RULES AND REGULATIONS
Title 55--PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[55 PA. CODE CHS. 3480 AND 3490]
Protective Services
[29 Pa.B. 3513] Statutory Authority
The following amendments are adopted in Annex A under the authority of Articles VII and IX of the Public Welfare Code (62 P. S. §§ 701--774 and 901--922); 42 Pa.C.S. §§ 6301--6365 (relating to the Juvenile Act); section 2168 of the County Code (16 P. S. § 2168); section 405 of the County Institution District Law (62 P. S. § 2305); and 23 Pa.C.S. §§ 6301--6385 (relating to the Child Protective Services Law) (CPSL).
Notice of proposed rulemaking was published at 28 Pa.B. 1079 (February 21, 1998).
Purpose of Amendments
It is the purpose of Chapter 3490 (relating to protective services) to:
* Encourage more complete reporting of suspected child abuse; to involve law enforcement agencies, as permitted by this chapter, in responding to child abuse; and to establish protective services in each county, for the purpose of investigating reports swiftly and competently.
* Protect children from further abuse and provide rehabilitative services for children and parents involved so as to ensure the child's well-being and to preserve, stabilize and protect the integrity of family life wherever appropriate.
* Ensure that each county children and youth agency establishes a program of general protective services for children; to assess the risk of harm to a child and respond adequately to meet the needs of families and children who may be at risk and to prioritize the response and services to children most at risk.
* Provide for investigations of reports of suspected abuse of students by school employes and screen applicants for employment in schools to determine whether or not the applicant has a prior history of abusing children. The requirement to screen applicants for employment in schools is a new requirement and is in addition to the requirement to screen applicants for employment in child care agencies.
* Establish a training and certification program for all county children and youth agency staff who provide direct services to children who need protective services and for persons who supervise direct service workers.
Need for Amendments
These amendments are needed to implement the act of December 16, 1994 (P. L. 1286, No. 151) (Act 151) and Act 10 of 1995 Special Session (SS1), to clarify and amend existing regulations and to rescind Chapter 3480 (relating to child protective services--general).
Requirements
a. Section 3490.4 (relating to definitions) adopts the CPSL definition of ''child abuse'' in the regulations to:
1. Require the county children and youth agencies to investigate recent reports of suspected serious physical injury, and reports of imminent serious physical injury or sexual abuse or exploitation that are reported within two years of the date the alleged abuse occurred.
2. Include situations of imminent risk of serious physical injury and sexual abuse or exploitation of a child. This amendment seeks to prevent the abuse of children where there is a high probability of abuse.
3. Require mandated reporters to make a report of suspected child abuse when they have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child. The standard of when they are mandated to report has been changed from ''reasonable cause to believe'' to ''reasonable cause to suspect.''
b. Section 3490.34 (relating to pending complaint file) adopts the CPSL requirement that unfounded reports are expunged from the State and county files within 120-calendar days from when the report was received at ChildLine. Founded and indicated reports are expunged from the Statewide Central Register when the child turns 23 years of age. However, except for the identity of the child, information on founded and indicated reports of child abuse and student abuse are maintained indefinitely when the Social Security Number or date of birth of the perpetrator of child abuse or the school employe who abused the student is known.
c. Section 3490.39 (relating to expunction from the Statewide Central Register) adopts the CPSL requirement for the Department to establish a subfile of the names of perpetrators of indicated and founded reports of child abuse and student abuse in the Statewide Central Register when the Social Security Number or date of birth of the person responsible for the abuse is known. These reports remain on file indefinitely.
d. Section 3490.56 (relating to the county agency investigation of suspected child abuse perpetrated by persons employed or supervised by child-care services and residential facilities) adopts the CPSL requirement that child-care agencies and residential facilities develop and implement a plan of supervision or make alternative employment arrangements for the individual under investigation as the alleged perpetrator when the child is allegedly abused by an employe of the agency or facility. The plan shall be approved by the county agency.
e. Sections 3490.61 and 3490.235 (relating to supervisory review and child contacts; and services available through the county agency for children in need of general protective services) require the county agency supervisor to review reports of suspected abuse that are under investigation and reports that are being assessed to determine the need for general protective services to ensure the safety of the child and the progress made toward reaching a status determination. These sections also require the county agency to assure that contacts are made with the child and parents as often as necessary for the protection of the child but no less often than once a week when the child is in a high-risk status.
