Child Abuse Reporting:

Transcription

1 Child Abuse Reporting: Is the law changing and how does it affect schools? By: Harben, Hartley and Hawkins Law Firm Educators are often surprised to learn that student-on-student acts, especially sexual acts, are included within the definition of abuse to be reported to DFACS. Educators throughout the State are well aware of the requirement to report suspected child abuse. School districts provide yearly training; relevant parties within each community are required to develop and periodically review a protocol as to how abuse allegations are reported and investigated; and the Professional Standards Commission s Code of Ethics incorporates the statutory requirement in Standard 9. Throughout the State this year there have been stories of alleged failures to report resulting in criminal charges not against the perpetrator of the abuse, but against the educator who allegedly knew something but failed to report it. However, a recent decision of the Georgia Supreme Court combined with reporting changes put into place at the state-level by the Division of Family and Children Services has caused some confusion about what is required and the potential legal consequences for educators and their employing school districts when a report is not made. The statutory requirement is set forth in O.C.G.A which states as its purpose the protection of children whose health and welfare are adversely affected and further threatened by the conduct of those responsible for their care and protection. The General Assembly directed that the law be liberally construed so as to carry out the purposes thereof. But exactly what does it say that affects educators? Teachers, administrators, counselors, social workers and Continued on page 4 WEATHER LOSSES Windstorm 36% Hail 14% Flood 16% 5120 Sugarloaf Parkway Lawrenceville, GA Lightning 34% Floods, lightning strikes, windstorms and hail losses caused damage totaling $3,578,697 to member districts over the past five years.

2 Georgia School Boards Association Risk Management Services January 2015 Director s Message By: Christopher B. Erwin, GSBA Director of Risk Management Services It is our responsibility to protect the reputation of the school district by creating a safe environment. To accomplish this, the Board of Education plays a vital role in ensuring a culture of safety in the district. We refer to this as Risk Management and there has never been a more important time than now to look for ways to ensure safety in schools and at school activities. This includes all facets of a school system s safety, whether that is traveling to an extracurricular event or just moving a kindergarten class to the playground. Georgia School Boards Association Risk Management Services (GSBA-RMS) assists school systems and Regional Education Service Agencies (RESA s) with many services that are dedicated to keeping students, employees, and visitors safe. These services are unique and include Webinars, Safety Scenarios, Risk E-lerts, Safety Checklists, School Bus Safety Program, Phone and Tablet applications, Legal Briefs and Quarterly Newsletters and Online Safety Training. For almost 100 of the State s 180 school systems, GSBA-RMS is the principal organization in the state for these types of services. Is safety a priority in your school district? Does your school system have a plan to ensure a culture of safety? The Board of Education also plays a vital role in ensuring there is a culture of safety with regard to their employees. Ensuring a culture of safety includes an effective loss control program to prevent employee injuries. GSBA-RMS provides Workers Compensation coverage to over 24,500 school and RESA employees in the state. GSBA-RMS assists its members with controlling losses through effective returnto-work programs, employee safety training, and assisting with controlling medical costs. When effectively implemented, all of these services help members lower their premium cost. Boards of Education are often recognized for providing a safe environment for their employees. Were there preventable injuries at your district? As a board member or administrator can you say you know the strategy employed to keep the workers safe? The staff at GSBA-RMS has set a new vision that will drive the organization into the future. That vision is: Delivering A+ Service through Superior Member Relationships. As many people around the state know, GSBA RMS only serves school systems and RESA s. This type of singular focus allows for targeted services as described earlier in this article. An interesting GSBA-RMS fact is that there are three staff members that are retired educators. This enables our department at GSBA to understand what the member (school system) is experiencing as situations present themselves. As evident in the new vision statement wording, service and relationships are key to the success of GSBA-RMS in providing safety services that will be impactful. I encourage all Georgia School System administrators and board members to work to protect the reputation of the district by becoming more aware of what services are available to ensure their students, employees and visitors are safe while in their care. If you have questions, Chris Erwin can be reached at or at cerwin@gsba.com PAGE 2

