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As someone with twenty years of experience in public education and working with high school students fifteen of those years, I understand their daily dilemmas well. I am entering into the field of high school counseling where I will be directly engaging with teenagers on a daily basis about their academic, social, and emotional needs. I have noticed that teenagers are sometimes afraid to talk about abuse and neglect. Abuse can occur at home but it can also happen within the school and/or with school staff. Just in 2022 alone, the Texas Department of Family and Protective Services (DFPS), received 317,928 reports and 37,081 of those were investigated, many of those being reported by school employees (Reports for Child Abuse, Neglect Exceed Pre-Pandemic Levels, 2023). If I, as a school counselor, become aware of potential child abuse or neglect in or out of school, I am mandated by law to report it.

The laws and ethical codes are very specific about how to handle mandatory reporting, but sometimes school counselors still find themselves unintentionally violating the laws and ethics of the position. Sometimes it is just personal ethical missteps, but other times it is because they are unclear or not informed about the policies and procedures. Mandatory reporting is a serious topic that should not be taken lightly or misunderstood and can have serious repercussions for everyone involved if not handled properly. Because of this, I felt it is a very relevant topic to delve into in order for school counselors to be fully prepared for this position.

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The legal agencies governing mandatory reporting for school counselors are:

The U.S. Department of Education (2022) passes education policies through legislation and holds states responsible for following the law. State education departments implement these federal policies that school districts and their employees must abide by. The overarching goal of the department is to provide a safe and secure environment for students and to succeed academically and protect their wellbeing, which includes mandatory reporting in the event of child abuse and neglect.

The Texas Education Agency (2019) is a state agency that establishes education policies based on the national education policies and rules for Texas school districts. It hold the school districts accountable for the implementation of the guidelines and procedures to ensure the safety of the students. As part of this, school counselors are held responsible for upholding the laws as well.

And the Texas Department of Family & Protective Services (2004) safeguards the welfare of Texas families. It oversees child and adult protective services, adoption, and also foster care. It plays a crucial role in the reporting of child abuse and neglect cases. It also upholds the mandatory reporting of abuse and neglect by anyone who suspects one or both, including school counselors (HHSC, 2023). School counselors tend to work closely with the Texas DFPS, especially for students in foster care.

In general, federal and state agencies help build and implement public policies. Accountability in the form of checks and balances between the legislative, executive, and judicial branches ensures transparency and upholds democracy. This helps maintain trust with the people who are governed by the laws so, in turn, they will want to abide by them.

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Slide 3: Federal and State Constitutional Laws 

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Slide 3: Federal and State Constitutional Laws 

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For mandatory reporting, some federal and state laws are:

First, under the federal law, The Victims of Child Abuse Act (1990; 42 U.S.C. §§ 13031 et seq. & 18 U.S.C. § 2258):

Professionals and counselors who suspect abuse on federal land or facilities (schools), must report it.

Some of those considered professionals in their field are mental health employees and educators, including school counselors.

This federal law outlines the specifics of what constitutes child abuse and neglect.

The law also mentions a standard form for reporting, immunity for good faith reporters, and related periodic training for the professionals.

The failure to report could result in a Class B misdemeanor.

Another federal law, 34 U.S.C. § 20341, also covers the following:

There will be constant improvement on child abuse investigations and the prosecution of abuse.

A special advocate program that is court-appointed should be implemented.

There will be child abuse training for juvenile and family court personnel.

Federal immunity will be provided to those reporting child abuse.

Background checks are required for child care worker employees.

The Texas Family Code, Chapter 261, Subchapter B, Sections 261.101-261.110 (2019), mandates anyone that suspects child abuse or neglect must report it as soon as possible, including school counselors. It also states that:

The professional cannot delegate the reporting to another professional.

The professional must report it within 48 hours of acquiring the knowledge.

The identity of the professional will be kept confidential except to law enforcement working on the reported case.

Also, the Texas Penal Code Section 38.17 (2007), which addresses Failure to Stop or Report Aggravated Sexual Assault of a Child, states:

A witness to an offense should attempt to assist the child.

If the witness is unable to personally assist the child, they should contact a peace officer or law enforcement agency for help.

The witness is obligated to do one or both of the above as long as it would not result in serious bodily injury or death.

Failure to follow this penal code could result in a Class A misdemeanor.

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For mandatory reporting, one statute and one administrative law are:

The Texas Penal Code Chapter 20A.02(a)(5) or (7), Trafficking of Persons (2023) states:

It is considered a form of child abuse for children under the age of 18 to be trafficked.

A person commits an offense if they knowingly traffic or prostitute another person.

A person commits an offense if they benefit from the trafficking or prostitution of another person.

It is still an offense regardless if the offender knows the age of the victim or not.

If the offense occurs on school premises or within 1,000 feet of a school, it is a felony of the first degree.

The Texas Administrative Code §133.47 (2023) states:

Incidents of child abuse, neglect, exploitation, or other related unethical or unprofessional conduct should be reported to the Department of State Health Services.

This law defines in detail what constitutes abuse, neglect, and other related conduct.

This TAC also discusses the details of reporting, training, investigations, submissions, failure to report, and more.

