An Overview of Mandatory Abuse Reporting in Virginia

An Overview of Mandatory Abuse Reporting in Virginia Bruce D. Gehle, JD COO, Piedmont Liability Trust February 7, 2019

Disclosure & Disclaimer • I have no relevant financial relationships with commercial interests related to this talk. • This talk is intended to be educational guidance and is not legal advice. For specific situations you should consult your legal or risk management professional for advice.

Outline • Introduction • Virginia law as to Who, What, When and How to report abuse and neglect. • Factors to consider when evaluating whether a patient has been abused. • Miscellaneous issues • Discussion

Background • Physicians were the first “mandated reporters” for child abuse going back to 1966. • Laws broadened in the 1970 s to include other professionals who interact with children. • By 1974 all 50 states had enacted reporting laws, but they vary some from state to state. • Virginia DSS reports: • • • 56% of reports are made by professionals Education personnel 16% Law Enforcement 15% Social Services 14% Medical Personnel 8%

1. Who has to report? “Mandatory” Reporters • Any person licensed, certified, or registered by health regulatory boards listed in 54. 1 -2503 of the Code of Virginia, except persons licensed by the Board of Veterinary Medicine. • Mandated reporters are required to report situations they encounter while performing their official job duties, i. e. , in their “professional capacity. ”

2. What do they have to report? “Reasonable suspicion” of abuse or neglect of 1. Children • Anyone under the age of 18 2. Adults: • Persons age 60 and older • Persons 18 years old or older who are incapacitated • What is an Incapacitated Person? • An adult who is impaired by ◦ Mental illness ◦ Intellectual disability ◦ Physical illness or disability ◦ Advanced age ◦ Other causes • An adult who lacks sufficient understanding or capacity to make, communicate or carry our reasonable decisions regarding his/her well-being

What Is Abuse and Neglect? (Children) • Causes or threatens to cause a nonaccidental physical or mental injury; • Has a child present during the manufacture or attempted manufacture of a controlled substance or during the unlawful sale of such substance where such activity would constitute a felony violation; • Neglects or refuses to provide adequate food, clothing, shelter, emotional nurturing, or health care; • Abandons the child; • Neglects or refuses to provide adequate supervision in relation to a child’s age and level of development; • Knowingly leaves a child alone in the same dwelling with a person, not related by blood or marriage, who has been convicted of an offense against a minor for which registration is required as a violent sexual offender; or • Commits or allows to be committed any illegal sexual act upon a child, including incest, rape, indecent exposure, prostitution, or allows a child to be used in any sexually explicit visual material. • Newborn infants who have been medically diagnosed for exposure to nonprescription, controlled substances during pregnancy are also considered to be at risk of abuse or neglect.

What Is Abuse and Neglect? Adults • Willful infliction of physical pain, injury or mental anguish or unreasonable confinement.

What are Abused Child Behavioral Indicators? • Uncomfortable with physical contact; • Wary of adult contacts; • Apprehensive when other children cry; • Exhibits behavioral extremes; • Aggressiveness or withdrawal; • Frightened of parents; • Afraid to go home; • Reports being injured by parents or other caretaker; • Complains of soreness or moves uncomfortably; • Wears clothing inappropriate for the weather to cover injuries; • Reluctant to change clothes (attempts to hide injuries, bruises, etc. ); or • May be a chronic runaway.

What are Abusive Caretaker Characteristics? • Has a history of being abused as a child; • Uses harsh discipline inappropriate to child’s age, the misbehavior, and the condition in which the misbehavior occurred; • Offers illogical, unconvincing, contradictory, or no explanation of child’s injury; • Significantly misperceives child (e. g. sees him as bad, stupid, different, etc. ); • Has a serious mental health condition or exhibits a psychotic or psychopathic personality; • Fails to keep child’s medical appointments; • Misuses alcohol or other drugs; • Attempts to conceal child’s injury or to protect identity of person responsible; • Has unrealistic expectations of child that are beyond child’s age or ability; • Allows a child to be present during the manufacture or sale of controlled substances; • Demonstrates insufficient parenting skills; • Demonstrates poor coping skills; • Has anger management difficulties; or • Has a history of domestic violence, as victim or perpetrator.

