Education Laws and Regulations
Joint Advisory Regarding School District Officials' Duty to Report Suspected Child Abuse and Neglect
|To:||School Committee Chairpersons|
Superintendents of Schools
Principals of Public and Private Schools
Charter School Leaders
Other Interested Parties
|From:||Mitchell D. Chester, Ed.D., Commissioner, Department of Elementary and Secondary Education|
Angelo McClain, D.S.W., Commissioner, Department of Children and Families
|Date:||August 20, 2010|
This advisory serves to assist school personnel in carrying out their responsibilities as mandated reporters under Massachusetts General Laws c. 119, §51A, which was amended in 2008. It updates and replaces the previous advisory on this topic issued in 1997 by the Department of Social Services, now called the Department of Children and Families (DCF). This updated advisory, jointly issued by DCF and the Department of Elementary and Secondary Education (ESE), summarizes the mandated reporting law, as amended1, addresses commonly asked questions about the law and the responsibilities that it imposes on school officials, and includes links to G.L. c. 119, § 21 and G.L. c. 119, § 51A.
In addition to the duties of school personnel to report child abuse and neglect consistent with G.L. c. 119, §51A, school committees continue to have a duty under G.L. c. 71, § 37L, as amended, to inform teachers, administrators and other professional staff of their reporting obligations under G.L. c. 119, §51A. We intend for this advisory to assist school committees in complying with G.L. c. 71, § 37L.
Duties of Mandated Reporters
Under G.L. c. 119, §51A, a mandated reporter must immediately report to DCF when s/he has reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from: 1) abuse, including sexual abuse, which causes harm or substantial risk of harm to the child's health or welfare; 2) neglect, including malnutrition, or 3) physical dependence upon an addictive drug at birth.
Mandated reporters, defined in G.L. c. 119, §21, include, among others, public and private school teachers, nurses, educational administrators, guidance or adjustment counselors, psychologists, attendance officers, social workers, day care providers, health care professionals, court and public safety officials.
In schools, mandated reporters may either report directly to DCF or they may notify the person in charge of the school (or that person's designee), in which case that individual is responsible for making the oral and written report to DCF. The mandated reporter must make the oral report to DCF immediately, and then make a written report to DCF within 48 hours. On weekdays between 9 a.m. and 5 p.m., reports can be telephoned to the local DCF area office based on where the child resides.2 Before 9 a.m. and after 5 p.m. during weekdays, weekends and holiday, calls should be made to the DCF Child-At-Risk Hotline at 1-800-792-5200. In addition to filing a report with DCF, a mandated reporter may contact local law enforcement authorities or the Office of the Child Advocate3 about the suspected abuse or neglect.
G.L. c.119, §51A states that any person who is legally required to report suspected child abuse or neglect (i.e., is a mandated reporter), and fails to do so, is subject to a criminal fine of up to $1,000. A mandated reporter who has knowledge of child abuse or neglect that resulted in bodily injury to, or death of, a child and who willfully fails to report such abuse or neglect may be fined up to $5,000, or imprisoned in the house of correction for up to 2 1/2 years or both.
Besides imposing liability for failure to report, the statute also provides protection for mandated reporters who do report. A mandated reporter who makes a report of suspected child abuse or neglect to DCF as required is immune from liability in any criminal or civil action filed in connection with the report or contact if the report or contact was made in good faith, was not frivolous, and the reporter did not cause the abuse or neglect. In addition, the law prohibits any employer of a mandated reporter from discharging, discriminating or retaliating against the employee for making a report to DCF in good faith.
Reporting Suspected Child Abuse and Neglect: Commonly-Asked Questions
Who is a mandated reporter?
Mandated reporters include public and private school teachers and administrators, guidance counselors, attendance officers, psychologists, nurses and other medical practitioners, social workers, day care workers, foster parents, police and court officers, firefighters and others.
Are mandated reporters liable if they fail to report suspected abuse or neglect?
Yes. A mandated reporter may be subject to a criminal fine of up to $1,000 for failure to report suspected abuse or neglect of a child under 18.
