Initial Discussion Post:
Most states have laws requiring mandatory reporting for suspicion of child abuse as a condition of professional licensure. Research the law in which you plan to be licensed as an RN and consider the information as you respond to this discussion. Read the following resources: Muller, L. & Fink-Samnick, E. (2015) Mandatory Reporting: Let`s Clear Up the Confusion. Professional Case Management, 20(4), 199-203. DOI: 10.1097/NCM.0000000000000102 Office of Children and Family Services (2014).
Summary Guide for Mandated Reports in New York State. Rensselaer, NY: New York State Office of Children & Family Services. Retrieved from: http://ocfs.ny.gov/main/publications/pub1159text.asp Using your readings and the resources above address the following in your initial response (minimum of 250 words):
M4D1: Mandatory Reporting of Suspected Child Abuse 1. Discuss the common ethical and legal implications of mandatory reporting for nurses regardless of the state in which a Registered Nurse practices. 2. Do the mandatory reporting laws ensure children will be protected? Explain your response. 3.How would the RN overcome the feeling of hesitation to report suspected child abuse? Mandatory Reporting: Let’s Clear Up the Confusion Lynn S. Muller , RN, BA-HCM, CCM, JD , and Ellen Fink-Samnick , MSW, ACSW, LCSW, CCM, CRP Disclaimer: The information contained in this department is for educational purposes only. It is not legal advice, which can be given only by an attorney admitted to practice in the jurisdiction/ state(s) in which you practice.
Is there a topic you would like to see addressed here? We welcome and encourage readers to submit manuscripts and/or questions and concerns, as well as topics you would like to see addressed in this department. Questions and manuscript inquiries are accepted by e-mail at firstname.lastname@example.org . Address correspondence to Lynn S. Muller, RN, BA-HCM, CCM, JD, Muller & Muller, 15 West Main Street, Suite C, P.O. Box 164, Bergenfi eld, NJ 07621. The authors report no confl icts of interest. DOI: 10.1097/NCM.0000000000000102
We can all agree that health care professionals are required by state law to report abuse that they observe while functioning in their professional capacity. The confusion between mandated reporting of abuse, neglect, and exploitation of children and adults, as distinguished from a professional’s mandated duty to warn, remains unclear for many. Duty to Warn is that moment when there is imminent, immediate, and tangible concern about a patient’s potential to harm themselves or specifi c others. The National Conference of State Legislatures lists those states that have laws in place of which there are three types: mandatory reporting, permissive reporting, and well, NONE! This report, however, focuses on mental health professionals. The majority of case managers are nurses and social workers, along with physicians, therapists, and others ( Nurse.com, 2014 ). When we look to a broader view of mandatory reporting, we are confronted with inconsistencies and confusion. For example, West Virginia and many other states require health care professionals to report gunshot wounds and major burns that they reasonably believe may have been the result of a crime (W. Va. Code § 61-2-27 and 27a); however, this requirement is linked to “treatment.”’ In Washington, DC, this requirement is narrowed to physicians only (D.C. Code § 7-2601). Washington State requires hospitals to report to local law enforcement agencies, as soon as it is reasonably possible, whenever they provide treatment for a bullet, gunshot, or stab wound to a patient who is unconscious (ARCW §70.41.440). Since reporting duties vary extensively from state to state, it is important for the case manager to know what requirements affect their practice, based on both professional license and jurisdiction(s). Many questions remain:
• Who must report?
• What must be reported?
• To whom must we report?
• What are the consequences for failing to report?
• What if what we report turns out to be wrong?
• Are the rules for reporting the same in all states?
• Is the duty to report reduced for case managers who are not hands-on healthcare providers?
• What if your patient confi des in you in person or telephonically?
• Is there an ethical duty that goes beyond legal requirements?
• What about confi dentiality?
