Initiating the CPS Report to the Authorities

Overview

What is at Stake?

Investigations about sexual abuse begins when a concern is first communicated to the authorities. There are a variety of issues about this first stage of Child Sexual Abuse (CSA) investigations. What is at stake in conducting this first step properly? Mistakes in reporting suspected CSA can lead to many problems including:

• No investigation at all
• Repeated abuse of the child
• Causing harm to the child through "Secondary Victimization"
• Undoing the legal case
• The possibility of creating "False Memories"
• Confusing the child about what the facts really are
• Liability of civil or even criminal action against the reporting party

In contrast, proper reporting of suspected CSA can lead to important positive outcomes including:

• Exploring an important concern about a child
• The prevention of future abuse
• The child perceiving the investigation as "helpful" vs. "traumatic"
• A forensically defensible legal case
• Protecting innocent adults from harm by increasing accuracy of the investigative process
• Keeping the child's understanding of what happened clearer in his/her mind
• Protecting reporting parties from civil/criminal action

Who Can Report Sexual Abuse?

Anyone can report concerns that a child may be the victim of any form of abuse or neglect. The reporter is protected from civil suit if the report is made in good faith (with the intention of helping).

However, most people who work with children have a legal obligation and must report when they suspect abuse or neglect has occurred.

A "mandated reporter" is everyone whose work involves children. If you are unsure who is a mandated reporter, refer to the current Georgia state child abuse reporting law, O.C.G.A. 19-7-5. This law obligates the following persons to report to the Department of Family and Children Services or law enforcement (preferably DFACS). Failure to report will be in violation of the law:

• Medical personnel
• Dentists
• Psychologists
• Pediatricians
• Counselors
• Marriage and Family Therapists
• Social Workers
• School professionals
• DFACS personnel
• Law enforcement personnel
• Child service organization personnel

This mandated reporting law is part of the Georgia Code. (The Georgia Code website link is available on the Related Links page of this website.)

Other Georgia Laws Affecting Reporting Issues

Complete and detailed listings of Georgia laws are available via Internet or printed copies can be purchased. By using the website shown for the Georgia Code you can have the current edition in use.

Other Georgia Codes are important to know about when dealing with CSA issues. A typical mandated reporter without legal training needs to know about other laws as well. For example, does your organization keep records on the children you serve? Then you need to know about the laws that pertain to children's records.

Medical Records

In Georgia, there is no evidentiary privilege regarding medical records. However, Georgia Code 24-9-40 indicates that medical records should be released only in response to a subpoena or a request for production of documents. Remember to certify that it is a correct copy and mail by certified mail.

However, you can only send the documents that are relevant to the question being addressed because of laws of Privileged Communication. The safest way around this dilemma is to first contact counsel and ask what the court issue is about and send only what is relevant while documenting your decision to both parties. If counsel should object to this being too narrow, let counsel use the adversarial process to let a judge determine what else (if anything) she/he will require you to produce.

Medical Records about AIDS

One exception to the general rules about release of medical records involves AIDS patients. If the CSA case you are involved with contains medical information about AIDS, Georgia Code 31-22-9.1A2 states that records about an AIDS patient can NOT be released unless a spouse or child is at risk of getting infected by keeping this information confidential. Even then, you have to notify the patient first before releasing the information. This law is designed to prevent discrimination of AIDS patients by misuse of the communication of their particular problem.

Medical Records in Long-Term Treatment Facilities

Another particular exception that will occasionally be relevant to CSA cases involves Georgia Code 31-8-114(7). This law allows for peer review of patients in long-term care for such things as a Medicaid audit. That auditor has a right to obtain access to a child's (or adult's) record that may contain issues about his/her sexual abuse history and other personal data. However, the peer review information is then also privileged.

Purposely Destroying Medical Records

Some professionals have considered bypassing the maze of laws about privileged communication when receiving a subpoena or request for documents by simply purging the sensitive information out of the records. Purposely destroying parts of a medical record can result in misdemeanor charges. Instead, plan ahead how you will handle such a situation in the proper manner.

Another Person's Report in your Documents

What do you do with someone else's report or material in your medical records? What if Dr. A asks for a copy of Dr. B's assessment of their shared patient and receives Dr. B's report. Later, Dr. A's records are subpoenaed. Does Dr. A share Dr. B's report as well as his/her own findings? NO. This "second-hand" information is legally "undiscoverable". Nothing is stopping counsel from obtaining the same information directly from Dr. B. if it is relevant to the case, but it is improper to share someone else's material.

Mental Health Records Laws

Georgia Code 24-9-21, 42 US Code dd-2, and Georgia Code 37-3-166 all pertain to mental health records. Communications between a husband and wife, or a client with his/her grand jury, attorney, psychiatrist, psychologist, social worker, psychiatric nurse, marriage and family therapist, and/or counselor all involve privileged communication. Privileged communication is an obligation of the professional, not of the client. Confidentiality is the ethical obligation, but privileged communication is the legal obligation binding these professionals. Client records are simply one form of communication that is covered by the law. Unlike medical records, mental health records are undiscoverable.

One implication of the privileged status of mental health records is that the therapist is not released from obligation to maintain privilege status of the records unless the client, client's attorney, or client's guardian (if the client is a minor) offers a written release requesting that this specific communication occur.

The right to sign for treatment, and sign release forms regarding a minor client, goes to the agency with legal custody when custody has been removed from the parents. For example, when a child is in DFACS custody, it will be a representative of DFACS (usually the caseworker) who signs for treatment and communication releases--NOT the parents.

