child abuse/neglect is significantlyBecause child abuse/neglect is significantly
underreported, some child abuse advocatesunderreported, some child abuse advocates
are pushing to increase civil and criminalare 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 pursuedAlso, criminal sanctions are not being pursued
and prosecutedand prosecuted

13.  Legal & Ethical Duty to ReportLegal & Ethical Duty to Report
 Ethical guidelines require school counselorsEthical guidelines require school counselors
to report suspected abuse/neglect – see ACAto report suspected abuse/neglect – see ACA
and ASCA ethical standards – must discloseand ASCA ethical standards – must disclose
otherwise confidential information to preventotherwise confidential information to prevent
danger to student and/or where legaldanger to student and/or where legal
requirements demand disclosurerequirements demand disclosure
 ASCA Position Statement: ChildASCA Position Statement: Child
Abuse/Neglect Prevention –Abuse/Neglect Prevention –
 professional school counselors have a legal, moralprofessional school counselors have a legal, moral
and ethical responsibility to reportand ethical responsibility to report
 professional school counselors are instrumental inprofessional school counselors are instrumental in
early detectionearly detection

14.  Statutes supersede ethical guidelines – it’sStatutes supersede ethical guidelines – it’s
not merely an ethical issue – you have a legalnot merely an ethical issue – you have a legal
duty to reportduty to report
 MA statute – M.G.L. c. 119, s. 51A (“51A”) – ifMA statute – M.G.L. c. 119, s. 51A (“51A”) – if
in your professional capacity you havein 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 injury18 is suffering physical or emotional injury
due to abuse or neglect by adue to abuse or neglect by a caretakercaretaker, you, you
MUST report to DSS “immediately”MUST report to DSS “immediately”

15.  ““Caretaker” very broadly defined – parents,Caretaker” very broadly defined – parents,
guardians or any other person entrusted withguardians 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 aincludes babysitters, and can even be a
babysitter who is under 18babysitter who is under 18
 BUT, it is NOT up to you to determine ifBUT, it is NOT up to you to determine if
alleged abuser is a “caretaker” – it is DSS’salleged 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” intentionallyReasonable cause to believe” intentionally
sets a very low thresholdsets a very low threshold

16.  Minimal degree of suspicion is all that isMinimal degree of suspicion is all that is
required – even slight suspicion is enough torequired – even slight suspicion is enough to
trigger reporting dutytrigger reporting duty
 Do NOT need proof of abuse/neglect – youDo NOT need proof of abuse/neglect – you
are NOT a fact-finder or an investigator – thatare NOT a fact-finder or an investigator – that
is DSS’s jobis DSS’s job
 You also are not even allowed to weighYou also are not even allowed to weigh
credibility issues – can get stickycredibility issues – can get sticky

17.  So what if you have some suspicions but they areSo what if you have some suspicions but they are
clouded by doubts, as well – even with someclouded 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 youCan 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 unlessWhen you consult, do not identify the child unless
absolutely necessaryabsolutely necessary
 Can call DSS even anonymously to run matter byCan call DSS even anonymously to run matter by
agency – determine if reportableagency – determine if reportable

18.  Again, so long as “reasonable cause toAgain, so long as “reasonable cause to
believe” exists, reporter is immune from allbelieve” exists, reporter is immune from all
liability, both civil & criminal, for reportingliability, both civil & criminal, for reporting
even what turns out to be a false report soeven what turns out to be a false report so
long as report was made in good faithlong 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 jobPurpose of granting immunity and job
protection is to encourage reporting withoutprotection is to encourage reporting without
fear of litigation or job lossfear of litigation or job loss

19.  Note, however, that in MA, a “frivolous” reportNote, 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 toIn 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, ifbut if a superior advises you not to report, if
you have a suspicion, you nevertheless mustyou have a suspicion, you nevertheless must
reportreport
 You expose yourself to liability ONLY whenYou expose yourself to liability ONLY when
you FAIL to reportyou FAIL to report

20.  In MA, 51A provides very broad safety net forIn MA, 51A provides very broad safety net for
mandated reporters for reporting theirmandated 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 beingauthorities would rather have you risk being
wrong and report your suspicions, than riskwrong and report your suspicions, than risk
being wrong and not reportbeing wrong and not report