Child A buse In 1974, the Child Abuse Prevention and Treatment Act (CAPTA) was enacted and is federal law. The law requires all states to have legislation to require health care professionals to report child abuse. “According to CAPTA, child abuse/neglect is defi ned as follows: Any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an imminent risk of serious harm” ( Medscape Nurses, 2008 , p. 2). In 2010, the law was amended reauthorizing certain Copyright © 2015 Wolters Kluwer Health, Inc. Unauthorized reproduction of this article is prohibited. PCM-D-15-00016_LR 199 CM-D-15-00016_LR 199 21/05/15 11:50 AM 1/05/15 11:50 AM Legal & Regulatory Issues 200 Professional Case Management Vol. 20/No. 4 of the reporter, by not disclosing their name, except in those situations where a court has determined that the reporter knowingly made a false report and then only under a Court Order, Ala. Code § 26-14-8 ( Childwelfare.gov, 2013 , p. 5). The need to check and know your obligations and protections in the state(s) in which you practice cannot be overemphasized. As a national health policy issue and part of the Accountable Care Act (ACA), funds were dedicated to a collaboration intended to reduce child abuse. The program, titled “The Affordable Care Act (ACA) Maternal, Infant, and Early Childhood Home Visiting Program,” or MIECHV targets low-income families and provides home visits and other services to expectant mothers, infants, and young children through the admission into kindergarten with a goal of improving the health and welfare of this vulnerable population ( Health Resources and Services Administration, 2011 ). E lder A buse Elder abuse is a broad term including a variety of methods of abuse affecting the adult population. They include such behaviors as both physical and emotional abuse, sexual abuse and assault, fi nancial abuse, isolation, and imprisonment ( U.S. Department of Health and Human Services, 2011a , 2011b ). A chart of all states’ laws requiring health care professionals to report the abuse of adults, including seniors, is available through the American Bar Association and can be accessed at: http://www.americanbar.org/ content/dam/aba/migrated/aging/docs/Mandatory ReportingProvisionsChart.authcheckdam.pdf . Also see “A Case Management Briefi ng on Domestic Violence,” in the September/October 2014 issue of Professional Case Management, for a complete discussion on domestic violence, state reporting requirements, including elder abuse, with case examples ( Muller, 2014 ). C onfi dentiality and P rivilege These days we are all so consumed with whether or not a particular disclosure is permitted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its progeny, it is just as important to remember the duty we owe our patients and, in particular, the most vulnerable of them. “Mandatory reporting statutes also may specify when a communication is privileged. ‘Privileged communications’ is the statutory recognition of the right to maintain confi dential communications between professionals and their clients, patients, or congregants. To enable States to provide protection to maltreated funding to further the effectiveness of CAPTA and adding the Abandoned Infants Assistance Program ( U.S. Department of Health and Human Services, 2011a , 2011b ). Signs and symptoms can be subtle and professional discretion and keen observations must work together in the most sensitive area. Who has a better opportunity than a case manager to observe parent– child and sibling interactions in the home and health care environment? We must also be sensitive to cultural and religious differences, but when abuse and/ or neglect are palpable, the case manager may be in the best position to report to the appropriate authorities. Reports should be clear, accurate, tangible and nonjudgmental. A report should include observations like “I saw…” more than “I heard….” Suspicions should not be ignored, but left to the appropriate state designated agency or police authority to fully investigate. So what is it that requires reporting? In the State of Florida, the law mandates that “A report is required when: A person knows or has reasonable cause to suspect that a child is abused, abandoned, or neglected. A person knows that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care” Florida Ann. Stat. § 39.201 ( Childwelfare.gov, 2013 , p. 17). Michigan requires a “when a reporter has reasonable cause to suspect child abuse or neglect” Mich. Comp. Laws § 722.623 ( Childwelfare.gov, 2013 , p. 32). The standard in Minnesota