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HR Magazine, September 2003 - Duty to Inform

By Diane Cadrain  9/1/2003
 
HR Magazine, September 2003
Vol. 48, No. 9

Delay reporting allegations of child or elder abuse—even for internal investigations—and you could land in jail.

When Lissa Bobet, HR manager for the Osceola County Public Schools in Florida, heard that Matthew Rossillo, a second-grade teacher at Kissimmee Elementary School, was playing a “weird math game” with female students, she followed school procedure: She asked school investigations specialist Sonia Drudge to look into it.

When police were eventually informed, they determined that Rossillo’s math game was “weird” enough that they arrested him for lewd and lascivious molestation of a child under 16.

Despite her good-faith effort to investigate Rossillo, Bobet also was arrested—along with Drudge and principal Kenneth Myers. All three were charged with failure to report suspected child abuse, which carries a penalty of a fine and up to one year in jail.

The reason for the arrests: All three opted to conduct an internal investigation before notifying police. Their decision might seem second nature to HR professionals—it is, after all, how most employee complaints are handled. But in this case, it sparked a nightmare for Bobet, Drudge and Myers.

The potential for such legal problems is not limited to the Florida schools; rather, HR professionals in a number of states—and in a surprising number of industries—are at risk. As national statistics show that both child abuse and elder abuse are on the rise, HR managers are increasingly exposed to civil and criminal liability for failure to report such incidents.

State law may make HR managers “mandated reporters,” those required to report abuse allegations, or there may be mandated reporters in the workforce. Either way, HR needs to learn about this growing problem and how to both avoid liability and prevent the tragedy of abuse.

Fundamental Questions
Being designated a mandated reporter raises a number of questions for HR professionals, including:

Who is a mandated reporter of child abuse? Most states designate health care workers, school personnel, day-care providers, social workers, law enforcement officers and mental health professionals. In many settings, such as schools, child care facilities and hospitals, the list can include HR managers or others in the workforce.

“It’s up to state lawmakers to designate who must report, but there is a great deal of uniformity among the states,” says Howard Davidson of the American Bar Association Center on Children and the Law. Even so, it’s important to check the law in your state.

For example, 18 states require any citizen to report suspected child abuse or neglect. Those states are Delaware, Florida, Idaho, Indiana, Kentucky, Maryland, Mississippi, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Utah and Wyoming.

In these states, HR managers in companies with on-site child care facilities may be required to report alleged abuse, even if an outside contractor runs the facility.

Almost a quarter of the states—Alaska, Connecticut, Illinois, Iowa, Massachusetts, Nevada, New York, North Dakota, South Carolina, South Dakota and Wisconsin—designate substance abuse counselors as mandated reporters.

Several states, on the lookout for child pornography, require reports from commercial film or photo processors. Those states are Alaska, California, Colorado, Illinois, Iowa, Louisiana, Maine, Missouri, Oklahoma and South Carolina.

Two states—Missouri and South Carolina—designate Internet service providers and computer technicians as mandated reporters.

Who is a mandated reporter of elder abuse? Most states require the reporting of abuse of vulnerable adults. These laws are modeled after the child abuse laws.

Most states name health care professionals as mandated reporters of elder abuse. Many also name law enforcement officers, psychologists, dentists and social workers.

What are the potential legal penalties for failure to report child or elder abuse or neglect?

  • Criminal prosecution. In 42 states, there are criminal consequences—such as a misdemeanor charge or a fine—for failure to report. Fines may range from $50 to $10,000, depending on the state and the severity of the abuse. Imprisonment may range from six months to four years.

  • Loss of licensure or other professional disciplinary action. This varies by state, but in highly regulated professions—such as health care and education—failure to report could lead to loss of one’s state license to practice.

  • Civil liability. Those who fail to report also may face civil lawsuits seeking redress for damages. If the mandated reporter is an HR manager, the company—and possibly the HR manager—may face liability for failure to report suspect actions by employees, as well as negligent hiring and negligent supervision.

Damages in a civil lawsuit—particularly for redress of pain and suffering—are potentially far higher than criminal fines.

What if the report is unfounded? Most states have a statute that protects people who, in good faith, report suspected child or elder abuse or neglect. The statutes may protect reporters from criminal or civil liability, or both. Several states also provide immunity not only for the original report, but also for any subsequent judicial proceedings.

How much must a mandated reporter suspect to trigger the duty to report? There are many similarities between child and elder abuse reporting laws. Typically, all that is required is a suspicion, or a reason to suspect, that a child or vulnerable adult is being abused or neglected.

But there may be differences of opinion as to when suspicions should have arisen. Davidson explains that what reporters knew, when they knew it and when they reported will vary from one case to the next.

When to Make the Call?
Questions about when school officials’ suspicions should have been raised were central to Bobet’s situation in Florida.

Neither Bobet nor her attorney would return phone calls for this article. But Sgt. Ralph Moore of the Kissimmee Police Department and Dana Shaefer, coordinator of community relations for the Osceola County Public Schools, tell the story from their divergent points of view.

Moore says that Rossillo, the teacher in the case, would allegedly sit in a chair and ask one of the girls in his class to stand in front of him with her back turned and her hands behind her. “He’d then ask her to guess how many fingers he was putting in her hand. But at some point he allegedly put his penis into their hands,” Moore says.

