REPORTING CHILD ABUSE IN AN EDUCATIONAL SETTING

Transcription

1 BOARD OF COOPERATIVE EDUCATIONAL SERVICES SOLE SUPERVISORY DISTRICT FRANKLIN-ESSEX-HAMILTON COUNTIES REPORTING CHILD ABUSE IN AN EDUCATIONAL SETTING The Franklin-Essex-Hamilton Board of Cooperative Educational Services recognizes its responsibilities to comply with the New York State Consolidated Law Article 23-B requiring certain school employees to report allegations of child abuse in and educational setting. I. CHILD ABUSE IN EDUCATIONAL SETTING DEFINITIONS Child abuse shall mean any of the following acts committed in an educational setting by an employee or volunteer against a child: i. intentionally or recklessly inflicting physical injury, serious physical injury or death, or ii. iii. iv. intentionally or recklessly engaging in conduct which creates a substantial risk of such physical injury, serious physical injury or death, or any child sexual abuse as defined in this section, or the commission or attempted commission against a child of the crime of disseminating indecent materials to minors pursuant to Article 235 of the Penal Law. Child shall mean a person under the age of 21 years enrolled in a school district in this State, other than a school district within a city having a population of one million or more. Employee shall mean any person receiving compensation from a school district or employee of a contracted service provider or worker placed within the school under a public assistance employment program, pursuant to title nine-b of article five of the social services law, and consistent with the provisions of such title for the provision of services to such district, its students or employees, directly or through contract, whereby such services performed by such person involve direct student contact. Volunteer shall mean any person, other than an employee, who provides services to a school or school district, which involve direct student contact. Educational setting shall mean the building and grounds of a public school district, the vehicles provided by the school district for the transportation of students to and from school buildings, field trips, co-curricular and extra-curricular activities, both on and off school district grounds, all co-curricular and extra-curricular activity sites, and any other location where direct contact between an employee or volunteer and a child has allegedly occurred. Administrator or school administrator shall mean a principal of a public school, charter school or board of cooperative educational services, or other chief school officer. 1

2 Law enforcement authorities shall mean a municipal police department, sheriff s department, the division of state police or any officer thereof. Notwithstanding any other provision of law, law enforcement authorities shall not include any child protective service or society for the prevention of cruelty to children as such terms are defined in section four hundred twenty-three of the social services law. Parent shall mean either or both of a child s parents or other persons legally responsible for the child. Child sexual abuse shall mean conduct prohibited by article one hundred thirty or two hundred sixty-three of the penal law. II. DUTIES OF EMPLOYEES The law imposes reporting requirements on teachers, administrators, school nurses, school guidance counselors, school psychologists, school social workers, school board members and all other school personnel required to hold a teaching or administrative license or certificate. When these employees receive an allegation of child abuse by an employee or volunteer in an educational setting, they must take the following steps: Upon receipt of an oral or written allegation of child abuse in an educational setting, the employee must promptly complete the Child Abuse in an Educational Setting report form (Appendix 1). Upon completion of the report form, the employee must personally deliver it to the school building administrator of the school in which the child abuse allegedly occurred. If the allegation(s) involves a child who was allegedly abused by an employee or a volunteer of a school in another school district, the employee must promptly forward the report form to the superintendent of schools of the school district of attendance and the school district where the abuse allegedly occurred. III. DUTIES OF SCHOOL BUILDING ADMINISTRATORS In all cases, upon receipt of a report form, the school building administrator must review the form and determine if there is reasonable suspicion to believe that an act of child abuse, as defined by law, has occurred. If he or she finds reasonable suspicion to believe that an act of child abuse has occurred, additional steps must be taken which differ depending upon the individual who has made the allegation. 2

3 Child makes the Allegation Promptly notify the parent of the child that an allegation of child abuse in an educational setting has been made. Promptly provide the parent with the written statement setting forth parental rights, responsibilities and procedures prepared in accordance with the Commissioner s regulations (8 NYCRR 100.2(hh)). Promptly provide a copy of the completed report form to the superintendent. Promptly forward a copy of the completed report form to the appropriate law enforcement authorities. The report to law enforcement may not be delayed by reason of inability to contact the superintendent. Parent Makes the Allegation Promptly provide the parent with the written statement setting forth parental rights, responsibilities and procedures prepared in accordance with the Commissioner s regulations (8 NYCRR 100.2(hh)). Promptly provide a copy of the completed report form to the superintendent. Promptly forward a copy of the completed report form to the appropriate law enforcement authorities. The report to law enforcement may not be delayed by reason of inability to contact the superintendent. Person other than the Parent or the Child Makes the Allegation Promptly notify the parent of the child that an allegation of child abuse in an educational setting has been made. Promptly provide the parent with the written statement setting forth parental rights, responsibilities and procedures prepared in accordance with the Commissioner s regulations (8 NYCRR 100.2(hh)). Ascertain from the reporting employee the source and basis for the allegation and complete that portion of the report form. Promptly provide a copy of the completed report form to the superintendent. Promptly forward a copy of the completed report form to appropriate law enforcement authorities. The report to law enforcement may not be delayed by reason of inability to contact the superintendent. 3