Effective July 1, 2010, a mandated reporter who has knowledge of child abuse or neglect that resulted in serious bodily injury to, or death of, a child and who willfully fails to report such abuse or neglect may be fined up to $5,000 or imprisoned in the house of correction for up to 2 ½ years or both.
If a school official is uncertain of his or her obligations under Section 51A, including whether filing a 51A report is appropriate under certain circumstances, we recommend consulting with school counsel or DCF.
How are abuse and neglect defined for purposes of c. 119, §51A?
DCF defines abuse to mean the non-accidental commission of any act by a caretaker upon a child that causes, or creates a substantial risk of, physical or emotional injury, or an act by a caretaker involving a child that constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between a caretaker and a child under the care of that individual.4
Neglect is the failure by a caretaker either deliberately, through negligence or inability, to take actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability and growth, or other essential care; provided, however, that such inability is not due solely to inadequate economic resources or the existence of a handicapping condition.5
What is "reasonable cause to believe" that a child under 18 is suffering from abuse or neglect?
Reasonable cause to believe means known or suspected instances of child abuse or neglect. A suspicion of child abuse is sufficient to trigger the requirements of §51A.
What information must be included in the report to DCF under Section 51A?
The report is to contain the name and address of the child and his/her parents or other persons responsible for the child's care, if known; the child's age; the child's sex; the nature and extent of the child's injuries, abuse, maltreatment, or neglect, including any evidence of prior injuries, abuse, maltreatment or neglect; the circumstances under which the reporter first became aware of the child's injuries, abuse or neglect; what action, if any was taken to assist the child; the name, address and telephone number of the person making the report; and any other information that the reporter believes might be helpful in establishing the cause of the abuse or neglect, including the identity of the person or persons responsible for the abuse or neglect.
Will the name of the school staff member who reports the suspected abuse or neglect be released to the child's parent or guardian?
DCF regulations prohibit DCF staff from releasing the reporter's name to the family or alleged perpetrator of abuse or neglect. DCF will, however, provide the reporter's name to the District Attorney (DA) or police, or other state agencies, if DCF refers the report to them as required under G.L. c. 119, § 51B. DCF can be required to release the name of a reporter in response to a court order. In addition, the child's situation may make it readily apparent to a parent or guardian who is the most likely person to have made the report. For this reason, the reporter should consider notifying the parents that s/he has made a report as required by law.
May a school or school district establish a protocol for school staff members to report suspected child abuse or neglect to a school administrator rather than directly to DCF?
Yes. Section 51A says that a mandated reporter who is a staff member in a school may make the report either directly to DCF or to the person in charge of the school (or that person's designee), in which case that individual is responsible for making the oral and written report to DCF. We encourage schools and school districts to develop child abuse reporting protocols, both for efficiency and so that the school administration is informed about children who may be at risk. Once a protocol is developed, the school or school district administration is responsible for ensuring (1) that the protocol is known to and understood by school staff (for example, by including it in staff handbooks and providing reminders to staff at the beginning of each school year), and (2) that it is followed.
Effective January 1, 2010, under the revised law, a mandated reporter who is professionally licensed in Massachusetts must receive training on recognizing and reporting suspected child abuse and neglect. This requirement applies to teachers and administrators licensed by the Department of Elementary and Secondary Education (ESE), as well as school psychologists, nurses, and other clinicians licensed by the Commonwealth. Additionally, school districts continue to have the obligation under G.L. c. 71, §37L to provide information about child abuse and neglect reporting requirements to staff who are mandated reporters. ESE-approved private day and residential special education schools also must meet their obligation to draft written procedures and train staff regarding their reporting obligations, as required by the Program and Safety Standards for Approved Public or Private Day and Residential Special Education School Programs (603 CMR 18.05(9)(i)).
As part of the information and training provided to staff, we recommend that school districts and ESE-approved day and residential special education schools provide this advisory, or a link to it, to all staff members. The advisory is posted on ESE's web-site.
What if the mandated reporter who reports to the person in charge of the school or under a school protocol is uncertain whether the report has reached DCF?