3 Screening Charter Buses used by School Districts Charter buses are often used by school districts for special events, such as, field trips, athletic events and band trips. How can you help ensure the safety of your students and staff on these trips? It starts with having a good screening process for charter bus companies and the development of a list of approved charter companies. A good first step in the screening process is to develop a questionnaire or application and require each prospective charter company to complete one. A good application will reveal a lot of information about the company s approach to operations and safety. Does the company subcontract for their buses or drivers? Do they carry adequate liability limits? How often are buses inspected? How are drivers qualified? How do they handle roadside emergencies? The application can also provide general information about rates, locations and contact information. A second step in the screening process is to check online resources to do more research on the prospective companies: 1. The Georgia Department of Public Safety maintains a list of licensed bus carriers in the State. The list also provides a link to a report card on each company based on experience. This List of Licensed Bus Carriers can be found online at 2. The Federal Motor Carrier Safety Administration maintains the Safety and Fitness Electronic Record (SAFER) system. You can get a snapshot of most charter companies on their website. The company snapshot provides a concise summary of the company s contact information, size, safety record, a roadside out-of-service inspection summary and crash information. Company Snapshots can be found online at this website Once you have completed the qualification process, it s time to develop an approved list of qualified carriers. The approved list should be updated at least annually. For more information about developing charter bus guidelines or for a sample charter bus company application, please contact David Colvard at GSBA Risk Management Services. His phone number is and his address is dcolvard@gsba.com. GSBA RMS: Focus on School Safety Resources Provided by Risk Management Services Employee Safety Videos - Short and powerful videos for Coaches, Teachers, Custodians and Food Service Personnel Exchange Newsletter - The quarterly newsletter for GSBA Risk Management Services with timely articles and useful information. MIMS (Member Information Management System) Online coverage/policy information and renewal for Member Districts. Risk E-lerts - Informational s on topics of safety and risk control sent on the first of each month. Safety Scenarios - Situational scenarios for your safety personnel to consider. These are sent out on the 15th of each month. Target Solutions - On-line safety training for all member districts free of charge. Over 200 safety courses. Webinars - Monthly webinars are provided on a wide variety of topics. All webinars are recorded and can be found on the GSBA website under Risk Management/Member Resources. White Papers - Access to archived copies of legal briefs on topics such as: Facilities Use, Summer Camps, Volunteers, Employee Discrimination and many more. School Bus Safety Program - Each member who has auto coverage is provided at no cost, the School Bus Safety Program, a nationally recognized bus driver training program. Safety Services Provided at the Districts Request - Facility and Playground Inspection training, Accident/Incident Identification Analysis and Accident Investigations, Continuity of Operations Plans (COOP), Customized Loss Control and Crisis Management Plans and Emergency Response Training. PAGE 3

4 Georgia School Boards Association Risk Management Services January 2015 Child Abuse Reporting... Continued from page 1 psychologists are specifically included in the list of persons required to report when they have reasonable cause to believe that a child has been abused. The other definitions in the statute are very involved. Educators are often surprised to learn that student-onstudent acts, especially sexual acts, are included within the definition of abuse to be reported to DFACS. However, when it comes to school employees and other persons required to report child abuse pursuant to this subsection because that person attends to a child pursuant to such person s duties as an employee or volunteer that person shall notify the person in charge of the facility, or the designated delegate thereof, and the person so notified shall report. It is this provision of the law that became the issue in what may be one of the most significant school cases decided this year. In May v. State, 295 Ga. 388 (2014), a high school teacher was charged for failing to report child abuse when a former student, no longer enrolled at the school and recently transferred to another school district, disclosed to her a previous sexual relationship with a paraprofessional. In response to the filing of a criminal charge against her for failure to report under the statute, the teacher replied that she was not obligated to make a report because the statute only applied when the individual required to report attends to a child pursuant to such person s duties as an employee or volunteer at a school. Although the argument was rejected by the trial court and the Georgia Court of Appeals refused to accept the appeal, the Supreme Court, on certiorari, unanimously agreed with the teacher and dismissed the indictment. As a result of a series of highly publicized tragedies, the State has initiated a centralized child protective services hotline and online reporting system The Court noted that its job in interpreting a statute was to presume that the General Assembly meant what it said and said what it meant and then to interpret the meaning within the entire context of the statute. O.C.G.A identifies both those reporters that must report directly to DFACS and those who work in institutional facilities that must report to the person in charge of the facility or their designee and the Court found this distinction critical. According to the code section, educators are required to report child abuse pursuant to this subsection because that person attends to a child pursuant to such person s duties as an employee or volunteer. Since this child was no longer a student of this teacher, or of the school where she taught, or even of the school district where she was employed, there was no argument that she was attending to this child at the time PAGE 4 she became aware of allegations that would have been the subject of the report. The Supreme Court, in a clearly intentional omission held for decision in a future case, did not address whether a teacher attends only to those students in her classroom, or to all the students in the school where she teaches, or to all the students within the district where she is employed. Although this case arises purely in the criminal context, its decision may have ramifications for the PSC and Code of Ethics investigations and at the local level in the development and interpretation of local child abuse protocols. Standard 9 of the PSC Code of Ethics begins: An educator shall file reports of a breach of one or more of the standards in the Code of Ethics for Educators, child abuse (O.C.G.A ), or any other required report. Thus the ethical standard appears to be the same as the statutory standard. However, educators are often in a position to learn of abuse against children, other than those for whom they are arguably responsible. The May case itself involved another reporting obligation that was not a part of the criminal prosecution, the teacher s obligation under the Code of Ethics to report unethical conduct by the paraprofessional, who was licensed by the PSC. Educators are also aware of responsibilities under Title IX, a federal civil rights statute, to protect students against sexual harassment that interferes with Continued on page 5