4 IV. DUTIES OF THE DISTRICT SUPERINTENDENT In most cases, the school building administrator will receive the completed report form from an employee and make the reasonable suspicion determination. However, there are situations in which the superintendent will receive the report form directly and he or she will be responsible for making the reasonable suspicion determination such as: Where the school building administrator receives the oral or written allegation and is required to complete the report form; Where it is alleged that a child was abused by an employee or volunteer of a school other than a school within the school district where the child attends. In addition, the district superintendent may receive an oral or written allegation of child abuse in an educational setting from local law enforcement officials or from child protective services. In these cases, the district superintendent is responsible for completing the report form and, subsequently, making the reasonable suspicion determination. If the district superintendent finds reasonable suspicion to believe that an act of child abuse has occurred, as defined by law, additional steps must be taken which differ depending on the individual who has made the allegation. The steps for reporting child abuse in an educational setting by the district superintendent shall follow the steps for school building administrators as previously noted in Section III: Duties of School Building Administrators. In all cases where a completed report is forwarded to the appropriate law enforcement authorities and the employee or volunteer alleged to have committed an act of child abuse holds a certification or license issued by the New York State Education Department, the district superintendent must also refer such report to the Commissioner of Education. V. CONFIDENTIALITY OF RECORDS The only persons authorized to receive the written report form and any related materials are the school building administrator and the district superintendent. The law requires that all reports, records, photographs and other material submitted remain confidential and may not be disclosed except to law enforcement authorities involved in the criminal investigation of child abuse in an educational setting or as expressly authorized by law or pursuant to a court ordered subpoena. Willful disclosure of a written record required to be confidential, to a person not authorized to receive or review such record is a class A misdemeanor. The law requires that school building administrators and superintendents exercise reasonable care to prevent unauthorized disclosure. VI. LEGAL IMPLICATIONS A. Immunity The law provides immunity from civil liability for employees, volunteers, school building administrators and superintendents who reasonably and in good faith make a report of child abuse in an educational setting in the manner described in the law. The law also provides immunity from civil liability to school building administrators and superintendents who reasonably and in good faith forward a copy of the report form to a person or agency as required by law and in the manner described in the law. 4

5 B. Liability The requirements set forth within the law are mandatory. Willful failure of an employee to prepare and submit a report form as required by the law is a Class A misdemeanor. The law also provides that a willful failure of a school building administrator or superintendent to forward a copy of the report form to the appropriate law enforcement authority is a Class A misdemeanor. In addition, the Commissioner of Education can also fine a school building administrator or a superintendent up to $5,000 for failure to forward a copy of the completed report form to the appropriate law enforcement authorities. C. Expungement A report that does not, after investigation, result in a criminal conviction shall be expunged from any record which may be kept by the Franklin-Essex-Hamilton BOCES with respect to the subject of such a report after a period of five years from the date of the making of such report. D. Unreported Resignations of Voluntary Suspensions The law prohibits school building administrators or superintendents from agreeing to withhold from the appropriate law enforcement authorities, a superintendent or the Commissioner of Education, where appropriate, an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by law, in return for the resignation or voluntary suspension of the alleged perpetrator. Violation of this prohibition can result in a class E felony charge and a civil penalty of up to $20,000. VII. TRAINING OF STAFF MEMBERS Training regarding the procedures set forth in article 23-B of the Education Law for all current and new teachers, school nurses, school counselors, school psychologists, school social workers, school administrators, other personnel required to hold a teaching or administrative certificate or license, and school board members shall include, but is not limited to, training regarding: a. the duties of employees specifically enumerated in Education Law, section 1126 upon receipt of an allegation of child abuse in an educational setting; b. confidentiality of records pursuant to Education Law, section 1127; c. duties of school administrators and superintendents upon receipt of a report pursuant to Education Law, section 1128, and the additional duties of superintendents pursuant to Education Law, section 1128-a; d. penalties for failure to comply pursuant to Education Law, section 1129; e. notification by a district attorney pursuant to Education Law, section 1130, and actions taken upon criminal conviction of a licensed or certified school employee pursuant to Education Law, section 1131; and 5