A mandated reporter who has followed the school protocol and reported suspected child abuse to a school administrator, but is uncertain that the report has reached DCF, may also make the report directly to DCF. G.L. c.119, §51A prohibits any employer of a mandated reporter from discharging, discriminating or retaliating against the employee for making a report to DCF in good faith.
What happens when a report is filed with DCF?
Initially, the DCF social worker who takes the report of abuse or neglect screens it. If there is reasonable cause to believe that a child is being abused or neglected by a "caretaker," the report will be "screened-in" for response. 6 A report that is screened-out because it does not involve a caretaker will be referred to the DA and local police if it involves criminal child abuse by a non-caretaker. DCF may also provide the reporter with contact information for other authorities such as law enforcement, the DA's office, or licensing agencies.
If there is reasonable cause to believe that the child's health or safety is in immediate danger from abuse or neglect, DCF must begin its emergency investigation within 2 hours of receiving a report and complete an interim report within 24 hours. The final report must be completed within 5 business days of initial contact. Otherwise, the DCF response must begin within 2 business days of the initial contact and be completed within 15 business days, unless a waiver has been approved by DCF or requested by law enforcement.
Who is a caretaker under DCF regulations?
A caretaker means a parent, stepparent, guardian, or other household member, or other individual who is entrusted with responsibility for a child's health or welfare in the home, a relative's home, school setting, foster or group home, day care center, or a residential facility. In addition to parents or household members it includes teachers, babysitters, school bus drivers, camp counselors, and foster parents or day care providers. The "caretaker" definition is meant to be construed broadly to encompass any person who is, at the time in question, entrusted with a degree of responsibility for a child. This would include a caretaker who is himself/herself a child (e.g., a babysitter under age 18).
When are reports of abuse or neglect referred by DCF to the District Attorney or police?
G.L. c. 119, §51B requires DCF to notify and provide a copy of its substantiated 51A report and written evaluation to the DA and the police in the town where the suspected abuse or neglect occurred and in the town where the child resides when it has reasonable cause to believe that the abuse or neglect caused one or more of the following conditions to the child: 1) death; 2) brain damage; 3) loss or substantial impairment of a bodily function or organ; 4) substantial disfigurement; 5) serious physical injury; 6) sexual assault; 7) sexual exploitation; or 8) physical abuse involving physical evidence which may be destroyed.
If DCF does not support a report of suspected child abuse or neglect, is the school staff person who made the report liable in any way?
No. The statute provides for immunity from civil liability or criminal penalties for any report made in good faith, provided the report was not frivolous and the reporter was not the cause of the abuse or neglect.
Will reporting suspected child abuse by a parent or guardian to DCF impair the relationship between the school and the family, or risk further abuse to the child?
While there is some risk that a report might affect a school's relationship with a family, families may understand that the reporter was legally required to file the report. In those cases where the child is being abused by a family member, prompt reporting is the best way to provide more immediate protection to the child. If the reporter has concerns for the immediate safety of the child, s/he should make that known to DCF, so that emergency action can be taken to protect the child.
When a 51A report is filed, how does DCF inform the reporter of its investigation and the outcome of the case?
DCF will notify the reporter of the decision to screen in or out the report. If DCF has screened in the report for response, the reporter will be notified of the outcome, even when DCF does not support the allegation. Upon request, the mandated reporter of a supported 51A will be informed of the services DCF intends to provide to the child and/or family.
If the alleged abuser of a student is a school employee, should the matter be reported to DCF under G.L. c.119, §51A? Should it also be investigated by the school authorities? Should it be reported to the police or to anyone else?
Yes, the matter must be reported to DCF if the student is under the age of 18. DCF will refer allegations of criminal abuse to the DA and police. 7
If school officials believe that criminal laws may have been violated, they should report those matters to the police, particularly if the incident may involve criminal violations not included under §51A.
If, as a result of an internal investigation regarding abuse or neglect of a student, a teacher or other licensed educator is dismissed, is asked to resign, or his or her contract is not renewed, a school administrator must report the matter within 30 days to the Commissioner of Elementary and Secondary Education pursuant to the Massachusetts Educator Licensure Regulations. More information on the requirement for school administrators to report educator misconduct to the Department can be found at Commissioner's April 22, 2009 memorandum.
