Child Dental Neglect Laws: Specifications and Repercussions for Dentists in 51 Jurisdictions

1 Departments of Dental Public Health and Pediatric Dentistry, School of Dental Medicine, University of Pittsburgh; and Research Fellow, Cecil G. Sheps Center for Health Services Research, University of North Carolina at Chapel Hill. University of Pittsburgh, 3501 Terrace Street, Pittsburgh, PA 15261

Sara M. Safdari-Sadaloo

2 Department of Pediatric Dentistry, School of Dental Medicine, University of Pittsburgh, 3501 Terrace Street, Pittsburgh, PA 15261

Elizabeth Van Nostrand

3 Department of Health Policy and Management, University of Pittsburgh Graduate School of Public Health, 130 DeSoto Street, Pittsburgh, PA, 15261

1 Departments of Dental Public Health and Pediatric Dentistry, School of Dental Medicine, University of Pittsburgh; and Research Fellow, Cecil G. Sheps Center for Health Services Research, University of North Carolina at Chapel Hill. University of Pittsburgh, 3501 Terrace Street, Pittsburgh, PA 15261

2 Department of Pediatric Dentistry, School of Dental Medicine, University of Pittsburgh, 3501 Terrace Street, Pittsburgh, PA 15261

3 Department of Health Policy and Management, University of Pittsburgh Graduate School of Public Health, 130 DeSoto Street, Pittsburgh, PA, 15261

Associated Data

Abstract

Introduction:

The purpose of this study was to perform an interjurisdictional comparison of statutes and regulations (collectively “laws”) pertaining to the reporting of child dental neglect by dentists. Case law interpretation or enforcement of the laws was not included in this study.

Methods:

We identified child neglect laws in 51 jurisdictions (50 states and District of Columbia) by performing a Westlaw legal database search, conducting a systematic internet search, and engaging in direct communication with each jurisdiction. We evaluated laws on two domains relative to dentists: 1) protection from civil and criminal liability when reporting child neglect; and, 2) sanctions for failing to report child neglect.

Results:

All jurisdictions have child neglect laws; however, only eight specify failing to seek dental treatment as child neglect and none adopt the American Academy of Pediatric Dentistry (AAPD) definition. While all jurisdictions protect dental professionals who report child dental neglect in good faith, sanctions for failing to report neglect include imprisonment from up to 6 months (49%) to 5 years (2%), and fines from up to $1,000 (61%) to $10,000 (6%).

Conclusions:

Although the laws vary across jurisdictions, dentists are protected when reporting child dental neglect but can be and sanctioned for failing to report it.

Practical Implications:

Dentists may not be aware of the current sanctions or interjurisdictional differences. Becoming informed of these laws may incentivize dentists to establish reporting protocols for child dental neglect.

INTRODUCTION

According to the American Academy of Pediatric Dentistry (AAPD), child dental neglect is the “willful failure of parent or guardian to seek and follow through with treatment necessary to ensure a level of oral health essential for adequate function and freedom from pain or infection.” 1 This definition has been adopted by the American Academy of Pediatrics (AAP). 2, 3 Dentists are mandated reporters of child abuse and neglect, and are therefore required to report suspected cases. 4–11 In addition, according to the American Dental Association (ADA) Principles of Ethics and Code of Professional Conduct, “Dentists are ethically obligated to keep current their knowledge of both identifying abuse and neglect and reporting it in the jurisdiction(s) where they practice.” 12

Requiring dentists to report dental neglect is imperative because of a failure to receive adequate dental care results in significant long-term consequences for children. 13, 14 Untreated dental caries can lead to pain, infection, malnutrition, missed school days and decreased school performance, and altered growth and development. 13–15 The prevalence of child dental neglect has not been documented; 17 however, estimates of child physical neglect range from 12 percent to 16 percent of children, with 37 percent of children in the United States having experienced a child protective services investigation by the age of 18 years-old. 18–20 Although the prevalence of child dental neglect is not reported in the literature, research suggests that it is underreported. 21, 22

Previous research focuses primarily on the identification of patients with suspected dental neglect 21–24 and the role of dentists in reporting. 6, 7, 9, 11, 21, 22, 24, 25 There are two interjurisdictional policy analyses on dental neglect revealed in a literature review: one studying the specification of dentists as mandated reporters of child abuse and neglect conducted in 1995 11 and another surveying state dental directors and state health departments for the specification of dental neglect in state laws performed in 1986. 10 Absent from this research is an interjurisdictional analysis of what constitutes child dental neglect and an identification of what sanctions, if any, exist for failing to report child dental neglect for mandated reporters, such as dentists.