What are Indicators of Abuse or Abusive Situation? -Adults • Wounds, scratches, bruises, burns • Verbal assaults, threats, intimidation • Broken bones, sprains, dislocations • Shoving, beating, kicking adult • Restrained, tied to bed or chair, locked in • Behavioral changes in the adult

What is an “Abuser” Under the Law? • Children: Parent or “caretaker” of the child • Adults: • • • Families Members Paid Caregivers Friends Facility Staff Members Agency Staff Members Handy Men/Contractors

Other Types of Abuse Sexual Abuse An act committed with the intent to sexually molest, arouse or gratify any person. Neglect Living under such circumstances that the child/adult is not able to provide, or is not provided, services to maintain physical and mental health and well-being Exploitation Illegal use of the adult’s resources for another’s profit or advantage

What is Exploitation? (Adults) • Illegal use of the adult’s resources for another’s profit or advantage: • • Missing personal belongings Changed will or POA Large bank withdrawals Unpaid bills Excessive payment for care or services Documents contain suspicious signatures Sudden appearance of previously uninvolved relatives or friends

3. When do you have to report? • Children: “As soon as possible” but “not longer than 24 hours after having reason to suspect a reportable offense. ” • Va. Code 63. 2 -1509 D • Adults: “immediately” but within no specific time period • Va. Code 63. 2 -1606

4. How Do You Report? • DSS in City/County where victim resides • DSS in City/County where abuse occurred • Children: CPS Hotline: 1 -800 -552 -7096 • Adults: The Adult Protective Services Unit of the Local Department of Social Services where the adult resides or in which the abuse, neglect or exploitation occurred, or the 24 -hour Adult Abuse Hotline 1 (888) 83 -ADULT (832 -3858)

How? (Institutions) UVA MEDICAL CENTER POLICY NO. 0213: Medical Center Social Workers have the primary responsibility among Medical Center staff for reporting suspected abuse or neglect of adults and children. “The Medical Center utilizes the social worker as the lead professional when there is a cause to suspect abuse, neglect or exploitation. All cases of suspected adult or child abuse, neglect or exploitation are promptly referred to the assigned area social worker, University of Virginia Child Protection Services Coordinator, University of Virginia Adult Protection Services Coordinator, or the Social Work Director. ”

Common Questions and Concerns

Privacy Issues? • General Rule: Health Insurance Portability and Accountability Act (HIPAA) requires patient authorization before you can share patient information. Exception for Child/Adult Abuse: • HIPAA allows health care providers to release medical records of individuals who are, or are suspected of being, victims of abuse, neglect or exploitation in states that have laws that require the release of such information. • Virginia law requires, and HIPAA allows, mandated reporters to share information relevant to an APS/CPS investigation.

Law Enforcement • You can talk to APS/CPS without an authorization, but rules are different for police and lawyers. • Police, prosecutors, other lawyers all need an authorization/warrant/court order unless you believe you need to disclose PHI in order to Prevent or lessen a serious and imminent threat to the health or safety of an individual or the public (45 CFR 164. 512(j)(1)(i)) *For Law Enforcement exceptions to HIPAA’s authorization requirements, HHS has an FAQ page: https: //www. hhs. gov/hipaa/for-professionals/faq/505/what-does-the-privacy-rule-allow-covered-entities-todisclose-to-law-enforcement-officials/index. html

Protections for Reporters • Immunity from administrative, civil and criminal liability • As long as done in “good faith” • Protection of identity • Permitted to release confidential information to CPS/APS without penalty or authorization **Remember to document that you’ve reported.

Consequences for Failure to Report • First failure is punishable by a civil penalty of not more than $500 • Subsequent failures may result in penalties between $100 and $1, 000 • Can I be sued for malpractice for failure to report? • Theoretically possible: Landers v. Flood , 17 Cal. 3 d 399 (1976) • Very difficult cases for plaintiffs to win; need to prove reporting was required, and if it had occurred, then the state would have acted in such a way to prevent the bad outcome.

Domestic Abuse or Threats of Violence No mandatory reporter obligation for domestic abuse to anyone over 18 who is not incapacitated. • EXCEPTION: Va. Code 54. 1 -2967 requires physicians, or any other person rendering medical aid or treatment, to report to the sheriff or chief of police where the treatment is rendered, treatment of any wounds which the physician knows, or has reason to believe, which were caused by a weapon specified in § 18. 2 -308 and which they believe or have reason to believe was not self-inflicted. • Otherwise, can only report PHI to law enforcement to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public (45 CFR 164. 512(j)(1)(i))

Other issues… • Corporal punishment is not abuse (unless excessive) • No statewide age minimum to be left home alone • Past abuse must be reported if occurred before age 18, even if the reporter learns of it after the person has turned 18 • Do not have to report if “actual knowledge” that the abuse has already been reported

Not Handled by CPS • Educational neglect (which is handled by the school system); • Failure to provide immunizations and/or preventative health care; • Failure to use safety belt restraints in motor vehicles(handled by law enforcement as a motor vehicle violation); • Non-caretaker sexual abuse (handled by law enforcement); • Abuse that did not occur in Virginia and the abuser does not live in Virginia (these cases are handled by the state in which the abuse occurred); • Poverty

Questions? Bruce D. Gehle (434) 296 -2100 bdg 5 qr@virginia. edu