The topic of mandatory reporting has been a major conundrum for the health care industry, and especially for those in case management. After all, our workforce has a front row seat to the life circumstances of patients and families, which can mean anything and everything across the psychosocial landscape. I’ve had a number of case managers express major confusion about the reporting requirements, especially whether they should report patients or their family members who are “undocumented illegal immigrants” to the authorities. Let’s clear up this conundrum!
Mandatory Reporting
Mandatory reporting refers to case managers and other practitioners informing formal state authorities about their suspicions for potential child or adult abuse, neglect, and exploitation. That word “potential” is an important one as it is up to those formal state authorities and agencies to define the actions and not the case manager. I’ve had countless colleagues in leadership roles for these agencies remind me of that fact!
Mandatory reporting is codified as law across the states most, if not all, health care disciplines, as well as other licensed professions (view your state requirements here). The Child Abuse Prevention and Treatment Act (CAPTA) was enacted in in 1974 and led to the subsequent Federal Laws in for this arena. The federal government, states, commonwealths, territories and the District of Columbia also have laws in place to protect older adults from abuse, neglect, and exploitation; they also guide the practice of adult protective services agencies, law enforcement agencies, and others. These laws vary across jurisdictions with more information available from the U.S. Department of Justice website.
Keep in mind any suspicions by you or the treatment team should be based on objective and documented facts deemed from a preliminary assessment versus subjective judgments or biases. It is easy to make assumptions about other person’s actions, but that is not the role of any case manager or other licensed professional. Besides, we all know that mantra about assumptions, or at least should.
In these situations, case managers should use critical thinking which involves 4 distinct steps:
- Enjoy objectivity by removing biases
- Assess the situation and obtain the facts
- Reflect on the assessment facts and obtain quick consultation as needed, then
- Document the information and move into action, whether mandatory reporting or not.
Keep in mind that there are potential consequences for failing to report potential acts of child, elder, or other abuse that could have been prevented. These actions vary based on the professional discipline sanctions by a state licensing board, to criminal culpability. Case managers are reminded that each case management credential prioritizes the importance of their workforce to heed any Federal, state, and local laws that guide their practice (Yup, those scope of practice laws for the state(s) of your primary licensure). In addition, CMSA’s Legal Standard of Practice (C) is equally clear on this professional requirement for case managers.
Mandatory Duty to Warn
A professional’s mandated duty to warn or duty to protect is different from mandatory reporting. Duty to warn involves when there is foreseeable and immediate concern about a patient’s potential to harm themselves or specific others, such as in suicidal or homicidal intent or action.
Duty to warn legislation was first imposed by the California courts in 1976 as part of the ruling in Tarasoff v. The Regents of the University of California. The ruling in this landmark case made it the legal duty of psychotherapists to warn third parties of patients’ threats to their safety. Yet, while the Tarasoff case triggered passage of duty to warn or duty to protect laws in most states, great variation exists among these laws, including which professionals they cover, and whether reporting is mandatory, permissive, or viewed in some other light. At the time of this writing 29 states have mandatory reporting laws, 14 states have permissive laws, and 4 states have no legislation. Georgia has unique nuances in their legal statutes that bear attention. Detailed information on these laws is available on one of my favorite websites for the National Conference of State Legislatures. You can access a state-to-state table with each law, its scope and status, as well as a color-coded interactive map.
As far as case managers go, in the absence of a state law to guide their actions, most professionals will err on the side of caution. They will proceed with assessment of the person, obtain requisite information about the potential threat, and then contact local authorities as there are concerns about a patient’s potential for self- or public-harm. This may include law enforcement, state or country agencies for mobile psychiatric emergencies and mental health crisis, or other entities and resources in place to manage said events.
Reporting Undocumented Individuals
It is a HIPAA violation for case managers to report persons who are undocumented to legal authorities for it breaches patient privacy and confidentiality. Hospitals and healthcare organizations have no duty to report individuals that they suspect or find out are undocumented immigrants. Legal and ethical guidance across case management’s established resources of guidance (e.g., state practice acts, codes of ethics and professional conduct, standards of practice) and the disciplines which comprise our workforce are unified in this stance (e.g., counseling, medicine, nursing, occupational therapy, physical therapy, social work, and others).
Hospital employees should only ask questions about a patient’s immigration status to define if the that person or their family is eligible for services or needed resources, and not to report them. Reporting patients and family members puts them at immediate risk of stigma, and potential discrimination by workforce members who may not be immigrant-friendly. Patients and family members may easily delay or refuse treatment because of their fears around being reported by a clinic, hospital, or other care provider and ultimately, deported.
Disclosure of information is limited to:
- When there is a court order or court-ordered warrant, subpoena, or summons issued by a judicial officer or grand jury officer
- There is an administrative or other legal request, or
- The covered entity in good faith believes the PHI to be evidence of a crime that occurred on the covered entity’s premises
More information on all the moving parts of HIPAA, including Mandatory Duty to Warn and Report is in The Ethical Case Manager: Tools and Tactics, specifically in Chapter 7: Ethics is What you do While Everyone Watches!
Ellen's Interprofessional Insights 