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NY Extension to Mandatory Reporting in Schools

Alterations to New York’s mandatory reporting laws for abuse in an educational setting have significantly expanded the schools that are required to follow the rules, the individuals required to report suspected abuse, and the training requirements for such individuals. The changes were enacted after an amendment to Education Law Article 23-B was passed in December of 2018 but just recently went into effect on June 5, 2019.

What Does Mandatory Reporting Cover?

a. Abuse in an Educational Setting

Mandatory reporting under the Education Law creates a requirement that certain school employees and personnel, as well as other individuals who work directly with children, report any oral or written allegations of child abuse allegedly committed by an employee or volunteer in an educational setting.1 The definition of “child abuse” remains consistent and includes the following acts committed against a child: intentional or reckless infliction of physical injury, substantial risk of physical injury, sexual abuse, or dissemination of or attempted dissemination of indecent materials to minors in an educational setting by an employee or volunteer.2

b. Abuse Outside an Educational Setting

Mandatory reporting under the Social Services Law requires a variety of individuals, including certain school employees and personnel, to report suspected child abuse or maltreatment, regardless of who the abuser is, when they have reasonable cause to believe that a child they encounter in their professional or official capacity is abused or mistreated.3 This mandatory reporting extends to child abuse or mistreatment suspicions that arise from interactions with the parents or caretakers of children in the reporter’s official or professional capacity.4

Modifications to Definitions in Article 23-B of the Education Law

a. Schools

The amendments to Article 23-B include a broadening of the definition of “school” which now includes schools in New York City and private schools, among others,5 increasing the number of schools required to follow the mandatory reporting laws.6 Prior to the change, mandated reporting under Education Law Article 23-B only applied to public schools outside of New York City.7

b. Employees and Volunteers

The recent amendment also expanded the definition of the term “employee” to include not just individuals receiving compensation from a school, but also any individual who has direct contact with students as a result of a transportation services contract.8 The definition of “volunteer” was also widened to include any individual, other than an employee, who has direct contact with students and who provides services to any person or entity that contracts with a school to provide transportation services.9 Previously, both “employee” and “volunteer” failed to include any bus drivers, bus monitors, and attendants who work for private contractors.10

c. Educational Settings

The definition of “educational setting”, which includes the building and grounds of a school, has been extended to include any transportation vehicles (such as buses) provided to the school by private contractors.11 Previously the definition only included those vehicles provided directly by the school.12

d. Mandated Reporters

Individuals who are classified as mandated reporters within the education setting has also expanded to now include licensed and registered physical or occupational therapists, speech-language pathologists, teacher aides, and school resource officers.13 These additions supplement those positions that were already previously required to report including licensed mental health counselors, teachers, school nurses, school guidance counselors, school psychologists, school social workers, school administrators, school board members, other school personnel required to hold a teaching or administrative license or certificate, full or part-time compensated school employees required to hold a temporary coaching license or professional coaching certificate, and any other “school official.”14 School bus drivers working for outside companies who contract for transportation services with schools have also been added as mandated reporters.15

Reporter and School Responsibilities

a. Reporting Requirements

The reporting requirements for mandated reporters, other than bus drivers, remains unchanged under the Education Law and requires mandated reporters to (1) promptly file a written report of the allegations containing the child’s name, the name of the alleged abuser, and the name of the individual who made the allegations among other things; and (2) deliver such a report to the administrator of the school in which the alleged abuse occurred.16

Additional reporting requirements for mandated reporters exist and remain unchanged under Social Services Law and requires them to immediately make a report either (1) verbally by telephone, or (2) by fax on a form supplied by the commissioner of the office of children and family services.17 When reporting is done verbally, it must be reported to the statewide central register of child abuse and maltreatment, unless local plan dictates it be made to the local child protective services.18 When a written report is the initial method of reporting, it must be submitted to the local child protective services unless the child is being cared for in a home operated or supervised by a government agency, in which case it is to be submitted to the statewide central register of child abuse and maltreatment.19 Any report initially filed verbally must be followed by a written report stating the same within forty-eight hours of the initial reporting.20

School bus drivers employed by private contractors have slightly different reporting requirements and are instead required to report the alleged abuse to the direct supervisor of the company they drive for.21 Any supervisor employed by a group or entity that contracts with a school to provide transportation services is in turn required to report any such allegations of abuse to the district superintendent for public schools, or the appropriate school administrator for non-public schools.22