f. Section 3490.105(a) (relating to request by a perpetrator to amend or expunge an indicated report of child abuse received by ChildLine after June 30, 1995) adopts the CPSL requirement that perpetrators named in indicated reports of child abuse who seek to have the report amended or expunged to request the Secretary of the Department of Public Welfare (Department) to amend or expunge the report within 45-calendar days of the mailing date of the notice from ChildLine.
g. Section 3490.108 (relating to cooperation of county agencies and law enforcement agencies) adopts the CPSL requirement that county agencies and law enforcement officials shall, to the extent permitted by law, cooperate and coordinate their investigations of reports of suspected child abuse. The CPSL was amended to require county agencies to report certain types of child abuse to law enforcement officials.
h. Section 3490.109 (relating to report from law enforcement agencies) adopts the CPSL requirement that law enforcement agencies shall notify the county agency if a criminal investigation has been undertaken and the results of the investigation and prosecution of child abuse reports referred to them by the county agency. Prior to Act 151, county agencies were required to notify law enforcement officials of certain instances of suspected child abuse. However, there was no requirement for law enforcement officials to notify the county agency of the results of the referrals.
i. Sections 3490.131--3490.137 (relating to verification of the existence of child abuse and student abuse records for school employes) adopt the CPSL requirements that administrators of schools require all applicants for positions as school employes, including independent contractors and their employes who have contact with children, to submit a clearance statement from the Statewide Central Register. The Statewide Central Register is the State repository of all founded and indicated reports of child abuse and student abuse. A clearance determines if the applicant's name is on file as a perpetrator of child abuse or student abuse. An administrator or independent contractor of a school may not hire an applicant if the applicant is a perpetrator named in a founded report of child abuse or student abuse.
j. Sectopms 3490.141--3490.143, Subchapter B (relating to abuse of students in school) adopts the requirements of the CPSL regarding reporting and investigating reports of suspected serious bodily injury or sexual abuse or exploitation of a student by a school employe. School administrators are required to report suspected student abuse to the district attorney and local law enforcement officials. The law enforcement official is required to investigate the allegation and to report the suspected student abuse to the county agency if the official has reasonable cause to suspect that the child was abused by a school employe. The county agency is required to investigate the report to determine whether the report is a founded, indicated or unfounded report of student abuse.
k. Section 3490.192 (relating to request for a hearing from a school employe for indicated reports of student abuse) adopts the CPSL requirement that a person responsible for the abuse in an indicated report of student abuse has the right to request the Secretary of the Department to amend or expunge the report within 45-calendar days of the mailing date of the notice from ChildLine.
l. Sections 3490.201--3490.242 Subchapter C (relating to general protective services) adopts the CPSL requirement that each county agency must administer a program of general protective services for children who have been assessed as needing the services to prevent abuse, neglect and exploitation. The goal of general protective services is to: keep children safely in their own homes when possible; overcome problems that result in dependency; provide temporary substitute care; reunite children safely with their families, whenever possible, when children have been placed in out-of-home care; provide permanent legally assured homes for children who cannot return home; and provide services for children adjudicated dependent in section 6341 of the Juvenile Act (relating to adjudication).
General protective services are defined as ''services to prevent the potential for harm to a child.'' A definition of ''potential for harm'' was added for clarity. It is defined as: ''likely, if permitted to continue, to have a detrimental effect on the child's health, development or functioning.'' The term does not include imminent risk as defined in the definition of ''child abuse'' in § 3490.4.