In addition, school authorities have a general duty to take reasonable measures to protect the safety of their students, and under federal and state civil rights laws a school or school district may be liable for sexual abuse or sexual harassment of students by school employees. For these reasons, besides reporting to DCF, school officials must take prompt and effective steps to investigate and resolve any allegation that a school employee has sexually abused or sexually harassed a student.
If a student alleges to a teacher or other school staff member, or a teacher or staff members suspects, that the student is being sexually assaulted, abused or exploited by another student, should the matter be reported to DCF or the police under G.L. c. 119, §51A?
If a student is being sexually assaulted, abused or exploited by another student, the matter should be reported to DCF (and the police if the district so chooses). Although DCF limits its investigations to allegations of abuse and neglect involving caretakers, if the reported incident involves a matter that DCF must refer to the DA under Section 51B (see question 11), such as sexual assault by one student of another, DCF will "screen out" the report but refer it to the DA and police.
In addition to reporting to DCF as explained above, school authorities have a legal obligation in such situations to protect the safety and civil rights of students. For example, under the federal law prohibiting sex discrimination in schools that receive federal funds (Title IX), a school is liable for student-to-student sexual harassment if the harassment is severe, persistent or pervasive; the school knows or should know of it; and the school fails to take immediate and appropriate corrective action. Therefore, besides reporting to DCF, school officials must take prompt and effective steps to investigate and resolve any allegation that a student has sexually abused or sexually harassed another student.
May a public school release student record information to DCF in cases of suspected child abuse or neglect?
Yes. G.L. c. 119, §51B requires all mandated reporters to disclose to DCF any information that DCF determines is relevant to its investigation of a case of suspected abuse or neglect, including student record information. The release of this information is specifically authorized in the Massachusetts Student Records Regulations 603 CMR 23.07(4)[c] and [e].
May DCF social workers who are investigating a case of suspected child abuse or neglect interview staff or children at school?
G.L. c.119, §51B requires school staff to cooperate with a DCF response to an allegation of abuse or neglect involving a student at their school. Information provided by school staff is often vital to determining if a child has in fact suffered abuse or neglect. Section 51B does not address interviewing of the child at school, but rather provides that the child shall be seen at home. However, ESE has consistently advised school districts to cooperate with DCF staff when the circumstances of the case necessitate interviewing the child at school. We have suggested that such interviews be conducted in the presence of a teacher or other school personnel to provide help and understanding to the child. ESE has also discouraged school districts from notifying parents or guardians of a DCF interview or response where the child could be placed at risk of further abuse or neglect.
1See Sections 83 and 95-97 of chapter 176 the Acts of 2008. Please note that the definition of mandated reporter that was previously found in G.L. c.119, § 51A has been removed and inserted into G.L. c. 119, § 21. A copy of the amended Sections 21 and 51A is attached to this advisory.
2 Telephone numbers and locations of DCF area offices can be found at Department of Children & Families website.
3 Section 46 of chapter 176 of the Acts of 2008 (codified at G.L. c. 18C) created the Office of the Child Advocate (OCA), which is independent of any supervision or control by any executive agency. The Child Advocate, who is appointed by and reports directly to the Governor, has broad authority relative to, among other things, the care and services that executive agencies of the Commonwealth provide to children. The OCA may be reached at Office of the Child Advocate (OCA) or at 617-979-8360 (toll free: 1-866-790-3690).
4 110 CMR 2.00.
5 110 CMR 2.00.
6 DCF will implement either an investigation response or an initial assessment response based on the severity of the situation. Investigations may be conducted under the emergency timeline or the non-emergency timeline.
7 G.L. Chapter 19C, Section 10 requires that suspected abuse or neglect of disabled persons age 18 and over be reported to the Disabled Persons Protection Commission (DPPC). The DPPC Abuse Reporting Hotline is at 800-426-9009. Additional information on DPPC and the duty to report abuse or neglect of disabled adults may be found at Disabled Persons Protection Commission website.