The children’s parents came forward to the principal—a mandated reporter, Moore says. “The principal did an investigation and talked to the other kids. Instead of reporting it to police, he reported it to his HR manager, who was also a mandated reporter, but she didn’t report it either. Instead, she put an investigator on it, and the investigator was a mandated reporter, too. They didn’t call the police until 3-1/2 days later.”

Florida law requires a long list of professionals, including school officials, who “know or have reasonable cause to suspect” that child abuse is occurring, to report it to law enforcement immediately, Moore says. Bobet, Myers and Drudge were arrested because they conducted their own investigation before making their report.

But Shaefer justifies the school officials’ actions. “A parent called the principal and said something like ‘I think maybe this teacher is playing a weird math game with the students.’ There was no sexual activity alleged,” says Shaefer, “so the principal pulled the students in and talked to them, then he called in Lissa Bobet, who put Sonia Drudge on the case.”

The parent called on Monday afternoon, Shaefer says. As soon as the officials realized that alleged sexual activity was involved—late on Wednesday afternoon—they called the Osceola County sheriff, who told them that the matter fell under the jurisdiction of the Kissimmee Police Department, says Shaefer, whom they called first thing Thursday morning.

Moore explains why the three were arrested.

“They [mandated reporters] need to make immediate reports for the child’s welfare,” says Moore. “It’s harmful to the kid to have to keep repeating a story over and over again. It’s harmful to the investigation, too, because kids can be influenced by adults and change their stories. This is a criminal offense, and school officials aren’t trained to make investigations. We want the professionals to do it.”

Others in law enforcement agree. “They [Myers, Bobet and Drudge] had no excuse not to report,” says Randy Thomas, a law enforcement instructor at the South Carolina Department of Safety’s Criminal Justice Academy, who has extensive experience with child and elder abuse cases.

“It’s not their decision,” he continues. “They’re not investigators. My sympathy for them is about zero. If they even have a glimmer that kids are being abused, they have to report it. We put people in jail for that here. We had one school principal who didn’t report, and a child died. We put him in jail,” Thomas says.

“There’s no downside to making a good-faith report,” points out Ricker Hamilton, director of Adult Protective Services for the state of Maine, and president of the National Association of Adult Protective Services Administrators. “A report isn’t to point the finger; it’s just to say ‘Something isn’t right here; will you take a look at it?’ Even if the report is unfounded, it’s still good to connect people with services.”

But Davidson says “mandated reporting laws don’t necessarily rule out making an in-house investigation first. It’s obviously a question of fact as to when [Myers, Bobet and Drudge] had ‘reasonable cause to suspect’ that they were dealing with sexual abuse,” he says. “A judge or jury hearing the case can think that a ‘weird math game’ could mean a lot of things. It all depends on the information the reporter was given.”

He adds, however, that concern for potential victims mandates a rapid response.

“Schools typically have their own unwritten rules—practices they adopt—requiring suspected abuse or neglect to be reported to a principal and for the principal to take it from there,” says Davidson. “These practices may be well-intentioned, but with this issue, promptness is everything, because memories fade and people may be less likely to talk over time.”

Virginia, for Example
One way to ensure both a rapid response and a valid internal investigation may be to do both simultaneously. That’s how such allegations are handled in Fairfax, Va., says Alan Barbee, a retired police officer who serves as an investigator with the Fairfax County Public Schools.

“I only get involved if the allegation is against a school employee,” says Barbee. “But the vast majority of cases—90 percent—involve abuse or neglect by someone outside the school system, in the family. In those cases, the teacher notifies the principal, and the principal or another designated person makes the call.”

Virginia law states that “any teacher or other person employed in a public or private school, kindergarten or nursery school” is a mandated reporter, but school policy says the teacher should notify the principal, Barbee says.

“If the allegation involves a teacher, the principal’s report to authorities and my internal investigation are happening at the same time,” he says. “I coordinate with law enforcement and child protective people.”

Creating a Response Plan
Given the potential complexities of such situations—as well as the variations in state laws and their interpretation—you may want to consider the following points when developing plans for how you or other mandated reporters should respond to allegations of abuse or neglect:

  • Make sure you are completely familiar with your state law. Find out whether you, or anyone on your staff, is a mandated reporter.

For an overview of state child abuse law, including charts showing the individuals mandated to report in each state, the penalties for failure to report and provisions making good-faith reporters immune from liability, visit the National Clearinghouse on Child Abuse and Neglect’s web site at www.calib.com. (For a direct link to the appropriate page, see the online version of this article at www.shrm.org/hrmagazine.) The Children’s Bureau, Administration for Children and Families, U.S. Department of Health and Human Services, maintains the clearinghouse.

For a chart that lists state law requirements for mandated reporting of elder abuse, check the National Center on Elder Abuse’s web site at www.elderabusecenter.org.

  • Find out which local law enforcement agency is designated to receive reports.

  • Find out how law enforcement authorities interpret the law in your particular state. In Florida, for example, Kissimmee police view all school employees as mandated reporters of child abuse—even custodians and clerical and cafeteria workers.
  • Have a written, coordinated policy and procedure for making the report.

  • Explore training options for the mandated reporters on your staff. State or local law enforcement authorities may offer free training on requirements of making a report, the level of suspicion necessary and penalties for failure to report.

  • Coordinate your activities with law enforcement agencies. Developing a plan and coordinating with local law enforcement authorities can help ensure the safety and health of children and the elderly—and keep you and your employees out of jail.

Diane Cadrain is an attorney and has been covering workplace legal issues for 20 years. She is a member of the Human Resource Association of Central Connecticut.

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