State considering major expansion of child abuse reporting laws
Proposal raises fears of racial disproportionality
FOR YEARS, Larry Nassar sexually abused female athletes under the guise of medical treatment while serving as the doctor for USA Gymnastics. Nassar was eventually convicted on multiple felony charges and sentenced to more than 100 years in prison, and officials at USA Gymnastics and Michigan State University, where he also worked, were accused in civil lawsuits of enabling the abuse.
If someone like Nassar were abusing children in Massachusetts, officials at a private athletic organization or a higher education institution would not be required under the state’s mandated reporter law to report him to the Department of Children and Families – because they are not considered “mandated reporters.” That means the state could not prosecute coaches for failing to report suspected abuse, DCF might never learn of it, and anyone who did report him would not have legal protections against employer retaliation or civil lawsuits.
A 2018 report by a legislative committee recommended the state update its mandated reporter law to fix what it called a “glaring loophole” that puts youth athletes at higher risk for abuse.
No one is arguing against adding youth coaches to the list of mandated reporters. But a comprehensive look at the state’s mandated reporter law prompted by youth sports scandals could now lead to a far more sweeping expansion of the law. A proposal being considered by a special commission examining the law would greatly expand the list of who is a mandated reporter. It would also clarify the definitions of abuse and neglect in a way that could encourage more reporting.
“The intent and the push seems to be to cast the widest net humanly possible and funnel all of that through DCF, and have them be the determiner to decide whether they’re going to judge it as abuse or neglect,” said Rebecca Greening, an attorney who represents parents and children in child welfare cases. “There is a huge harm and burden on families being filed on and investigated for things related to poverty, and living in fear that your children will be taken away by the state is traumatic.”
There are also concerns about an increase in racial disproportionality in a system that already sweeps up in its net a large number of black and Latino families.
“If you have a system that encourages people to act first and think later, you’re encouraging people to act on their instincts as opposed to a thoughtful analysis of the situation, which is going to encourage racially biased reporting,” said Susan Elsen, a staff attorney in the Massachusetts Law Reform Institute’s family and child justice unit.
The Massachusetts child welfare system is based heavily on reports from mandated reporters, people like teachers and doctors who come into contact with children and are required to report suspected abuse and neglect.
The mandated reporter commission was created by a 2019 child health and welfare bill, after reports issued over several years suggested that updates were needed to the state’s mandated reporter law, because of the sports coaching issue and other concerns, like a lack of standardized training and confusion over how an individual working within an institution, such as a school, is required to report.
Middlesex District Attorney Marian Ryan, a commission member, said the abuse by coaches triggered an opportunity to reconsider the entire statute in a comprehensive way. “This statute hasn’t had a comprehensive look in a very long time,” Ryan said. “It’s been amended a few times, adding things like clergy and certain other groups, but no one stepped back, put it all together and looked at all of it. That’s really where our focus has been. How do you make this work best to protect kids and at the same time be culturally competent?”
A proposal now being circulated for public comment would vastly expand who is a mandated reporter. Mandated reporters would include, for the first time, pharmacists, medical students, and urgent care personnel; higher education staff, faculty, and coaches; state agency personnel who interact with children; computer technicians who may discover child pornography; paid and unpaid mentors; librarians; people working in organizations that run camps, sports programs, or other youth activities; and others.
The proposal would require reporting when someone suspects a child is at “substantial risk” of suffering an injury, rather than the current standard of once they are injured. In newly proposed definitions of abuse and neglect, the proposal eliminates a clause that says neglect should not be reported if it is due solely to poverty or disability. The proposal says the point of the change is to focus on what the child is experiencing, without requiring someone who is untrained to investigate the reasons the child might be experiencing it.
The commission is also considering increasing the penalties for failing to report from $1,000 to between $1,000 and $10,000, with the potential for loss of a professional license.
The commission was supposed to issue a report July 31, 2020, but asked lawmakers for an extension until December 31, 2020. In a December status report, the commission told the Legislature it needed more time still to hold public hearings and gather feedback. “The Commission needs additional time not only to fully design such complex recommendations, but also because several topics addressed by the Commission were found to be significantly more complicated than initially anticipated,” the commission wrote.
The state-appointed child advocate, Maria Mossaides, who serves as the commission chair, said the proposals are an attempt to address the concerns raised by legislative reports and other issues that arose related to training, institutional reporting, and clarifying definitions.
Some of it is about creating an inclusive list of reporters that incorporates all professionals who interact with children in a more standardized way. For example, the law now covers hospital personnel but not urgent care center personnel; it covers licensed first responders, but not firefighters, who are unlicensed. The proposal would cover recreational activities more thoroughly.
Mossaides said it also became clear during discussions about who should be a mandated reporter that the commission needs to clarify the definition of when someone must report. The requirement today is someone must report if they have “reasonable cause” to believe a child is suffering physical or emotional harm from abuse or neglect, but none of those terms are well-defined.
Mossaides said there is logic to requiring someone to report based on a suspicion of abuse, rather than a stricter standard, since child protection officials do not want untrained individuals to conduct their own investigation, which could taint a professional investigation later on.
Mossaides said the commission is aware of concerns about racial disproportionality, but she suggested that could be addressed through better training and developing ways for mandated reporters to connect families with services. For example, if a child seems hungry, a mandated reporter should be able to help that family apply for food stamps. Ideally, a teacher should be trained to ask a hungry child why they are hungry, then differentiate between a family that needs money for food, and a family where a child is being punished or a parent is forgetting to feed their child.
“Current law says licensed mandated reporters need to receive training, but there’s no one in charge of training, so no one’s responsible for deciding what content is in the training or how to provide training,” Mossaides said.