5 Child Abuse Reporting... Continued from page 4 the ability to fully participate in the school program. While the legal definitions of child abuse and sexual harassment for Title IX are certainly different, there is substantial overlap. There have been several cases where a student who claimed that he or she was victimized by a staff member or another student has pointed to the failure to report child abuse to DFACS as evidence of deliberate indifference, the very high standard which must be met to establish a right to civil damages against a school district or an educator. As a result of a series of highly publicized tragedies, the State has initiated a centralized child protective services hotline and online reporting system. Many educators have found the centralized system easy to use, but others have complained about extensive holds on the telephone system and slow response times for other reports. Funding and staff cutbacks that have affected school districts have also affected local DFACS offices resulting in fewer people being asked to respond to a growing number of complaints. With all of these changes in the last year, school officials should keep basic principles and best practices in mind: 1 A solid and collaborative relationship with the local DFACS office remains the best defense against claims of wrongdoing by the district and the best protection for students. Not only is a clear protocol important to avoid after-the-fact allegations of a failure to report, but a close working relationship insures that both the district and local DFACS know which complaints merit immediate attention and that there is cooperation during investigations. 2 At each school, the principal or designee must be very knowledgeable of the protocol, have a good relationship with the district-level representative on the protocol committee and have a good relationship with the local DFACS officials. The May decision includes an extensive discussion of the benefits of and reasons for the requirement that employees report through the person in charge of the facility, including improving the quality of the report made, insuring that the report goes to the right place and reducing the burden on DFACS of dealing with miscellaneous and variable reports from multiple sources. To accomplish these purposes, the principal or designee must take the responsibility seriously and focus on accomplishing those goals. 3 Training of all staff remains critical. A lack of certainty promotes confusion about what to do and who to go to with concerns and reports. 4 When in doubt report. The code section provides protection for anyone making a report in good faith. Employees should not be making the legal conclusions about what should and should not be reported. Most of the time, the principal or designee should not be making that conclusion, unless it is very clear PAGE 5 under the local protocol. Always focus on the best interest of the child and protecting the child and leave it to DFACS to determine that further investigation is not needed. Again, a mutually trusting relationship may allow for less formal and quicker communication in questionable cases that will protect the school while perhaps avoiding an unnecessary report. Protecting students remains an essential duty of all school personnel. Understanding the law and how the law is implemented within the school district and school where the employee works not only protects the employee against allegations of wrongdoing, but is the best way of protecting students from actual abuse. STAFF SPOTLIGHT JILL SMITH Mrs. Smith was hired in October as a Claims Adjuster and Underwriting Assistant for GSBA RMS. She has been in the insurance industry for over 15 years having experience specifically with public entities and she has a bachelors degree in Public Affairs from Indiana University. She will be assisting Michael Collins in adjusting claims and supporting John Shore in underwriting. Director Chris Erwin said Mrs. Smith is very qualified for the position and we are excited to have her on our team.

