What happens when the school receives a report from a parent that the bus driver slapped the face of a nine-year old student with a disability? Some of you may recall the headlines from earlier this year involving such a case. In Matter of Ansley v. Jamesville-DeWitt CSD, the Appellate Division of state Supreme Court considered the power of a school district to take action pursuant to Article 23-b of the Education Law. Enacted in 2001 as part of the Project SAVE legislation, Article 23-b makes it mandatory for school employees and school board members to report child abuse in an educational setting. School officials should be familiar with Article 23-b and expanded protections for children under a recent revision of this law.

A report made in accordance with Article 23-b must be in writing and made to the building administrator in the building where the abuse occurred. The building administrator must then conduct an investigation and make a determination as to whether there is reasonable suspicion that child abuse did occur and, if so, must contact the parents and the authorities.

For purposes of Article 23-b, “child abuse” is defined as acts committed in school or at a school function by an employee or volunteer against a child which inflict personal injury, create a substantial risk of injury, constitute child sex abuse, or involve disseminating indecent materials to minors. The term “school employee” means anyone who is receiving compensation from a school, or whose duties involve direct student contact who is a contractor or employee of a contractor with the school.

Recent legislative changes define “student” as anyone under 21 years of age attending a school. Students in nonpublic schools, BOCES, state-funded schools, and charter schools are now covered. (Special Act schools are not covered by this article because they have their own protections found in Article 11 of the Social Services Law.)

The revised Article 23-b mandates reporting of child abuse when it occurs in a school where the student does not attend. For example, if a visiting athletic director observes the home team coach slap a home team player, the visiting athletic director has an obligation to make a report of child abuse to the building administrator where the child abuse occurred. Similarly, if a home team coach observes a visiting coach slap a visiting player, the home team coach has an obligation to make a report of child abuse to the building administrator where the abuse occurred.

Also, the list of mandated reporters has grown. Effective June 5, 2019, mandated reporters under Article 23-b include any teacher, school nurse, guidance counselor, school psychologist, school social worker, administrator, school board member or other certificated or licensed personnel including physical therapist, occupational therapist, speech language pathologist, teacher aide or school resource officer and bus drivers employed by transportation contractors.

Mandated reporters are legally required to make reports even in situations where the student or parent does not want the incident reported. In fact, a failure to report could be considered child abuse in and of itself. For example, suppose a coach becomes aware of severe hazing of younger students by older students. If the coach permits the conduct to continue, the principal or superintendent would be obligated upon learning this to file a Part 83 complaint with the commissioner of education to trigger an investigation of child abuse in an educational setting.

Mandated reporters have immunity from liability for reporting child abuse in an educational setting as long as they reported it in good faith. Reporting forms can be found at http://www. p12.nysed.gov/sss/ssae/schoolsafety/save/#childabuse.

A school employee or board member who receives a verbal report of alleged abuse but did not witness it must file a written report with the administrator of the building where the abuse is alleged to have occurred, or the superintendent.

The building administrator must promptly provide a copy of the report to the superintendent. Then the administrator or the superintendent must conduct a preliminary investigation to determine whether there is reasonable suspicion that the alleged child abuse occurred. The first step is to gather all staff members who interact with the child and ask for any relevant information or observations in light of the allegation.

If the preliminary investigation results in a reasonable suspicion to believe that child abuse occurred, the child’s parent must be notified of the report and given a copy of the statement of parental rights, and law enforcement should be promptly contacted. If the school employee suspected of abuse is certificated or licensed, the superintendent also has a legal obligation to forward the report to the commissioner of education pursuant to Part 83 of the Commissioner’s Regulations.

Two common mistakes should be avoided:

• After alerting police, don’t complicate matters by conducting any further school inquiry or investigation. School administrators should contact the school attorney for assistance in understanding the school’s role in coordination with police investigations.
  
  
• File the paperwork. It is easy for school administrators to be caught up in personnel issues and overlook the paperwork requirements of Article 23-b. The failure to file a report of abuse is a class A misdemeanor. The willful failure of a school administrator or superintendent to submit a written report of child abuse in the educational setting to appropriate law enforcement is also a class A misdemeanor. Education Law 1129 also provides for civil penalties not to exceed $5,000.

Once law enforcement has the district’s report, it is the responsibility of the county district attorney to notify the school where the student attends and the school where the abuse occurred, if different, when the employee or volunteer has been indicted or otherwise charged. Further, once the criminal case has concluded either through a trial or a plea, the D.A. must notify the school and the commissioner of education of the disposition of the charges. The commissioner must make a determination “whether the individual possesses good moral character” and what penalties, if any, need to be assessed against the individual’s license or certificate.

Prior to 2001, school districts may have sought to resolve a report of child abuse by telling the employee that the superintendent will not report the abuse if the employee resigns immediately. This is known as a silent resignation and is expressly prohibited by Article 23-b. An administrator who accepts a silent resignation will be subject to a class E felony and up to $20,000 in civil penalties.

In addition to the reporting responsibilities, there are record-keeping responsibilities. Records relating to the report of child abuse in the educational setting must be kept confidential and only disclosed to law enforcement personnel or in situations where the law requires release of the information.

How long should records be kept? Two laws should be considered – Article 23-b and the Child Victim’s Act. The former requires reports of child abuse, both founded and unfounded, to be kept in a confidential file for five years. All reports that do not result in a criminal conviction must be expunged after five years. The fact that the statute requires expungement may compromise a district’s ability to mount a defense if it issued under the Child Victims Act, which has the statute of limitations for victims of child sexual abuse for one year and, going forward, permits victims to sue until the age of 55.

One of the other recent changes to Article 23-b is an enhanced training requirement. Education Law section1132 now requires all personnel of schools, BOCES, nonpublic schools, charter schools or other schools to receive annual training in identifying and reporting child abuse in the educational setting. School board members should be included in the training as they now have reporting requirements. Districts should maintain records of training as well as the reports of abuse because proof of training could assist in the defense of a Child Victims Act claim.

One final area of possible mistake involves training. An employee may be absent on the day the training is given. The district should have a system in place for ensuring such an employee does not “fall through the cracks.” All employees must complete the training annually.

The rules contained within Article 23-b are complicated but they are designed to help schools keep children safe. Questions about Article 23-b and its procedures should be directed to the school attorney. If the bus driver’s actions in the Ansley case discussed in the first paragraph had been reported as child abuse in the educational setting, litigation may have been avoided.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Wendy K. DeWind of Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP. DeWind