21.  Education & TrainingEducation & Training
 Research shows that school counselors andResearch shows that school counselors and
other school personnel are not knowledgeableother school personnel are not knowledgeable
about:about:
 their statutory dutiestheir statutory duties
 signs & symptoms of abuse or neglectsigns & symptoms of abuse or neglect

22.  Need to know how to recognize & reportNeed to know how to recognize & report
abuse/neglectabuse/neglect
 Extensive education and training needed onExtensive education and training needed on
duties, misconceptions and facts re: potentialduties, misconceptions and facts re: potential
liability and signs & symptomsliability and signs & symptoms
 Education and training also needed on how toEducation and training also needed on how to
handle a child whom school counselorhandle a child whom school counselor
believes is being abused or neglectedbelieves is being abused or neglected

23.  Common SenseCommon Sense
 Director of Guidance – lack of common sense & basicDirector of Guidance – lack of common sense & basic
knowledgeknowledge
 You need to know that ignorance of statutoryYou need to know that ignorance of statutory
reporting requirements is NEVER a defense for yourreporting 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 youryou are required to report and assumed to know your
statutory dutystatutory duty
 Too many news reports exist of children being foundToo many news reports exist of children being found
severely abused, neglected and even murderedseverely abused, neglected and even murdered
where school counselors had suspicions but failed towhere school counselors had suspicions but failed to
reportreport

24. QUESTIONS:QUESTIONS:
1.1. You are a MA school counselor who reported a case ofYou are a MA school counselor who reported a case of
suspected abuse to DSS involving a 5suspected abuse to DSS involving a 5thth
grade studentgrade student
at your school. The stepmother is the allegedat your school. The stepmother is the alleged
perpetrator. DSS finds report to be unsupported. Aperpetrator. DSS finds report to be unsupported. A
lawyer advises the father and stepmother to file suitlawyer advises the father and stepmother to file suit
against you for defamation and negligence, claimingagainst you for defamation and negligence, claiming
you defamed them and acted negligently in reportingyou defamed them and acted negligently in reporting
false abuse, causing them to suffer significant damagefalse 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?

25. 2.2. You are a MA school counselor who fails toYou are a MA school counselor who fails to
report a case of suspected abuse with respectreport a case of suspected abuse with respect
to one of your 4to one of your 4thth
grade students despite thegrade students despite the
fact that you had some concerns that thefact that you had some concerns that the
student was being abused. The student isstudent was being abused. The student is
found dead, having been raped and murderedfound dead, having been raped and murdered
by an 18 year old babysitter. A lawyer advisesby an 18 year old babysitter. A lawyer advises
the student’s parents to file suit against youthe student’s parents to file suit against you
claiming you were negligent for failing toclaiming 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?

26. 3.3. You have been a school counselor for two yearsYou have been a school counselor for two years
in MA. During this time, you have reported 6in MA. During this time, you have reported 6
cases of suspected abuse to DSS, none of whichcases of suspected abuse to DSS, none of which
have been found to be supported by DSS. Youhave been found to be supported by DSS. You
have another student whom you suspect is beinghave another student whom you suspect is being
abused. What do you do?abused. What do you do?

27. 4.4. You are a MA school counselor out shopping at aYou are a MA school counselor out shopping at a
department store. When entering the dressingdepartment 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 8thth
grade, entering the dressinggrade, 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’tyou overhear a woman say, “Jessie, if you don’t
shut up and stop complaining, I am going to beatshut 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?

28. 5.5. You are new as a school counselor at a MA school. AYou are new as a school counselor at a MA school. A
student gets in trouble for yelling and swearing at astudent gets in trouble for yelling and swearing at a
teacher and may be suspended – decision has not yetteacher and may be suspended – decision has not yet
been made. In the meantime, he is in your office andbeen made. In the meantime, he is in your office and
tells you that his mother beats him almost nightly, andtells 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 tellsYou want to file a 51A report, but your principal tells
you not to because the boy has been known to lie inyou 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?