When Must You Report Suspected Child Abuse?

MARC COHEN | SARAH C.J. NADIVnadiv-1-cropped(1)Cohen_Marc_headshot-3-2

Do you understand your reporting duties when you suspect that child abuse has occurred? This article provides a simplified overview of the reporting requirements for physicians and other health practitioners.

The Health Insurance Portability and Accountability Act (HIPAA), Maryland’s Medical Records Confidentiality Act, and professional ethics all require that healthcare practitioners keep medical information, including psychological information, about a patient confidential.

However, these laws have exceptions. HIPAA, while perhaps this nation’s most comprehensive effort to ensure confidentiality of protected health information (PHI), excuses providers from its confidentiality requirements when the provider is otherwise “required by law” to make a report. In addition, HIPAA expressly states that a healthcare provider may disclose PHI in order to comply with any state law requiring the reporting of child abuse (See 45 CFR 164.512).

Maryland’s Confidentiality of Medical Records Act, a predecessor and close analog to HIPAA, similarly protects a patient’s medical information from disclosure but does not limit child abuse reporting requirements.

Family Law Article

Maryland’s Family Law Article, Title 5, Subtitle 7, directs any healthcare practitioner to report child abuse to the local Social Services Administration or the appropriate law enforcement agency. The healthcare practitioner must make an oral report to the local department or law enforcement agency as soon as they have “reason to believe” abuse has occurred.

Additionally, the practitioner has 48 hours to file a written report with the local department of social services and provide a copy to the local state’s attorney. These forms are available on the Maryland Department of Human Resources website: dhr.state.md.us

Healthcare practitioners, police officers, educators and human service workers are required to report suspected child abuse or neglect even if the event occurred in the past, and even if the alleged victim is an adult when the incident comes to light. Reporting is required even if the suspected abuser is believed to be deceased.

Beware the Definition of Abuse and Neglect

However, beware of a potential pitfall in the definition of abuse found in section 5-704 of the Family Law Article. For reporting purposes, it defines abuse, including sexual abuse, as that which is caused by “any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member…”

As a result, whether the abuse is a physical or mental injury or sexual abuse, to be subject to reporting it must be perpetrated by a parent or other person who fits the above description.

Child neglect has the same reporting limitations as described above for abuse. Providers should only break confidentiality and report the incident if the act was perpetrated by a parent, guardian, custodian, person who has permanent or temporary care or custody, or a household or family member.

State law does not require the victim’s permission to file a report. However, any disclosure other than as authorized under Maryland Family Law Section 5-704 requires the express agreement of the patient.

These requirements apply even if the suspected abuse or neglect is alleged to have occurred outside Maryland or if the victim lives outside of the state. In these circumstances, the abuse or neglect needs to be reported to any local department, which must forward the report to the appropriate agency outside this state.

When in doubt, without identifying the patient, it may be wise to contact the local Maryland Department of Social Services to discuss the incident and obtain guidance.

The Bottom Line

Regardless of state and federal confidentiality laws, physicians must report all physical or mental injury or sexual abuse when the act has been perpetrated by a parent or other person who has custody or responsibility for the child or lives in the same house as the child.

Marc Cohen is a principal in Ober|Kaler’s Health Law Group. Mr. Cohen’s practice focuses on regulatory compliance and professional discipline. He may be reached at mkcohen@ober.com.

Sarah C.J. Nadiv, LCPC, is the early childhood research supervisor, Institute for Innovation and Implementation, University of Maryland, Baltimore. She may be reached at snadiv@ssw.umaryland.edu. For local Maryland Departments of Social Services, visit msa.maryland.gov/.

This article is only intended as a review of basic facts and law. Its purpose is to help spot issues for discussion and further inquiry and is not a substitute for obtaining advice from your legal counsel or the government officials responsible for administering these laws.
The reader is advised that laws, regulations and especially published policies of state and federal agencies are constantly subject to amendment and changes in interpretation. Finally, reliance on this article in setting practice protocols or as a defense to government action is further limited in that audit and enforcement actions are always, to some degree, subject to the discretion of government officials.

 


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