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Here are a couple of examples of court cases involving mandatory reporting:

One case that proved failed mandatory reporting was A.B. v. Rhinebeck Central School District and Thomas Mawhinney (2004) in the New York Law Journal. Here is a summary:

The school district did not report known sexual harassment of multiple students and a faculty member by the principal, Mr. Mawhinney.

The court ruled in favor of the students and the court deemed a consent decree was necessary.

The consent decree required the district to implement several changes including a comprehensive plan, sexual harassment training, policies review, and school climate assessment.

The school district also had to pay the student’s attorney fees of $152,500.

This case shows the importance of mandatory reporting even at the district level and against its own employees (Mellon, 2013).

In the case, Porter v. State (2003):

Deanna Porter, the operator of New Children's Learning Center, was convicted of failing to report on the neglect of a child in her care.

Three-year-old Nadina Hinojosa was left in a van during an outing at a park with children from the daycare for about an hour and a half. She apparently had fallen asleep in a backseat and was crying and seemed dehydrated when discovered upon return.

Due a lack of proper headcount, the girl was missed when exiting the vehicle. The child was taken care of back at the facility with seemingly no long-term effects.

When the mother found out about the incident, she still reported it to the Department of Protective and Regulatory Services.

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Two examples of federal regulations are:

The Child Abuse Prevention and Treatment Act (2018) influences state laws for mandatory reporting in education. More details include:

CAPTA provides federal funding, support, and guidelines to help prevent child abuse and neglect.

It mandates each state develop a plan for treatment and prevention of child abuse and neglect.

CAPTA promotes research and data collection as well as provides training and grants.

The Family Educational Rights and Privacy Act (2021) which governs the privacy of student information and also includes:

General protection of privacy of information, also covering child abuse or neglect incidents.

FERPA allows the release of information regarding child abuse or neglect if required by state law, but there should be an attempt made to notify the parents when this happens.

Schools that receive federal funding must comply with FERPA regulations or the U.S. Department of Education can withhold funding.

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(Fort Worth Independent School District logo, 2023)

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Slide 7: Local Administrative Law/Policy/Rule

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Slide 7: Local Administrative Law/Policy/Rule

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One example of a local administrative policy is the Fort Worth ISD board policy for mandatory reporting of child abuse and neglect. It mainly follows the Texas Family Code, Chapter 261, Subchapter B, Sections 261.101-261.110 (2019) which dictates mandatory reporting laws for school counselors and educators in Texas. The Fort Worth ISD board policy states:

Any professional must report suspected abuse or neglect within 48 hours.

A professional is defined as a licensed or certified employee by the state, which would include school counselors.

Professionals must not rely on other professionals to do the reporting (Policy Code FFG - Student Welfare: Child Abuse and Neglect - Fort Worth ISD Board Policy Manual - Policy Online, 2023).

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Slide 8: Three Risk Management Strategies 

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Slide 8: Three Risk Management Strategies 

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Three risk management strategies for mandatory reporting in education are:

1. Start with clear policies and procedures. This helps identify the problem and steps required to report situations when they arise.

2. Provide regular training. This ensures there is less negligence in mandatory reporting situations by school employees.

3. Follow up on reported incidents. By conducting investigations and following up on reported abuse, school counselors can verify the reporting was based on facts and was completed in a timely manner.

It is important to implement these types of strategies to minimize the possible risk of legal and ethical liabilities. They are the best preventative measures school districts can utilize for mandatory reporting (How You Can Help Protect Children a Texas School Employee’s Guide to Reporting Suspected Abuse & Neglect, 2020).

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According to The American School Counselor Association (ASCA, 2022), their Ethical Standards for School Counselors Section A.6.b. states "School counselors support students' right to be safe and to be free from abuse and harm."

This code emphasizes the role of the school counselor in keeping students safe and from harm. Mandatory reporting is one way to achieve this.

Ethically, this may cause some dilemmas for school counselors. For example, in a meeting the student is expecting the school counselor to keep what they told them confidential but the subject of abuse or neglect is breached. The counselor decides to report the information, but it could be at the risk of losing the trust of the student and possibly the relationship. Ultimately, the most ethical choice is reporting it, even if it is emotionally difficult.

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Slide 10: Personal Connection to the Legal and Ethical Standards

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Slide 10: Personal Connection to the Legal and Ethical Standards

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In daily practice, legal and ethical standards should be used as guidelines for school counselor conduct. They provide a type of checklist that helps to navigate the specific job duties including mandatory reporting, confidentiality, providing safety and support, and more. These standards protect both the counselors and the students in various situations by ensuring that ethically sound choices are made and within legal boundaries.

These connections to the law help me create educational goals that hold me accountable to a set level of standards. The law provides a framework of clear expectations needed in order for my goals to be fair and equitable to all. In return, my goals enable me to assist students and staff more effectively and assuredly with their overall needs.