enlarges the timeframe that one must report. “A report is required when a reporter knows or has reason to believe that a child is being neglected or sexually or physically abused, or has been neglected or physically or sexually abused within the preceding 3 years” Minn. Ann. Stat. § 626.556, Subd. 3 ( Childwelfare.gov, 2013 , p. 33). What if what we report turns out to be wrong? In general, if you make a report in good faith and the information reported turns out to be incorrect, no liability attaches. However, the issue becomes, who determines whether you made a “good faith” report? Therefore, it is important to know what protections are provided where you practice, as it relates to reporting. For example, Alabama protects the identity The need to check and know your obligations and protections in the state(s) in which you practice cannot be overemphasized. Copyright © 2015 Wolters Kluwer Health, Inc. Unauthorized reproduction of this article is prohibited. PCM-D-15-00016_LR 200 CM-D-15-00016_LR 200 21/05/15 11:50 AM 1/05/15 11:50 AM Legal & Regulatory Issues Vol. 20/No. 4 Professional Case Management 201 children, the reporting laws in most States and territories restrict this privilege for mandated reporters” ( Childwelfare.gov, 2013 ). As an example, Georgia law states: “A mandated reporter must report regardless of whether the reasonable cause to believe that abuse has occurred or is occurring is based in whole or in part upon any communication to that person that is otherwise made privileged or confi dential by law” Georgia Ann. Code § 19-7-5(g). A survey of state laws reveals that the only privilege that appears to have greater protection is limited to only 2 relationships: priest/penitent and attorney/ client ( Childwelfare.gov, 2013 ). That being said, that means that health professionals, including the doctor–patient relationship, have no such privilege and in fact are mandated to report abuse they have observed, including the signs and symptoms thereof. Early in my career, I attempted to roll up the sleeve of a 9-year-old boy to take his blood pressure. As I started to lift his sleeve, his posture stiffened. I told him I couldn’t roll the sleeve high enough and asked him to remove his sweatshirt. In fact, what I saw, as the sleeve was elevated were angular raised welts. Once the shirt came off, it became clear that there were many more welts and scars, old and new, causing me report my observations. The child had been the victim of prolonged abuse by his mother. The need for reporting is not always as clear as this particular incident and certainly not easy, but necessary. Reporting is both an ethical and legal duty. M andatory R eporting I ncludes P rofessional S elf -P olicing As professionals, there is a broad range of specifi c duties and obligations as they relate to the actions and inactions of our colleagues. “Nebraska nurses must report themselves to the board of nursing if they lose their jobs for incompetence; negligence; unethical or unprofessional conduct; or physical, mental, or chemical impairment” ( Medscape Nurses, 2008 , p. 1). Other states have no legal duty to self-report in any way at all. New Jersey has one of the strictest laws requiring mandatory reporting with its Health Care Professional Responsibility and Reporting Enhancement Act, aka, the Cullen Act, in the wake of the conviction of serial killer, Charles Cullen; a nurse then licensed in New Jersey and Pennsylvania and was sentenced to 7 life sentences for admitting to the murders of 22 patients; he is suspected in as many as 35 deaths. It has been more than 10 years since the enactment of the law and the consequences have been felt by many professionals, including nurses, and not always for the reason the law was legislated. More often today, behaviors by professionals that once would have been dealt with by counselling internally or referral for drug and alcohol treatment are used as reasons for termination, even of long time otherwise productive employees. In addition, termination is accompanied by mandatory reporting by the employer to the State Professional Licensing Board. Rather than moving on to another employment opportunity, the professional is left to answer questions in the form of an informal investigation or undergo protracted investigation. E xamining Y our S tate ’ s L aw When you review your state’s law, look for: • A defi nition of reportable events or situations; • A description of level of suspicion (i.e., must you have fi rst-hand knowledge, or is “reason to believe” or “suspicion” enough?); • Direction about whom to report to; • Exceptions from duty to report; and • Consequences of failing to report. ( Medscape Nurses, 2008 , p. 4) What does my profession say I should do, even if there is not legal mandate? Whether we recognize it or not, we are each accountable for our professional actions, inactions, and choices. Perhaps it would be easier to overlook the faults of a colleague. In the 2015 Code of Ethics for Nurses, there is a clear acknowledgment that nurses are duty bound to be alert to Questionable and Impaired Practice. The interpretive statements make it clear that nurses are expected to identify and report questionable practices through established systems. “Nurses must protect the patient, the public and the profession from potential harm” ( American Nurses Association, 2015 , p. 13). The Code goes on to say that even when a nurse believes that he or she may be subject to personal risk for reporting bad behavior, the duty to further patient safety remains ( American Nurses Association, 2015 ). The Code of Ethics of National Association of Social Workers (NASW) addresses impairment, incompetence, and unethical conduct of colleagues. “Social workers who believe that a social work colleague is incompetent and have not taken adequate steps to address the incompetence should take action through appropriate channels established by employers, agencies, NASW, licensing and regulatory bodies, and other professional organizations” ( NASW, 2008 , Reporting is both an ethical and legal duty. Copyright © 2015 Wolters Kluwer Health, Inc. Unauthorized reproduction of this article is prohibited. PCM-D-15-00016_LR 201 CM-D-15-00016_LR 201 21/05/15 11:50 AM 1/05/15 11:50 AM Legal & Regulatory Issues 202 Professional Case Management Vol. 20/No. 4 pp. §§2.10, 2.11). Self-policing is at the very core of a profession. Without the bravery and veracity of individual practitioners to meet their ethical and legal duties, the integrity and value of the profession would be greatly compromised. F ailure to R eport The potential consequences for failing to report genuine acts of child, elder, or other abuse that could have been prevented by such a report varies as much as the duty. The consequences range from sanctions by a professional licensing board to criminal culpability. The majority of states “impose penalties on mandatory reporters who knowingly or willfully fail to make a report when they suspect that a child is being abused or neglected. In Florida, a mandatory reporter who fails to report as required by law can be charged with a felony” ( Child Welfare Information Gateway, 2014 , p. 2). C ase M anagement G uideposts “The Code of Professional Conduct for Case Managers with Standards, Rules, Procedures and Penalties” leaves no doubt as to a case manager’s professional duty. From the Preamble to the end, there are eight references to reporting. “Board-Certifi ed Case Managers (CCMs) who become aware of unethical behavior of others are obligated to report such alleged infractions” ( Commission for Case Management Certifi cation, 2015 , p. 2). Case managers are duty bound to be honest and “report known lapses of the standards of care to proper agencies” ( Commission for Case Management Certifi cation, 2015 , p. 6). This is an express statement of our collective responsibility to “police” our profession. No doubt, the fi rst question many are asking is, “What if I’m not a Board Certifi ed Case Manager (CCM)?” Although the answer has not been completely tested, a reasonable attorney and a reasonable jury can deduce that certifi ed or not, the CCM Code and Standards are a recognized standard and may very well apply to a practitioner who is not currently certifi ed. The Code would be viewed in combination with state statutory and case law, along with the Case Management Society of America Standards of Practice for Case Management ( Case Management Society of America, 2010 ). C ONCLUSION There is no doubt that as case managers we each strive to do, not just what is required, but also what is right. Statutory and industry reporting requirements are only one element of our complex professional lives. Ethical obligations are the foundation of all professional behavior, whether specifi cally required by law or not. When performing a legal/ethical analysis, we should fi rst look to existing federal and state laws. If there is a law that applies, then you know what your duties and obligations are and there is no guessing involved. If there is no law on point, then move onto Standards of Practice