This study does not consider what actions or omissions could be considered to be “child abuse” if committed by dentists; rather, our study (1) examines what constitutes child dental neglect and whether specific jurisdiction’s definitions adopt that of the AAPD; and (2) analyzes specific jurisdictions’ laws regarding protections afforded to dentists who report child neglect and sanctions, specifically related to imprisonment and fines, for the failure to report.

METHODS

Identifying Child Neglect Laws

We identified child neglect laws in 51 jurisdictions in March 2018, including all states and the District of Columbia. Laws of the United States territories and tribal nations were determined to be beyond the scope of our study. Child neglect laws, were first identified through the Department of Health and Human Services Child Welfare Information Gateway website. 5 After obtaining the citations, each law was verified using an Internet search. Five jurisdictions specify “dental” in their definition of child neglect.

In order to ensure comprehensibility, we performed an additional search using the Westlaw legal database using “dent! w/s neglect” as our search string. The Westlaw search revealed 37 regulations and 117 statutes in which “dental” and “neglect” co-occurred in the same sentence.

These laws were individually analyzed for relevancy, resulting in 42 relevant laws. Child neglect laws exist within a variety of legal titles. For example, in Alabama, the definition of child neglect is found under Title 26, “Infants and Incompetents.” In Arkansas, it is found under Title 12, “Law Enforcement, Emergency Management, and Military Affairs” and in Alaska under Title 47, “Welfare, Social Services, and Institutions.” Within the 42 laws, 19 definitions of child neglect were identified, eight of which specified “dental” in their definition of child neglect.

After reviewing each law for relevancy, a binary system of coding was used to determine whether the laws included “medical personnel,” “dental personnel” and the adoption of the AAPD definition of dental neglect. Identifying case law interpretation of these laws was deemed to be beyond the scope of this study.

Reporting or Failing to Report Neglect by Mandated Reporters

We coded the laws for each jurisdiction on two domains related to reporting of child neglect by dentists: 1) civil and criminal liability protections for dentists who report child neglect; and 2) penalties, or sanctions, for the failure of dentists to report child neglect as a first offense. We excluded sanctions for failing to report child neglect as a second or subsequent offense from our analysis. We also excluded the criminal law classification, such as misdemeanor or felony, from our analysis due to the variable labels and definitions of each type of classification across jurisdictions.

When reviewing the content of the laws for sanctions for failing to report child neglect as a mandated reporter, the laws allowing the imposition of prison sentences were classified in four categories: 1) Laws that did not specify imprisonment sanctions; 2) Laws that allowed the imposition of prison sentences from one day to less than six months; 3) Laws that allowed the imposition of prison sentences from six months to less than one year; and 4) Laws that allowed the imposition of prison sentences of greater than one year. Laws allowing the imposition of fines were also classified in four categories: 1) Laws that did not specify fines; 2) Laws that allowed the imposition of fines of less than $1,000; 3) Laws that allowed the imposition of fines from $1,000 to $4,999; and 4) Laws that allowed the imposition of fines from $5,000 to $10,000.

Verification of Findings

After identifying and coding the child neglect laws, we collected quantitative data by contacting the state department of health and human services in each of the 51 jurisdictions via email (March - July 2018). The purpose of this communication was to verify findings, identify the agency’s interpretation of the law, and ensure research comprehensibility. For each jurisdiction,, we cited the relevant law and set forth the definition of child neglect we identified using internet and Westlaw legal database searches. Jurisdiction specific sanctions and protections were also set forth. We asked representatives from each jurisdiction to confirm our interpretation of the law and to reveal if “dental neglect” and sanctions were specified elsewhere in the jurisdiction’s laws. The response rate was 26 percent (13 responses) after the first contact. In our second contact, one month later, we emailed the state departments of health and human services again if they had not previously responded and received 17 additional (33 percent) responses. In our third and final contact, we emailed the jurisdiction representative in the Association of State and Territorial Dental Directors, which resulted in one additional response (2 percent). After three contacts, we received responses from a total of 31 jurisdictions (61 percent), all of which confirmed that we identified the correct legal citation and correctly categorized sanctions for failing to report child neglect.

RESULTS

While all 51 jurisdictions have laws that define child abuse and neglect, only eight jurisdictions (16 percent) specify ‘dental’ within its definition: New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Virginia, Utah, and Wisconsin ( Table 1 ). None of the 51 jurisdictions adopted the AAPD definition of dental neglect ( Table 1 ). For example, Pennsylvania defines child neglect as “A physical condition caused by the act or failure to act of a perpetrator which endangers the child’s life or development or impairs the child’s functioning and is the result of one of the following: Failure to provide essentials of life, including adequate medical and dental care” (23 Pa.C.S. § 6301–6385) (Appendix A).

Table 1.