6 f. the prohibition set forth in Education Law, section 1133 with respect to an unreported resignation or voluntary suspension of an employee or volunteer against whom an allegation of child abuse in an educational setting is made. Each school shall annually provide to each teacher and all other school officials a written explanation pursuant to section 3028-b of the Education Law concerning the reporting of child abuse in an educational setting, including the immunity provisions of Education Law, section Adopted by Board of Education February 16,

7 CHILD ABUSE IN AN EDUCATIONAL SETTING CONFIDENTIAL REPORT OF ALLEGATION SUBJECT CHILD Name Last First MI Address School Grade Sex (M, F, Unknown) Age or Birthday(Mo/Day/Yr) PARENT OF SUBJECT CHILD Name Address (if different) SOURCE OF ALLEGATION (Check as Appropriate) Child Parent Other-Name Relationship to Child (if any) ALLEGED PERPETRATOR (EMPLOYEE OR VOLUNTEER) Name School District School Building School Position SPECIFIC ALLEGATION Use this space to provide information to describe or explain the circumstances surrounding the allegation. (attach additional sheets if necessary) REPORTER INFORMATION Name School District School Address School Telephone Relationship to Child (if any) Teacher School Guidance Counselor School Nurse School Psychologist Administrator School Board Member School Social Worker School personnel required to hold teaching or administrator license or certification Date Submitted to Administrator / / Signature FOR ADMINISTRATOR USE ONLY FOR SUPERINTENDENT OF SCHOOL USE ONLY Reasonable Suspicion Yes No Reasonable Suspicion Yes No Date Submitted to Superintendent / / Name/Signature Date Submitted to Law Enforcement / / Name/Signature Date Submitted to Law Enforcement / / Name/Signature Date Submitted to Commissioner / / Name/Signature

8 STATEMENT OF PARENTS RIGHTS PERTAINING TO CHILD ABUSE IN AN EDUCATIONAL SETTING Duties of employees specifically enumerated in this section upon receipt of an allegation of child abuse in an educational setting 1. In any case where an oral or written allegation is made to a teacher, school nurse, school guidance counselor, school psychologist, school social worker, school administrator, school board member or other school personnel required to hold a teaching or administrative license or certificate, that a child has been subjected to child abuse by an employee or volunteer in an educational setting, such person shall upon receipt of such allegation: (a) Promptly complete a written report of such allegation including the full name of the child alleged to be abused; the name of the child s parent; the identity of the person making the allegation and their relationship to the alleged child victim; the name of the employee or volunteer against whom the allegation was made; and a listing of the specific allegations of child abuse in an educational setting. (b) Except where the school administrator is the person receiving such oral or written allegation, promptly personally deliver a copy of such written report to the school administrator of the school in which the child abuse allegedly occurred. 2. In any case where it is alleged that a child was abused by an employee or volunteer of a school other than a school within the school district of the child s attendance, the report of such allegations shall be promptly forwarded to the superintendent of schools of the school district of the child s attendance and the school district where the abuse allegedly occurred, whereupon both school superintendents shall comply with the procedures as set forth herein. Duties of school administrators and superintendents upon receipt of a written report alleging child abuse in an educational setting Upon receipt of a written report described above alleging that a child has been abused in an educational setting, a school administrator or superintendent shall, where there is a reasonable suspicion to believe that an act of child abuse has occurred: 1. Where the subject child has made the allegation: (a) promptly notify the parent of such child that an allegation of child abuse in an educational setting has been made regarding such child and promptly provide the parent with a written statement prepared pursuant to regulations of the commissioner setting forth parental rights, responsibilities and procedures under this article; (b) where a school administrator receives a written report, promptly provide a copy of such report to the superintendent; and (c) promptly forward such report to appropriate law enforcement authorities. 2. Where a parent of the child has made the allegation: (a) promptly provide the parent of such child with a written statement prepared pursuant to regulations of the commissioner setting forth parental 1