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Slide 11: Recommendations / Best Practices for Compliance

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Slide 11: Recommendations / Best Practices for Compliance

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Based on U.S. and Texas laws and school counselor ethical codes, here is a brief list of recommendations and best practices for compliance with mandatory reporting of child abuse and neglect in Texas:

Know the Laws: To stay compliant and keep students and staff safe, learn the Texas Family Code, Chapter 261, especially Subchapter B, Sections 261.101-261.110, as well as other related laws to have a clear understanding of the mandatory reporting requirements. Review the laws regularly for possible updated amendments.

Establish Clear Policies and Procedures: There should be a clearly developed protocol at the district and school levels to ensure that all staff, including the school counselor, know what to do in case a mandatory reporting situation arises.

Abide by School Counselor Ethical Standards: Check to make sure reporting policies and procedures also align with the ethical standards of groups such as ASCA so that these considerations are being met as well.

Provide Training and Professional Development: Regular attendance of continually offered training opportunities is essential for staying on top of best practices and understanding what to do in a variety of mandatory reporting situations, including recognizing signs of abuse and neglect.

Maintain Confidentiality: It is important to maintain the confidentiality of student information, including child abuse and neglect investigations. The only exception to this is when law enforcement involved in a case needs information in order to investigate. Even then, attempt to contact the parents, or the student if they are 18 years of age, in order to stay within FERPA guidelines.

Follow Through and Document Thoroughly: No school employee, including school counselors, should rely on another employee to report a case of suspected child abuse or neglect. Once an employee becomes aware of this information, it should be officially reported within 48 hours. Document specific information, dates, and times of anything relevant to a potential case. Stay on top of each case as it may become an investigation and require thorough documentation. Even if a report is not investigated, it is important to keep the information in the event of potential future situations that need reporting.

Collaborate with Colleagues and Legal Associates: Sometimes it is helpful to speak with colleagues who have interactions with students to see if they have other helpful information. Seek legal advice when unsure of how to handle a mandatory reporting situation.

The mandatory reporting of child abuse and neglect is serious. It is always better to err on the side of caution than to disregard a potential situation- not just for the potential liability if not reported, but more importantly for the safety of the students.

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American School Counselor Association. (2020). Ethical standards for school counselors. In ASCA Ethical Standards for School Counselors. Retrieved from https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

Child Abuse Prevention and Treatment Act (CAPTA), Pub. L. No. 93-247, 42 U.S.C. § 5106g (2018). Retrieved from https://www.acf.hhs.gov/sites/default/files/documents/cb/capta.pdf

Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 CFR Part 99 (2021). Retrieved from https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

Texas Department of Family and Protective Services (DFPS). (2023). Retrieved from https://www.dfps.texas.gov/

How you can help protect children: a Texas school employee’s guide to reporting suspected abuse & neglect. (2020). https://tea.texas.gov/texas-schools/health-safety-discipline/educators-guide-2020-english.pdf

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Mellon, B. E. (2013, December 9). Few charged with failure to report abuse. Houston Chronicle. https://www.houstonchronicle.com/news/houston-texas/education/article/few-charged-with-failure-to-report-abuse-5047094.php

Policy Code FFG – Student welfare: child abuse and neglect – Fort Worth ISD board policy manual - policy online. (n.d.). Pol.tasb.org. Retrieved December 9, 2023, from https://pol.tasb.org/PolicyOnline/PolicyDetails?key=1101&code=FFG#localTabContent

Porter v. State, 07-01-0390-CR. (2003). VLex. Retrieved December 6, 2023, from https://case-law.vlex.com/vid/porter-v-state-no-884881953

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Reports for child abuse, neglect exceed pre-pandemic levels. (2023). Kvue.com. https://www.kvue.com/article/news/community/reports-child-abuse-neglect-exceed-pre-pandemic/269-45aa78d1-4db5-4991-b842-1638fa8e6fe6#:~:text=The%20numbers%20that%20were%20provided

Texas Administrative Code. (2023). Title 25, Part 1, Chapter 133, Rule §133.47. Retrieved from https://texreg.sos.state.tx.us/public/readtac%24ext.TacPage?sl=T&app=9&p_dir=N&p_rloc=204516&p_tloc=&p_ploc=1&pg=2&p_tac=&ti=25&pt=1&ch=133&rl=46

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Texas Education Agency. (2019). Welcome to Texas Education Agency | Texas Education Agency. https://tea.texas.gov/

Texas Family Code. (2018). Section 261.101. Retrieved from https://statutes.capitol.texas.gov/Docs/FA/htm/FA.261.htm#:~:text=261.101.,as%20provided%20by%20this%20subchapter

Texas Penal Code. (2007). Section 38.17. Retrieved from https://statutes.capitol.texas.gov/Docs/PE/htm/PE.38.htm

Texas Penal Code. (2023). Section 20A.02(a)(5) or (7). Retrieved from https://statutes.capitol.texas.gov/Docs/PE/htm/PE.20A.htm

U.S. Department of Education. (2022). U.S. Department of Education. https://www.ed.gov/

Victims of Child Abuse Act of 1990, 42 U.S.C. §§ 13031 et seq. & 18 U.S.C. § 2258. 34 U.S.C. § 20341 (1990). Retrieved from https://uscode.house.gov/view.xhtml?path=/prelim@title34/subtitle2/chapter203&edition=prelim