Be aware that a request for documentation will usually inform a therapist that the deadline to produce all the records is 30 days. What may NOT be present in the communication is a 10 day deadline to respond if there is a challenge by the therapist to the request. Be aware!

When in doubt, consult an attorney FIRST before sharing information about a therapy client.

The Impact of CAPTA

In 1974, federal law mandated that certain professionals who worked with children would have to report suspected cases of child abuse or neglect to the authorities. This law was amended in 1996 and is often referred to as CAPTA or the Child Abuse Prevention and Treatment Act. This federal law (PL 104-235) has a huge impact on those of us working with the issue of child abuse. There are some key features of CAPTA which impact reporting, record keeping, and communication about abused and neglected children:

Key Features

• Prior to 1974, all child abuse cases were handled through the ASPCA.

• States receiving federal funds (e.g. Medicaid) follow CAPTA rules.
• CAPTA dictates who may and may not have access to CPS records.
• CAPTA establishes a guardian ad litem who can be an attorney or a court appointed special advocate (CASA) or both.
• CAPTA establishes Citizen Review Panels.
• CAPTA sets standards for termination of parental rights.
• CAPTA mandates states to explore false reports of child abuse.

For more information about CAPTA, connect to this informative summary from the American Bar Association. (The American Bar Association website is available on the Related Links page of this website.)

Educational Records

The federal government created the Family Education Rights and Privacy Act (FERPA) in 1988 (amended in 1996). It can be found at 20 U.S.C. Section 1232g. FERPA, also referred to as the "Buckley Amendment", establishes the basic federal guidelines for educational records from preschool all the way through graduate school.

Basic features of FERPA

• Student educational records are considered confidential and may not be released without written consent.
• School faculty and staff are held responsible for the protection of educational records in their possession.
• Some information is considered public. This is not the personal information, and could also be referred to as "Directory Information".
• The basic right to access student information within an educational institution is generally on a "need to know" basis. When in doubt, contact the office in charge of records and ask.
• As with medical and mental health records, parental guardians have the right to have access to their minor child's educational records. Parents of adult students have no such rights.
• With minor students, parental releases are required to communicate about restricted educational records to persons/agencies outside the school.
• One parent cannot withhold educational record information from the other parent.
• Educational records generally contain almost anything maintained as information on the student in the school. Certainly, this would include such things as psychological evaluations or other sensitive reports.

An educational record is:

• Information directly related to the student
• Managed by an educational agency or person acting for the agency

Counselors, school social workers, and/or school psychologist need to be careful about documentation and sharing of information.

For more details about FERPA and other educational laws go to the EDLAW, LLC and The EDLAW Center web site. (The EDLAW, LLC, and the EDLAW Center website is available on the Related Links page of this website.)

Mandated Reporters in a School Setting

The majority of mandated reports concerning child sexual abuse come from the school setting. In addition to laws pertaining to records, an educator should the following:

• The obligation to report child abuse or neglect is not based on having "proof", but on having a "reasonable cause to suspect".
• Remember that a well-informed professional may sometimes have a "reasonable suspicion" even before the child makes a specific disclosure.
• The school may have a policy of reporting to some other contact person who calls DFACS or law enforcement.
• The failure of a mandated reporter to report suspected abuse or neglect is a misdemeanor with penalties of up to 12 months in jail and/or $1,000 fine.
• The proper report is made first to DFACS which will contact law enforcement and the DA's office.
• DFACS records of investigations are also bound by confidentiality through Georgia Code 49-5-41.
• Limited feedback can be provided from DFACS to the reporter including:
  • If allegations were substantiated or not
  • Who the current caseworker is
  • Whether or not the child was placed in DFACS legal care.

Resources

Barclay, M. (2000). Social service records. In Children's records law in Georgia:A conference presented on 2/29/00, Atlanta, GA.

Branton, J. (2000) Medical and mental health records. In Children's records law in Georgia: A conference presented on 2/29/00, Atlanta, GA.

Connaway, S. (1994). Teacher's Kit on Child Sexual Abuse Prevention and Identification. National Child Advocacy Center, Huntsville, AL

Connaway, S. (1996). ABCs for teachers who suspect child abuse. NRCCSA News, 5(4), 4-5.

Davidson, H. Summary of some key changes to the federal Child Abuse Prevention and Treatment Act (CAPTA) enacted through the Child Abuse Prevention and Treatment Act Amendments of 1996. American Bar Association Center on Children and the Law, Washington, DC.

Illinois State Bar Association's Standing Committee on Juvenile Justice (1992). A teacher saved my life. [Teaching manual for teacher in-service training]. Chicago, IL.

Information Technology Policy Council, Georgia Code Unannotated
PO Box 38391
47 Trinity Ave.
Atlanta, GA 30334

Kalichman, S. (1999). Mandated reporting of suspected child abuse. American Psychological Association: Washington, DC.

National Clearinghouse on Child Abuse and Neglect Information & National Center for Prosecution of Child Abuse; (1995). Child Abuse and Neglect State Statute Series, Washington, DC

Paxton, C. (1991). A bridge to healing: Responding to disclosures of childhood sexual abuse. Health Values, 15(5), 49-56.

Rosenfeld, J., Gelfman, M., & Bluth, L. (2000). EDLAW, Inc., P.O. Box 81-7327, Hollywood, FL.

Solomon-Gaines, M. & Newman, M. (1999). Building relationships with our mandated reporters. Presented at the Georgia County Welfare Association Annual Conference, Jekyll Island, GA.

Woods, D. (2000). Education records. Huff, Woods and Hamby, 707 Whitlock Avenue, G-5, Marietta, GA.