6 Georgia School Boards Association Risk Management Services January 2015 Remembering the Ice and Snow of 2014 The memory of last winter s polar vortex and snow/ice jams is still fresh for many of us. Many of our members experienced one or more incidents related to the winter blasts. As many weather forecasters are predicting another severe winter, it is very important for each school system to be as prepared as possible. The polar vortex arrived January 6th and 7th with extreme temperatures. From January 8th- 30th much of the state experienced up to 19 days with below freezing temperatures. The first snow and ice jam came January 28th-31st. Another serious winter storm came in February 11th-13th. The polar vortex came at a time when many school districts had been out of school for about two weeks due to the holidays. Some had prepared for the extreme freezing temperatures and some had not. Some had attended the GSBA-RMS November 2013 webinar on preparing for winter weather. Some members had utilized the Extended Break and Winter Weather checklists we had provided. Many members had plans in place to check and monitor facilities during the break. This includes unattached buildings such as concession stands, press boxes, and storage facilities. GSBA-RMS recommendation is to take appropriate measures to prevent freezing pipes and report incidents upon discovery. Some tips for districts to follow in preparing for freezing temperatures: Check that ALL heaters are in proper working condition Adjust temp settings and set as needed for freezing temps Attend to all work orders PRIOR to anticipated event(s) Water drips for areas with no/inadequate heating Water cut-offs to certain buildings/areas; such as irrigation systems, concession stands, athletic field restrooms, outdoor water fountains, etc. Insulation of pipes as needed Check for leaks Open cabinet doors to allow more heat to uninsulated pipes Open doors to rooms/hallways without adequate heat Regular cleaning of all facility gutters and drain spouts Monitoring of Facilities during Extended Breaks/Freezing Weather o Assign personnel to check facilities o Regular monitoring of security cameras o Regular monitoring of food service freezers/coolers GSBA-RMS members can access a WINTER WEATHER PREPARATION CHECKLIST through our website. Go to Select: Member Services Select: Risk Management Services Select: Member Services (Members will be required to login to access) Select: Resource Documents Select: Winter Weather Preparation Checklist Members who need assistance with the login information should contact: Mary Bailey mbailey@gsba.com or at PAGE 6

7 A Powerful Alternative for Georgia Public Schools. GSBA: Risk Management Services Fund Members visit online Dade Catoosa Fannin Towns Whitfield Murray Union Rabun 1. Decatur City 8. NE GA RESA *12 2. Valdosta City 9. West GA RESA Walker Gilmer Habersham 3. Jefferson City 10. Pelham City White Lumpkin Stephens Chattooga Gordon 4. NW GA RESA 11. Bremen City Pickens *6 Dawson Banks Franklin Hart 5. Social Circle City Hall Floyd Bartow Cherokee Forsyth 6. Trion City *4 *13 *3 Madison Elbert 7. Griffin RESA Jackson *8 Polk Barrow Cobb Gwinnett Clarke Oglethorpe Haralson Paulding *5 Oconee *1 Wilkes Lincoln *11 Dekalb Douglas Rockdale Talia- Walton Clayton Duffie Newton Greene Morgan Ferro Mc- Columbia Carroll Fulton Henry Warren *9 Fayette Richmond Coweta *7 Butts Jasper Putnam Heard Hancock Spalding Glascock Meriwether Jefferson Burke Pike Baldwin Lamar Monroe Jones Troup Washington Upson Bibb Wilkinson Jenkins Screven Johnson Harris Talbot Crawford Twiggs Emanuel Muscogee Taylor Peach Houston Bleckley Laurens Treutlen Candler Bulloch Effingham Chattahoochee Marion Mont- Macon Schley Pulaski gom- ery Evans Dooly Dodge Bryan Wheeler Stewart Webster Sumter Chatham Toombs Tattnall Wilcox Crisp Telfair Quitman Long Liberty Terrell Lee Jeff Davis Ben Hill Appling Randolph Turner Clay Early Seminole Calhoun Miller *95 Fund Members Baker Dougherty *10 Mitchell Worth Colquitt Tift Decatur Grady Thomas Brooks Cook Irwin Berrien Lowndes *2 Lanier Coffee Atkinson Echols Clinch Bacon Ware Pierce Charlton Wayne Brantley 12. Chickamauga City 13. Gainesville City Glynn Camden McIntosh Delivering A+ Service through Superior Member Relationships

8 5120 Sugarloaf Parkway Lawrenceville, GA Workers Compensation School Board Leaders Liability Superintendent Bonds General Liability Cyber Risk Property Crime Auto Delivering A+ Service Through Superior Member Relationships