This subchapter requires county agencies to receive and assess reports of children alleged to be in need of general protective services. The subchapter establishes those services that county agencies shall have available for children in need of general protective services and their families both during and after the assessment. It establishes recordkeeping procedures and procedures for notifying persons named in reports alleging the need for general protective services. It provides procedures for persons to appeal the decision of the agency to provide services to the child and family. Previously, county agencies provided general protective services under Chapter 3480. This rulemaking rescinds Chapter 3480.
m. Sections 3490.311--3490.314 (relating to staff orientation, training and certification requirements) adopt the requirement of the CPSL that the Department establish a training and certification program for county agency staff who provide direct services. County staff who had regular employment status on June 30, 1996, were grandfathered in and not required to complete any of the required training courses. Staff hired on or after July 1, 1996, are required to complete 120 hours of CORE training and be recommended by the person's supervisor for certification. Staff who are not certified as direct service workers may not provide protective services. The regulations also require annual training for direct service workers. The certification requirements will ensure that all direct service workers have met minimum training requirements and have been approved by the county agency as certified direct service workers.
Section 3490.314 (relating to training and certification requirements for supervisors who supervise direct service workers) requires persons who supervise direct service workers to complete a supervisory training program which is approved by the Department in consultation with a steering committee composed of State and county staff.
n. Sections 3490.321 and 3490.322, Subchapter D (relating to risk assessment) adopt the CPSL requirement that the Department and the county agencies establish a State-approved risk assessment process to aid in determining the amount of risk to a child if the child remains in the child's own home or is returned home from placement. The county agencies began using a single State-approved risk assessment process on July 1, 1997.
o. Section 3490.361 (relating to requirement for agencies providing protective services) was added by the Department to require private agencies providing protective services arranged by the county agency to comply with §§ 3130.21(4), 3130.39 and 3130.40 (relating to responsibilities of county executive officers; services and facilities which may be used; and delivery of services through other service providers) to assure that children covered by the CPSL and this chapter receive services provided by agencies and facilities licensed by the Department.
p. Section 3490.362 (relating to licensure requirements for persons providing services arranged or provided by the county agency) requires professional persons providing services to abused and neglected children to have a valid license issued by the Department of State when their profession is subject to mandatory licensure.
q. Section 3490.401 (relating to intercounty transfer of cases) contains requirements relating to the transfer of information from one county to another county when the child or parents move to another county and the case is being investigated for suspected child abuse, being assessed for general protective services or was previously accepted by a county agency for protective services.
Affected Individuals and Organizations
The amendments will affect children and youth and their families, as well as, public and private children and youth agencies, law enforcement officials, school employes and persons whose employment, occupation or practice of their profession bring them into direct contact with children, and persons seeking employment in a child-care service.
Accomplishments/Benefits
All children deserve to grow up in safe, nurturing homes. Sadly, many are victims of child abuse and neglect. It is a problem that has devastating effects on children and families in this Commonwealth. While substantial progress has been made in addressing this problem, the Department continues to look for ways to improve the program. This rulemaking has addressed issues and remedies identified by the Legislature, the Department, county agencies and other practitioners in implementing the CPSL since its enactment on November 26, 1975, and amendments enacted December 16, 1994.
The Department has found that the development of a quality children and youth work force is critical to the child protection program in this Commonwealth. This rulemaking addresses that issue. As required by the CPSL, this rulemaking provides for initial and ongoing training and certification of all county personnel providing protective services for children. Persons who are not certified may not perform these functions.
Additionally, caseworkers need adequate and appropriate tools to do the job. As required by the CPSL, this rulemaking has established requirements for the Statewide implementation of a State-approved risk assessment process. This process shall be used in every investigation or assessment made by county protective service workers and at least every 6 months thereafter. Assessments are also required when a child is being returned home and within 30 days prior to closing the case.
The risk assessment process is not a substitute for education, experience, training, supervision or good judgment. It is an important tool that assures uniform application of validated criteria as an aid in decision making. Likewise, it shall be used to inform agency planning when children may be at risk of further abuse. To this end, these final rules have established a requirement that case plans for children in need of protective services reflect the level of risk determined by the county agency for each case. Supervisory oversight of this requirement has been established by these final rules.
An effective child protection program provides for frequent contact with children who are at high risk of abuse by caseworkers assigned responsibility for these cases. Recent inquiries into tragic child deaths in this Commonwealth by the General Assembly and the Department have documented the need for this contact. To that end, this rulemaking has established a requirement that children be seen as often as necessary for their protection but at least once a week as long as they remain at high risk of abuse. The Department contends this requirement will further assure the safety of children in this Commonwealth. It is also an existing practice by many counties. These contacts may be made by county agency caseworkers or by persons under contract with county agencies.