9 rights, responsibilities and procedures under this article; (b) where a school administrator receives a written report, promptly provide a copy of such report of the superintendent; and (c) promptly forward such report to appropriate law enforcement authorities. 3. Where a person other than the subject child or the parent of a subject child has made the allegation; (a) promptly notify the parent of the subject child that an allegation of child abuse in an educational setting has been made regarding his or her child and promptly provide the parent with a written statement prepared pursuant to regulations of the commissioner setting forth parental rights, responsibilities and procedures under this article; (b) ascertain from the person making such report the source and basis for such allegation; (c) where a school administrator receives a written report, promptly provide a copy of such report to the superintendent; and (d) promptly forward such report to appropriate law enforcement authorities. Additional duties of superintendents 1. Where a superintendent of schools forwards to law enforcement a report as described herein, he or she shall refer such report to the commissioner where the employee or volunteer alleged to have committed an act of child abuse as defined by applicable law holds a certification or license issued by the department. 2. A report which is made pursuant to this article and does not, after investigation, result in a criminal conviction shall be expunged from any record which may be kept by a school or school district with respect to the subject of such a report after a period of five years from the date of the making of such report or at such earlier time as such school, or school district, as the case may be, determines. Confidentiality of records Reports and other written material submitted in accordance with these procedures and photographs taken concerning such reports in the possession of any person authorized to receive such information, pursuant to these procedures, shall be confidential and shall not be redisclosed except to law enforcement authorities involved in an investigation of child abuse in an educational setting or as expressly authorized by law or pursuant to a court-ordered subpoena. A school administrator or a school superintendent shall exercise reasonable care in preventing such unauthorized disclosure. Willful disclosure of a written record required to be kept confidential pursuant to this action to a person not authorized to receive or review such record is a class A misdemeanor. (Added L.2000,c. 180,, eff. July 1, 2001.) Penalties for failure to comply 1. Willful failure of an employee to prepare and submit a written report of an allegation of child abuse as required by this article shall be a class A misdemeanor. 2. (a) Willful failure of a school administrator or superintendent to submit a written report of child abuse to an appropriate law enforcement authority, as required by this article, shall be a class A misdemeanor. 2

10 (b) Notwithstanding paragraph (a) of this subdivision, any failure to submit a written report of child abuse to an appropriate law enforcement authority as required by this article, shall be punishable by a civil penalty not to exceed five thousand dollars upon an administrative determination by the commissioner. Notification by district attorney 1. Where a criminal investigation of an allegation of child abuse by an employee or volunteer is undertaken in response to a report forwarded by a school administrator or superintendent to law enforcement authorities pursuant to the procedures set forth herein, and where law enforcement authorities have provided such report to the district attorney and have requested assistance, as soon as practicable, it shall be the responsibility of the district attorney to notify the superintendent of schools of the district where the acts of child abuse allegedly occurred and of the school district where the child is attending, if different, of an indictment or the filing of an accusatory instrument against the employee or volunteer against whom an allegation of child abuse in an educational setting was made. The district attorney shall notify the superintendent of schools of the distirct where the acts of child abuse allegedly occurred and of the school district, if different, where the child is attending of the disposition of the criminal case against such employee or volunteer or the suspension or termination of the criminal investigation of such employee or volunteer. Actions upon criminal conviction of a licensed or certified school employee 1. In the event that a licensed or certified school employee against whom an allegation of child abuse in an educational setting has been made, is convicted of any crime involving child abuse in an educational setting, the district attorney shall provide notice thereof to the commissioner, the superintendent of schools of the district where the acts of child abuse occurred and to the school district where the child is attending school, if different. 2. Upon receiving notice of a conviction from a district attorney as set forth above, the commissioner shall, without delay, proceed to determine whether the individual possesses good moral character, in accordance with the regulations of the commissioner governing such a determination. 3. Nothing in this article shall be construed as creating any authority to take an adverse action against an employee or volunteer by virtue of a report pursuant to this article which has not been substantiated. 4. An employee or volunteer who has adverse action taken against him or her by virtue of or in connection with any report made pursuant to this article shall be entitled to receive a copy of such report and respond to the allegations of child abuse made therein. Any employee or volunteer shall, in addition, be entitled to seek disclosure of such report pursuant to article six of the public officers law. 3

11 Duties of the commissioner; child abuse in an educational setting 1. The commissioner shall prepare a form for the recording and transmitting of allegations of child abuse in an educational setting. Such form shall include; (i) all definitions set out in Education Law eleven hundred twenty-five of this article; and (ii) adequate space for the inclusion of any other information which the person making or filing the report believes would be helpful in describing or explaining the circumstances surrounding an allegation of child abuse in an educational setting in accordance with the provisions of this article. 2. The commissioner shall promulgate rules and regulations for training necessary for the implementation of this article. Unreported resignation against public policy 1. A school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by this article in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made. 2. Each violation of subdivision one of this section shall constitute a class E felony, and shall also be punishable by a civil penalty not to exceed twenty thousand dollars. 4