Schools are also now required to designate an alternate administrator to whom allegations of abuse should be made if the allegations are against the superintendent or administrator with whom reports are ordinarily filed.23

b. Training Requirements

The training requirements have changed under Education Law even for those who have previously received training. Before these changes, training under Education Law § 1132 required only that the commissioner create and distribute rules and regulations regarding required training but did not list any specific material to be addressed during training.24 The New York State Education Department Regulations required that training include the duties of mandated reporters, the confidentiality of records, the duties of school administrators, and the penalties for failure to comply.25

Changes to Education Law § 1132(2) now mandate training for all employees defined in § 1126 and requires the training cover, at minimum, information regarding the physical and behavioral indicators of child abuse and maltreatment, as well as the statutory reporting requirements, including but not limited to when and how reports must be made, what other actions are mandated, legal protections granted to mandated reporters, and consequences for failing to report.26 As of the date of this memo, the commissioner has not yet released final regulations addressing these new requirements.

Additionally, all teachers and administrators, or those in equivalent positions, employed at schools other than school district or public schools on or after July 2019, and all school bus drivers employed by private contractors, are required to undergo two hours of specified training regarding child abuse indicators and mandatory reporting.27 This two hour training must be obtained from a department-approved institution or provider and has the same minimum content requirements as those noted above for Education Law § 1132(2).28 Employees participating in this mandatory two hour training are further required to provide the school administrator documentation evidencing completion. School bus drivers employed by private contractors are required to provide such documentation to their employer.29

These training and coursework requirements do not apply to those teachers and superintendents already required to undergo similar training under Education Law §§ 3003 and 3004.30

Under Social Services Law, schools continue to be required to supply all current and new employees who are mandated reporters with written information explaining the reporting requirements.31

Bottom Line

All schools located within New York, whether public or private, are now required under Education Law Article 23-B and Social Services Law to follow mandatory reporter rules. These rules have expanded to include more specific training requirements and now include contract bus drivers, licensed and registered physical or occupational therapists, speech-language pathologists, teacher aides and school resource officers. School administrators and superintendents should keep a close eye on training and reporting requirements, ensure applicable school policies are updated, and contact legal counsel if there is any uncertainty as to what changes and training requirements need to be implemented.

1 Education Law § 1126(1), (1)(a).

2 Education Law § 1125(1).

3 Social Services Law § 413.

4 Id.

5 Education Law § 1125(10). [Note: The definition of school has expanded to include “school district, public school, charter school, nonpublic school, board of cooperative educational services, special act school district . . . approved preschool special education program . . . approved private residential or non-residential school for the education of students with disabilities”].

6 Education Law § 1125(10).

7 2018 McKinney’s Session Law News of NY, Ch. 363 at § 1125(10) [Dec. 2018].

8 Education Law § 1125(3).

9 Education Law § 1125(4).

10 Kimberly A. Fanniff & N.Y.S. Sch. Bds. Assn., Legal Update: A Recap of Selected New Laws and Regulations at 13 [2018].

11 Education Law § 1125(5).

12 2018 McKinney’s, supra note 4, at § 1125(5).

13 Education Law § 1126(1-a (i)).

14 2018 McKinney’s, supra note 4, at § 1126(1); Social Services Law § 413. [Note: The above list is a compilation of mandated reporters from both Social Services Law and Education Law].

15 Education Law § 1126(1-a). It appears the law inadvertently left out school bus drivers employed by the school itself. As of the date of this memo, a bill amending the law to correct this error by adding school-employed bus drivers to the list of mandatory reporters has passed both the assembly and the senate and is awaiting the governor’s signature. NYS Assembly Bill 5842.

16 Education Law § 1126(1), (1)(a), (1)(b).

17 Social Services Law § 415.

18 Id.

19 Id.

20 Id.

21 Education Law § 1126(1-a (i)).

22 Education Law § 1126(1-a (ii)).

23 Education Law § 1126(4).

24 2018 McKinney’s, supra note 4, at § 1132(2).

25 8 NYCRR 100.2.

26 Education Law § 1132(2).

27 Education Law § 1132(3).

28 Id.

29 Id.

30 Education Law § 1132(4). [Note: Sections 3003 and 3004 of the Education Law require that anyone applying for a superintendent’s certificate or a teaching certificate or license after January 1, 1991 must complete two hours of coursework or training regarding the identification and reporting of child abuse and maltreatment.]

31 Social Services Law § 413(2).