The Specification of “Medical” and “Dental” Terms in the Definition of Child Neglect for 51 United States Jurisdictions

Although only eight jurisdictions specify dental neglect, far more jurisdictions include medical neglect in their definitions of child neglect (n=45, 88 percent) ( Table 1 ). When communicating with state departments of health and human services, several jurisdictions included dental neglect as part of medical neglect even if “dental” was not specified in the jurisdiction’s law (email communication). For example, via email communication, the Washington State Department of Social and Health Services stated that dental neglect was considered as part of the definition of negligent treatment even though it is not stated with specificity: “‘Negligent treatment or maltreatment’ means an act or a failure to act, or the cumulative effects of a pattern of conduct, behavior, or inaction, that evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to a child’s health, welfare, or safety.” Wash. Rev. Code § 26.44.020 (Appendix A).

In all 51 jurisdictions, laws protect mandated reporters, such as dentists, from civil and criminal liability provided that they report the child neglect in “good faith” ( Table 2 ). All 51 jurisdictions also describe sanctions for failing to report neglect by mandated reporters; however, the sanctions vary between jurisdictions. Some jurisdictions allow for the imposition of fines, others impose imprisonment, and some allow both. ( Table 2 , Figures 1 & 2 ). Forty-nine percent of the jurisdictions allow mandated reporters who fail to fulfill their obligations to be imprisoned for up to six months ( Table 2 , Figure 1 ). Sixty-one percent allow for fines up to $1,000 ( Table 2 , Figure 2 ). Eighty-eight percent (n=45) impose both fines and imprisonment ( Table 2 ).

Sanctions Related to Imprisonment for Failing to Report Child Neglect by Mandated Reporters in 51 United States Jurisdictions

Sanctions Related to Fines for Failing to Report Child Neglect by Mandated Reporters in 51 United States Jurisdictions

Table 2.

Protection from Civil and Criminal Liability when Reporting Child Neglect and Sanctions † Related to Imprisonment and Fines for Failing to Report Child Neglect by Mandated Reporters in 51 United States Jurisdictions

† The reported sanctions pertain only to the first offense for failing to report neglect as a mandated provider.

‡ The sanction for the first offense for failing to report neglect as a mandated provider includes imprisonment up to 5 years in the state of Florida.

Ω The sanction related to fines are “what the court fine deems appropriate,” and thereby not specified, in the state of North Carolina.

• Both the protections and sanctions for the first offense for failing to report neglect as a mandated provider were confirmed with the Department of Health and Human Services.

However, in 41 percent of jurisdictions (n=21), prison terms longer than six months can be imposed ( Table 2 , Figure 2 ). In one jurisdiction, Florida, failure can result in imprisonment up to five years ( Table 2 , Figure 1 ). Fines were also variable with 29 percent (n=15) stating fines up to $5,000 and three jurisdictions – Alaska, Delaware and Oregon – with fines up to $10,000 ( Table 2 , Figure 2 ).

There was a wide variation in imprisonment and fines for failing to report child neglect as a mandated reporter. For example, in Colorado, the sanction for failing to report child neglect by mandated reporter is up to six months of imprisonment and a fine up to $1,000 ( Table 2 , Figures 1 & 2 ). Comparatively, in Alaska, sanctions for the failure to report include is up to one year of imprisonment and a fine of $5,000 to $10,000 ( Table 2 , Figures 1 & 2 ). Delaware, Maryland, Vermont and Virginia levy fines but no imprisonment for failing to report neglect ( Table 2 , Figure 1 & 2 ).

DISCUSSION

To our knowledge, this is the first study to comprehensively analyze laws requiring dentists to report child neglect. Overall, our analysis shows a lack of uniformity among jurisdictions regarding what constitutes child neglect and sanctions for failing to report it. Our research reveals two major findings. First, eight jurisdictions specify “dental” within the definition of child neglect but none adopted the AAPD definition of dental neglect. Second, there is interjurisdictional variation in mandated reporter sanctions for failing to report child neglect, ranging from imprisonment from up to 6 months to 5 years and fines from up to $1,000 to up to $10,000.

Few Jurisdictions Specify “Dental” as a Component of Neglect.

Our interjurisdictional comparison revealed that only eight jurisdictions specify “dental” within the definition of child neglect, which is an increase from two jurisdictions in 1986. 10 In some jurisdictions where “dental” is not specified within the law’s definition of child neglect, dental neglect may still be interpreted to be a form of child neglect irrespective of its specific inclusion in the legal definition. This assumption can create confusion. If dental neglect is considered a part of child neglect but “dental” is not specified by the law, dentists may be unaware that dental neglect is considered part of the jurisdiction’s definition. For example, in a study by Ramos-Gomez and colleagues (1998), 13 percent (266/2,000) of California dentists surveyed erroneously reported that dentists were required by California law to report suspected cases of abuse but not neglect. 21 Moreover, dentists may not be aware of the serious consequences of dental neglect and the importance of reporting. This may be contributing to an underreporting of child dental neglect by dentists.