The Commonwealth child protection program cannot assure that children will always be safe, but it must be vigilant in protecting children from repeated abuse. In response to comments received, this rulemaking has raised the threshold of intervention for repeated cases of child abuse by requiring multidisciplinary team reviews if a child has been the victim of one substantiated incident of child abuse and the receipt of a subsequent report of suspected child abuse rather than the prior requirement of three these reports. This requirement affirms that child protection is not just a function of county agencies but shall be addressed by the broader community.
The CPSL provides for the sharing of case information among county agencies. This rulemaking has further implemented this provision of the CPSL by requiring information sharing and cooperation between counties. The need for information sharing and cooperation between counties arises when families with children in need of protection move across county lines, sometimes to avoid detection. In other instances, the subjects of reports may reside in multiple counties and cooperation is needed to complete investigations/assessments. This rulemaking has provided procedures for counties to follow when families move from one county to another, whether or not a specific new address of the family is known. These final rules also require accommodation by all counties of requests by those counties assigned responsibility for completion of investigations of reports of suspected child abuse or assessments of the need for general protective services. Cooperation across county lines is critical to the protection of children and cannot be simply left to negotiation between counties.
The amendments to the CPSL, by Act 151 for the first time, established a program of general protective services in State law. The CPSL requires that the Department define ''general protective services'' by regulation. The Department's proposed definition of ''general protective services'' includes activities and services arranged or provided, or both, for neglected children. This rulemaking has been revised to clarify the definition of ''general protective services'' to be consistent with the broad purpose of the CPSL to protect the rights, welfare and safety of children so that they have the opportunity for healthy growth and development and to assist parents in recognizing and remedying conditions harmful to their child and in fulfilling their parental duties in a manner that does not put the child at risk. This clarification is a recognition that children may be at risk, not only as a result of the acts or failure to act of their parents, but also because of their own behavior. The definition of general protective services is clarified to acknowledge conditions leading to dependency as defined by the Juvenile Act. Alleviation of these conditions is included as necessary to provide essential care for children and assist parents with issues involving truancy and ungovernability. County agency assistance may be required to correct these conditions before seeking an adjudication of dependency.
General protective services are critical in preventing cases from escalating to serious child abuse, dependency or delinquency. Success with these services results in less intrusive and less costly services.
The Department has incorporated other important revisions directly from the CPSL into this rulemaking. These revisions are already a matter of public policy and the Department has added them to establish context and continuity in this rulemaking. These provisions included expanding the definition of ''child abuse'' to include imminent risk of abuse; requirements relating to abuse of students in schools; and requirements relating to the reporting of suspected child abuse.
Public Comments
Written comments, suggestions and objections were solicited within a 30-day period after the publication date.
Discussion of Comments
Major Comments
§ 3490.43. Issuance of bulletins.
Comment: Seven commentators, including the Independent Regulatory Review Commission (IRRC), requested clarification related to the issuance of bulletins for the dissemination of practice standards; several inquired if implementation of these standards would be mandatory and binding. Requests were made for inclusion of the standards in regulation and the need for advance notification with the opportunity for public comment. Several commentators stated that these standards should not be implemented as a result of performance audits in specific counties but across this Commonwealth.
Response: The Department deleted the section referencing issuance of bulletins. The Department has the authority to issue statements of policy to communicate policy, including the interpretation of regulation, through the issuance of bulletins in accordance with § 9.12 (relating to statements of policy). The Department, in conjunction with the Pennsylvania children and youth administrators, is developing practice standards to strengthen the child welfare system throughout this Commonwealth. These standards will be made available to county agencies to improve the quality of services to children and families and exceed the requirements of these regulations. The Department will incorporate these practice standards in the training program. The Department expects the development of these standards to be completed by July 1999. Statewide distribution and training would begin with implementation in the year 2000.
Section 6343(b) of the CPSL (relating to investigating performance of county agency) grants the Secretary or a designee the power to direct a performance audit of any activity engaged in under the CPSL. Specific action necessary to correct a condition identified as a result of a finding in a performance audit will be shared with the county agency to fulfill the Department's and the county agency's duties under the legal base at § 3490.3 (relating to legal base). The Department will assure compliance with any recommendations made to the county agency which will improve child safety and protection.
