CHILD ABUSE LEGISLATION:
A Crossword Puzzle of
16 New Legislative Acts
Acting on recommendations from a 2012 report of the Task Force on Child Protection, the General Assembly has in piecemeal fashion adopted multiple pieces of child abuse legislation. In fact, 16 different acts have been adopted, and more may be in the works. In 2013, Acts 105, 107, 108, 109, 116, 117, 118, 119, 120, and 123 were adopted. More recently, Pennsylvania Governor Corbett on different dates in April signed into law Acts 29, 32, 33, 34, 44, and 45. Most of the changes are effective 12/31/14; however, some are effective earlier. This piecemeal legislation enacts a comprehensive revision to the Pennsylvania Child Protective Services Law, 23 Pa.C.S.A. § 6301 et seq., as well as amendments to various related statutes.
The legislation is voluminous, and no doubt will significantly improve Pennsylvania’s child protection services. It will require changes to school district Policy 806 (Child/Student Abuse), and some changes in reporting procedures. However, KKAL’s initial assessment is that it will not result in major substantive changes in school district background check and reporting practices.
Sixteen separate legislative acts … wow! Understanding everything that has been done through the new legislation is like putting together a massive crossword puzzle.
It is hard to capsulize the nature of the many changes; however, many of the changes reflect fine tuning of definitions, and adding substantial detail to assist those who are required to report in understanding when reports are required and the required report content. There is also a great deal of reorganization in the structure of the primary child abuse statute.
It sure will be helpful when someone puts the pieces together and disseminates a comprehensive document incorporating all of the changes. For now, the following are just a few highlights from the voluminous changes.
Act 107 of 2013 addresses court custody disputes, and directs the court to consider information obtained from the Pennsylvania Department of Public Welfare relating to child abuse reports.
Act 108 of 2013 lowers the threshold of reporting from “serious bodily injury” to just “bodily injury.” This is one of the acts that adds a great deal of detail. For example, specification that child abuse includes unreasonably restraining a child or forcefully shaking a child. At the same time, it states that child abuse does not include use of reasonable force if designed to maintain order and control.
Act 109 of 2013 strengthens existing legal provisions designed to protect confidentiality of the names of children who are abuse victims.
Act 120 of 2013 amends the Professional Educator Discipline Act, in order to extend its application to cyber charter school instructors and also to add detail to the type of sexual misconduct for which an educator may be disciplined, including loss of license to teach.
Act 123 of 2013, which became effective 3/18/14, redefines the obligation of the County Children and Youth Agency to investigate reports of possible child abuse and also mandates that if a report involves abuse by a school employee or service provider, the school shall immediately implement a plan to ensure the child’s safety. Of course, this action would be coordinated with school district investigation and personnel procedures.
Act 29 of 2014 provides for a greatly expanded state database of child abuse information. It also adds 23 Pa.C.S.A. § 6305 on electronic reporting. This section mandates that DPW establish procedures for secure and confidential use of electronic technologies to report required information to DPW. It also specifically states that: “A confirmation by the Department of the receipt of a report of suspected child abuse submitted electronically shall relieve the person making the report of making an additional oral or written report….” This means that reports will be permitted to be made by email in lieu of the previously required initial, immediate oral report followed by a written report. However, § 6306 directs DPW to promulgate regulations to implement the electronic reporting and other provisions of the new law, and electronic reporting may not be used until DPW establishes a system.
Concerning “independent contractors,” as under prior law, Act 33 of 2014 mandates child abuse reporting by certain individuals who have direct contact with children. The concept of “direct contact with children” was incorporated in multiple places in the prior law; however there was no definition of this terminology. Act 34 adds a definition of “direct contact with children,” namely: “The care, supervision, guidance or control of children, or routine interaction with children.”
Likely by legislative oversight, Act 33 appears to eliminate the mandate for child abuse clearances by independent contractors. However, school districts no doubt will want to continue current practices with independent contractors without regard to the absence of a mandate.
Act 33 continues the requirement for reporting when a person “has reasonable cause to suspect that a child is a victim of child abuse.” However, it broadens the definition of individuals who are “mandated reporters,” and also the grounds that trigger a requirement for the report.
