Every year, the Maine Child Death and Serious Injury Review Panel sees multiple instances where unusual injuries in infants go unreported or appropriately acted upon. 

While a 2021 report from the panel explored the problem in-depth, it continues to be an issue, as was discussed at the most recent child welfare quarterly update with the Legislature’s Health and Human Services Committee. 

Maine has a mandated reporter law for situations like this. It requires professionals who are likely to come in contact with infants and other children to alert the appropriate authorities of potential abuse or neglect. However, there are gaps in the law that leave little to be done when those reports aren’t made — whether or not it’s intentional. 

Mark Moran, a licensed clinical social worker who chairs the panel, said he suspects cases go unreported because of a lack of awareness that Maine law requires those sorts of injuries to be reported even if abuse isn’t suspected. Often, the missed reports come to light because someone else makes a report later on. For example, an emergency room provider may fail to report an injury that a primary care doctor notices later during a follow up visit. 

As the panel’s most recent annual report notes, not every injured infant will end up a victim of abuse, but “every young child with a sentinel injury should receive a careful, multidisciplinary evaluation.”

While Moran said the intention behind the mandated reporter law is not to jump to conclusions and sever parental rights, research shows that children with certain injuries are at risk of more serious injuries or even worse outcomes. So, the goal is to identify those children early enough to prevent potential future harm. 

“We’re looking to identify what the problem is, fix the problem and put the family back together,” Moran said.

Maine’s mandated reporter law

Maine’s mandated reporter statute dates back to 1965. As it currently reads, certain professionals — doctors, dentists, teachers, social workers, law enforcement — are required to immediately report known or suspected abuse, neglect or suspicious deaths of children. 

When it was first adopted, the law outlined a $100 fine, up to six months in prison or both for failing to report. By 1977, the potential penalty increased to a $500 fine and was changed from a misdemeanor to a civil violation without the chance of prison time, according to a review of the law’s history. 

The potential penalty for failing to make a mandated report in today’s law is still a civil violation of up to $500. It reads: “A person who knowingly violates a provision of this chapter commits a civil violation for which a forfeiture of not more than $500 may be adjudged.”

It is not clear how much underreporting is occurring in the state because “if nobody reports it, we don’t know about it,” said state Sen. Tim Nangle (D-Cumberland). The law gives reporters discretion, which may lead one person to report a scenario that another may not. Experts have said that Maine’s definition of neglect is also easily conflated with poverty.

Despite those nuances, there is one aspect of the law that does not leave room for discretion: Mandated reporters are required to report babies with fractures, burns, multiple bruises, poisoning and other severe injuries regardless of whether abuse or neglect is suspected. 

This stemmed from a 2013 bill introduced on behalf of then-Gov. Paul LePage that required reporting of such injuries to children under 6 months old or otherwise unable to walk on their own. 

The original text of the bill also proposed that any failure to make this sort of report be a Class E crime, which is a misdemeanor. However, that language was removed before the bill was adopted into law. An exception was also added a couple years later for injuries sustained during the delivery of the child. 

The gap in the reporter statute 

During a recent meeting with the Legislature’s Health and Human Services Committee, Moran said he wasn’t aware of the penalty for failing to make a mandated report ever being enforced. 

“I wonder why we have the civil penalty if no one’s ever going to be held accountable,” Nangle said during that discussion. 

The part of the statute that relies on individual discretion is harder to prosecute, Moran said, because it becomes a question of whether someone intentionally failed to report. Whereas he noted that the section about babies with specific injuries has more opportunities to hold people accountable because there’s no question of discretion.

Moran also pointed out that there isn’t a clear enforcement mechanism. The statute doesn’t say who is responsible for assessing the fine or investigating missed reports. 

Had he known about this confusion earlier, Nangle told Maine Morning Star he probably would have introduced legislation this session to direct the Office of the Maine Attorney General to investigate these instances and decide an appropriate recourse. 

Moran also said that enforcing the penalty could logically fall to the Attorney General, since that is the prosecutorial entity normally responsible for civil violations. 

To punish or to educate? Both.

However, the ambiguity raises a bigger question of how to balance punishment with education. Moran said the panel is more interested in changing people’s behavior than handing out punishments, but it doesn’t have to be one or the other; it could be both.

During the committee meeting, Nangle said he has “no stomach” for people not reporting, but he also told Maine Morning Star that educating mandated reporters is important to achieve the ultimate goal of keeping children safe. 

Rather than paying a fine, he said there could be other penalties that require additional education. State law currently requires mandated reporters to complete training every four years. 

Moran also said there have been discussions about filing complaints with licensing boards for people who fail to report, but that sort of disciplinary approach doesn’t provide broader education and awareness unless it is publicized. 

The Maine Child Death and Serious Injury Review Panel recommended a different approach in its 2023-24 annual report. The panel suggests the Office of Child and Family Services works with the Attorney General’s office to compose a letter that could be sent to mandated reporters as well as their supervisors or legal counsel when the reporter fails to meet the statutory requirements.

As Moran described it, involving legal counsel or someone’s superior could be more effective than a $500 fine. Not only could the person in violation receive more education about what’s expected of them, but leadership could also take the opportunity to refresh other mandated reporters in the organization.

“We have a responsibility to keep our kids safe,” Moran said. “That’s the bottom line. That’s the baseline that we start from as a society.”