However well-intentioned the draft recommendations may be, advocates for children and families are raising serious concerns about their unintended consequences, including the risk of increasing unsubstantiated reports and trapping more families of color in the system.
A letter to the commission signed by four attorneys who represent children in DCF-related cases warns that the recommendations “will not improve protection of children in any meaningful way” and “will increase the number of unsubstantiated and inappropriate 51A reports, resulting in significant, long-lasting harm to children and their families.”
The attorneys added, “The proposed new language would introduce greater subjectivity and therefore potential for bias; this would almost certainly result in increased racial disproportionality in the Massachusetts child welfare system.”
According to DCF statistics from the second half of 2020, Hispanic/Latinx children were the subject of reports of abuse and neglect (“51A reports”) at 2.1 times the rate of non-Hispanic children, and black children were subject to reports at 2.1 times the rate of white children.
After an initial filing, the potential next steps include the opening of a case, a finding of abuse or neglect and, in the most serious instances, the removal of children from their home. The greatest racial disparities, however, are at the initial report filing stage, which raises troubling questions about biases in the mandated reporting system, something advocates say the proposed changes will only make worse.
In fiscal 2020, 37 percent of 51A reports were screened out for not meeting DCF’s criteria for suspected abuse or neglect. Of those that were screened in, investigations ultimately found there was reasonable cause to believe that there was abuse or neglect in 59 percent of cases.
In their letter, the four attorneys who advocate for children in DCF cases go on to write that schools file DCF reports for reasons that include cultural misunderstandings or bias, coercion to get a family to agree to an educational plan, as a strategy to address absenteeism, a way to get additional resources from DCF, or because of a failure to communicate with the family.
The letter lists 64 examples of improper filings. Among them:
- A Boston teacher filed a report after a 7-year-old black boy fell asleep in class and said it was because his mother gave him a new pill. His pediatrician had prescribed him new ADHD medication.
- A teacher and nurse in Braintree filed a report after seeing cup marks on an 11-year-old Vietnamese boy. The boy had a fever and cold the previous day, and his mother had used an ancient Vietnamese medicine practice of putting warm cups on the boy’s skin to sooth his sore muscles.
- A Boston school filed a report because school officials sent a 9-year-old black boy to the hospital after the boy broke a bulletin board, and it took his parent, who works in Worcester, 90 minutes to get there.
- A Boston school filed a report because a parent took a 5-year-old black child out of school for two days to attend their grandmother’s 90th birthday party.
Elizabeth McIntyre, a senior attorney at Greater Boston Legal Services who represents children in education disputes and signed onto the letter, said the families she represents – generally poor children of color – are often dragged into DCF investigations for little cause, and the experience can be “devastating.” She worries that broadening the definition of abuse and neglect to capture more cases, and creating more incentives to report, will entrap more families. “The child welfare system as it is now disproportionately targets families of color, and if we widen it we’re only going to capture more of those kids,” McIntyre said.
She is particularly worried about removing the poverty exemption from the definition of neglect. “We’re going to say a parent who flees an abusive partner with a young child and is trying to find shelter and can’t find it that night is neglectful because they can’t afford a hotel room for one night and can’t find emergency shelter quickly enough?” McIntyre asked. “I don’t understand how that could possibly be in the interest of children.” McIntyre said a better system for dealing with poverty-related issues would be to steer the family toward resources for getting help, rather than getting DCF involved, which carries the risk of a parent losing custody.
Michael Gregory, who teaches education law at Harvard Law School and is managing attorney at the Trauma and Learning Policy Initiative, which helps traumatized children succeed in school, said the proposed changes represent “a sweeping expansion” of the mandated reporter law. He worries that the law could “become a major source of surveillance” if, for example, a television repair person entering a home becomes a mandated reporter. “The more people you have participating in that surveillance, the greater the likelihood that racial disproportionality will increase, particularly when it’s non-professionals, those not trained in working with children, who would be rendering reports to DCF,” Gregory said.
Gregory also voiced concerns about removing the poverty and disability exemptions from the definition of neglect. “Nobody’s saying that families experiencing poverty, or where disability is a factor, shouldn’t be entitled to lots of support. They should,” he said. “But whether an agency that can take your children away from you is the place they should be getting support is another question.”
Gregory added that if there is a flood of unsubstantiated reports, that diverts DCF resources away from actual cases of abuse and neglect.
Mossaides said just because DCF ultimately finds a complaint is unsubstantiated does not meant there was not a legitimate concern. She said cases of neglect reported to DCF are not generally about a child without a winter coat – they often involve things like parents abusing serious drugs and forgetting to feed their child or take them to school.
Asked about Mossaides’s contention that training will address the problems, advocates agree that training is vital – but say it may not justify an expansion of the system. “Training will not rescue a bad policy,” McIntyre said.
Once the committee’s recommendations are finalized, they will go to the Legislature.Rep. Michael Finn, a West Springfield Democrat who co-chairs the Committee on Children, Families and Persons with Disabilities, said he anticipates lawmakers will act. Finn said he thinks more people, like coaches, should be made mandated reports to ensure that children are protected and cases of abuse and neglect are detected. He is less swayed by advocates’ concerns about unsubstantiated reporting. “I do know a lot of concerns are out there that it’s too prevalent, people are just filing 51As frivolously. I don’t believe that,” Finn said. “There may be some people too quick to file, but at the end of the day, if the intent of the law is to protect children, that needs to be paramount.”
Finn said while Massachusetts has a high rate of 51A filings, that is by design. “We’ve intentionally set the bar low to qualify for 51A because we want to make sure people are protected,” Finn said.