Additionally, the absence of the term “dental” within the jurisdiction’s definition of child neglect may result in confusion, not only for dentists, but all mandated reporters and law enforcement. To add clarity for all mandated reporters – including schoolteachers, day-care workers and health care practitioners – jurisdictions should adopt the AAPD definition of child dental neglect within their child neglect laws. A clear, uniform definition of child dental neglect may foster better reporting and implementation of law enforcement on child dental neglect.

Inconsistent Sanctions for Failing to Report Child Neglect.

A legal analysis performed in 1995 found that sanctions were not delineated in every jurisdiction for mandated reporters who failed to report suspected cases of child abuse and neglect. 11 Although all jurisdictions currently impose sanctions for failing to report child neglect by mandated reporters, the laws are inconsistent. The severity of the sanctions may reflect the recognition of the seriousness of child abuse and neglect as a public health issue as well as the importance of the role of mandatory reporters, such as dentists, in recognizing the problem and intervention.

Dentists may not be aware of the sanctions or that there are interjurisdictional differences. In 1998, Ramos-Gomez and colleagues (1998) found that 59 percent (1,176/2,000) of California dentists surveyed were unaware of the legal consequences of failing to report suspected child abuse or neglect. 21 The reporting requirements and sanctions for failing to report are the same for both child neglect and child abuse. Becoming aware of the current sanctions, with respect to fines and imprisonment, may incentivize dentists to be vigilant in looking for signs of child dental neglect and establish reporting protocols. With increased awareness of the sanctions for failing to report child dental neglect, timelier reporting may occur. This could result in fewer long-term repercussions for children suffering from dental neglect thus improving their oral health. Additionally, timely reporting of child neglect by dentists may avoid any vulnerabilities to malpractice lawsuits for injuries suffered by a victim of child neglect after a failure to report. The sanctions found in this analysis may encourage dentists to fulfill their legal and ethical obligation to address the serious public health problem of child neglect.

Good Faith.

The laws in each jurisdiction contain language to protect mandated reporters from criminal and civil liability arising from reporting child neglect in “good faith.” This finding is consistent with a previous legal analysis on dentistry’s role in preventing child abuse and neglect in 1995. 11 Although the statutory definition of “good faith” is generally consistent across jurisdictions as “an assumption that the person, to best of his or her knowledge, had reason that the child is subject to abuse or neglect,” 5 the judicial interpretation of what actions constitute “good faith” varies by jurisdiction.

Limitations.

The results of this study should be interpreted in light of its limitations. Firstly, our analysis was limited to sanctions for failing to report child neglect as a mandated reporter as a first offense. Subsequent offenses for failing to report child abuse and neglect as a mandated reporter may have progressive sanctions depending on the jurisdiction. For example, in Pennsylvania, the sanction for the first offense of failing to report child neglect is imprisonment of six months to one year and fine of $1,000. The sanction for a second failure to report is imprisonment from three and half to seven years and a fine of up to $15,000. The sanction for a subsequent failure to report is imprisonment for two years and a fine of up to $25,000. Secondly, we reached out to the departments of health and human services in each jurisdiction to confirm our findings on the most current child abuse and neglect laws. An alternative department, such as the Department of Public Safety, may be more insightful as to child abuse and neglect laws. Thirdly, even after multiple attempts, we were not able to obtain confirmation of our findings for all 51 jurisdictions. Fourthly, the clinical identification and systemic causes of child dental neglect and state policies to address child neglect 26 were not within the scope of the specific aims of this legal analysis. Finally, case law interpretations of what actions or omissions constitute “good faith” were not analyzed.

Future analyses.

Future analysis should examine whether jurisdictions are enforcing the laws and whether those with more stringent sanctions for failing to report dental neglect are associated with increased reporting of dental neglect. Future research can also identify dentists’ awareness of these sanctions is associated with increased reporting of dental neglect.

Conclusion.

Our study provides current information on child neglect laws regarding the inclusion of “dental” in the definition of child neglect and the sanctions for failing to report child neglect by mandated reporters, such as dentists. We found that eight jurisdictions specified dental neglect within the definition of child neglect and no jurisdictions adopted the AAPD definition of dental neglect. Generally, dentists are protected when reporting child neglect and penalized for failing to report child neglect. While all jurisdictions consistently protect mandated reporters from civil and criminal liability for reporting child neglect in good faith, the sanctions for failing to report child neglect as a mandated reporter vary greatly with regard to imprisonment and fines.