and Codes of Ethical Conduct controlling your license and certifi cation, if applicable. In this time of electronic communications, no one should feel that they have to fi nd answers on their own. Collaborate with colleagues, call on professional organization and certifying bodies because when you do, each benefi ts from the knowledge and experience of the other. R EFERENCES American Nurses Association . ( 2015 ). Code of ethics for nurses with interpretive statements. Silver Springs, MD : Author . Commission for Case Management Certifi cation . ( 2015 ). Code of professional conduct for case managers. Mt. Laurel, NJ : Author . Childwelfare.gov . ( 2013 ). State statutes. Retrieved from Mandatory Reporters of Child Abuse and Neglect: https:// www.childwelfare.gov/pubpdfs/manda.pdf Child Welfare Information Gateway . ( 2014 ). Penalties for failure to report and false reporting of child abuse and neglect. Retrieved from https:// www.childwelfare.gov : https:// www.childwelfare.gov/pubPDFs/report.pdf Case Management Society of America . ( 2010 ). CMSA standards of practice for case management. Little Rock, AR : Author . Health Resources and Services Administration . ( 2011 ). Affordable Care Act (ACA) maternal, infant, and early childhood home visiting program. Retrieved from https:// www.cfda.gov/index?s = program&mode = form&tab = core&id = c0405b962e3f69a46bdc6eb26 a71dedf Medscape Nurses . ( 2008 ). Dilemmas in mandatory reporting for nurses. Retrieved from http://www.medscape .org/viewarticle/585562_4 Muller , L. S.( 2014 ). Case management briefi ng on domestic violence . Professional Case Management Journal, 19( 5 ), 237-240 . National Association of Social Workers . ( 2008 ). Code of ethics of the National Association of Social Workers. Retrieved from http://www.socialworkers.org/pubs/ code/code.asp Nurse.com . ( 2014 ). Careers in nursing. Retrieved from http://www.nurse.com/students/CareersInNursing/ Specialties/CM.htm U.S. Department of Health and Human Services . ( 2011a ). About CAPTA a legislative history. Retrieved from Child Welfare Information Gateway: http://www .childwelfare.gov/pubPDFs/about.pdf U.S. Department of Health and Human Services . ( 2011b ). About CAPTA a legislative history. Retrieved from Copyright © 2015 Wolters Kluwer Health, Inc. Unauthorized reproduction of this article is prohibited. PCM-D-15-00016_LR 202 CM-D-15-00016_LR 202 21/05/15 11:50 AM 1/05/15 11:50 AM Legal & Regulatory Issues Vol. 20/No. 4 Professional Case Management 203 Child Welfare Information Gateway: fi le:///C:/ Documents%20and%20Settings/LYNN/My%20 Documents/PCMJ/PCMJ.2015/JULY.AUG/CAPTA. Leg%20Hx.pdf Lynn S. Muller, RN, BA-HCM, CCM, JD, is a nurse attorney and managing partner of Muller & Muller. She is a CCM with extensive nursing and case management experience. Her practice includes family law, wills, trusts and estates, defense of health care professionals before the state licensing boards, as well as transactional and consulting work for practitioners and health care companies on such issues as regulatory investigation and compliance. Lynn is an adjunct professor in the Doctor of Nursing Program at Saint Peters University, where she teaches Legal and Ethical Parameters of Advance Practice Nursing and Health Policy and Politics. She is the author of numerous articles in professional journals and is the author of the legal chapters of the third edition of Case Management: A Practical Guide for Education and Practice and the second edition of CMSA Core Curriculum for Case Management . She is a former commissioner of CCMC, past president of the NJ Chapter of CMSA, and a former public defender, judge, and councilwoman. Ellen Fink-Samnick, MSW, ACSW, LCSW, CCM, CRP, is principal of EFS Supervision Strategies, LLC. Known and respected as “The Ethical Compass of Case Management.” She is a popular presenter and esteemed author with many publications across diverse media. Ellen is adjunct faculty for George Mason University’s College of Health & Human Services, Director of Social Work Education for Athena Forum, LinkedIn Moderator for Ellen’s Ethical Lens©, trainer for the National Association of Social Workers, and serves as a current Editorial Board Member for Lippincott’s Professional Case Management Journal. Ellen has served as a Commissioner for CCMC and Chair of their Ethics & Professional Conduct Committee, plus in a variety of leadership roles amid the industry’s professio #2 I am unable to download the 2nd article however you can retrieve it your self the web site is listed above.