Current law permits any person to make a report, whether or not a mandated reporter, and this authorization is continued. However, the title of § 6312 has been changed from stating that any person is “permitted,” to state that any person is “encouraged” to report suspected child abuse.
Act 32 expressly adds attorneys as mandated reporters and also increases the penalties for failure of a mandated reporter to make a report of suspected child abuse.
Act 34 of 2014 reiterates and strengthens the prior law provision prohibiting employment retaliation for anyone who makes a child abuse report.
For schools, the current law prior to the new legislation states various rules for school officials separately from the rules for other mandated reporters – and mandates a bifurcated system of reporting, with different rules depending whether suspected abuse was committed outside of school by someone not a school employee, or was committed by a school employee. Abuse by someone not a school employee was reported by a school administrator to DPW and the county agency in the same manner as mandated reports are submitted by mandated reporters outside of schools. However, the current law includes a separate reporting procedure for suspected child abuse committed by school employees, under which reports are required to be made to law enforcement personnel and the district attorney, with responsibility placed on law enforcement officials to notify the county agency.
Acts 44 and 45 of 2014 repeal the separate provisions for school employees and the different reporting procedures applicable to child abuse committed by school employees. Acts 44 and 45 essentially require the same reporting by school officials – whether abuse is committed by a school employee or someone else – and place school officials under the same rules applicable to mandated reporters outside of schools. Similarly, the separate provisions in the current law concerning child abuse clearances for school employees are repealed, but prospective school employees will still be required to provide child abuse clearances under the provisions applicable to child care personnel outside of schools.
Elimination of the separate provisions for school employees and the bifurcated reporting system will in certain circumstances change the legal requirements applicable to school districts concerning the agency to which child abuse by a school employee or service provider is reported. With repeal of the separate provisions applicable to child abuse committed by school employees, the mandated reporting required by the Child Protective Services Law will in all cases be directed to the county agency and DPW’s Childline, which agencies then have a duty to report to law enforcement officials as appropriate.
However, even though the mandated report by school officials to law enforcement officials as required under the current Child Protective Services Law will be eliminated, the School Code “Safe Schools Provisions” will still require reporting to law enforcement officials in certain circumstances, and schools will in any event be well advised to err in favor of reporting to law enforcement officials any conduct that might constitute a criminal offense.
Conclusion. In typical fashion, the legislature did not enact this legislation in a simple or logical manner. The enactment of the changes in 16 separate acts rather than one comprehensive statute makes the legislation difficult to piece together and interpret – and likely has led to oversights that will require corrective legislation.
DPW will begin the process of implementing the new legislation, including developing regulations, forms, and procedures. We understand PSBA will also be providing guidance to school districts. Subject to review of guidance from PSBA, school districts should begin the process of review and revision of Policy 806 to comply with the new legislation … and stay tuned for more information from PSBA, the General Assembly, and DPW.
Policy 806 on child abuse is an extremely important policy with many legal ramifications, so this is one of those policies on which school districts should be sure to consult district legal counsel. Of course, schools should also be attentive to the requirement added in 2013 for schools and independent contractors to provide child abuse recognition and reporting training for employees who have direct contact with children.
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We hope you find this issue of KKAL’s Education Law Watch helpful and informative. Please understand that the Law Watch is designed to provide information about current developments and required actions. It does not constitute legal advice, and school districts should consult a lawyer knowledgeable in this area of the law prior to taking specific actions on the issues addressed.
If you have any questions regarding any education law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717/392-1100, or email us at the following addresses:
KEGEL KELIN ALMY & LORD LLP
Education Law Group
(717) 392-1100
Clarence C. Kegel, Jr. kegel@kkallaw.com
Howard L. Kelin kelin@kkallaw.com
Jeffrey D. Litts litts@kkallaw.com
Rhonda F. Lord lord@kkallaw.com
Amy G. Macinanti macinanti@kkallaw.com
Denise E. Elliott elliott@kkallaw.com
Jason T. Confair confair@kkallaw.com
Stephen S. Russell russell@kkallaw.com