§ 3490.61. Supervisory review and child contacts.
Comment: Six commentators, including IRRC, raised concern related to the fiscal impact associated with weekly contact with children who are deemed at high risk of abuse. Several requested clarification specifying who is required to make these contacts. Commentators also raised concern related to caseload size and the inability to meet these increased demands. Several commentators requested statistics on the number of high-risk children identified within this Commonwealth.
Response: The Department reviewed the comments and amended the section to provide clarification that the county agency will assure that the child is seen either directly by the worker or through a purchase of service. Children who are at high risk of abuse or neglect must be seen once a week to assure the safety of the child and that the level of services provided to children and families should be consistent with the level of risk to the child. This section could result in some increased fiscal demands for those county agencies where this is not a current practice. The county agency is required to see the child no less than every 180-days to fulfill its case management responsibilities. Child safety is paramount. County agencies through the needs-based budget process may request additional resources for the implementation of this section. The cost to implement this section will be based on the existing level of service already being provided to high-risk children. It is expected that some county agencies are already attempting to meet this standard.
The number of high-risk children throughout this Commonwealth would be difficult to project given that the current nature of these reports and the number of children changes frequently.
§ 3490.223. Definitions.
Comment: Seven commentators, including IRRC, raised concern related to the definition of ''general protective services'' as the focus was limited to neglect. Several commentators requested the inclusion of services to children who are truant and ungovernable as defined by the Juvenile Act. One commentator requested clarification of the difference between the definition of neglect as defined in general protective services and neglect as defined relating to child abuse.
Response: The Department reviewed the comments and considered the need for a definition of ''general protective services'' which clarifies the broad purposes of the subchapter. There are two purposes in § 3490.222 (relating to purpose): to protect the rights, welfare and safety of children so that they have an opportunity for healthy growth and development; and to assist parents in recognizing and remedying conditions harmful to their child and in fulfilling their parental duties in a manner that does not put the child at risk. To effect these purposes, the Department made changes to acknowledge that without intervention these conditions could lead to dependency as defined by the Juvenile Act. Conditions, including truancy and ungovernability, should be assessed and if identified would make a child eligible for general protective services. The correction of these conditions is necessary to provide essential care for children and to assist parents.
The addition of a definition of ''potential for harm'' clarifies the definition of ''general protective services,'' requiring that general protective services are needed because without this intervention, a detrimental effect on the child's health, development or functioning is likely. Provision of general protective services will also prevent cases from escalating to reports of child abuse.
§ 3490.401. Intercounty transfer of cases.
Comment: Four commentators, including IRRC, recommended the inclusion of regulatory language which provides detailed requirements when a family moves to another county and there is no specific address for the family. Commentators raised concern that the section as proposed did not adequately protect children.
Response: The Department concluded that the additional requirements will aid in the protection of children. The Department included language which provides requirements for both the referring county and the receiving county when the family's address is unknown. The provision requires both the referring and receiving agency make attempts to locate the family. There must be contact with the agencies who may have knowledge of the family's location. The Department enumerated persons and entities who shall be contacted including schools, post offices, medical personnel, county assistance offices and persons who are known to have knowledge of the family. High-risk children shall be seen within 24 hours at their new residence to assess the current level of risk. The Department requires communication between county agencies and notification by the receiving county to the referring county of the attempts made to locate the family and the status of the investigation.
Discussion of comments:
Protective Services
Introduction § 3490.4. Definitions.
Comment: IRRC requested an explanation of the decision making process when accepting cases for service. Another commentator recommended the regulations include accept for service criteria.
Response: Child welfare in this Commonwealth is a county-administered system. The determination of service provision at the county level may not fall below State and Federal statutes and regulations. The definition of ''accept for service'' is the threshold that indicates when a county agency determines that involvement with a family is warranted based on the level of risk and the potential for harm to a child.
Comment: Commentators, including IRRC, requested clarification regarding the inclusion of the clinical nurse specialist (CNS) and the registered nurse in the definition of ''certified medical practitioner.''
Response: The Department amended the definition of ''certified medical practitioner'' to include a licensed physician's assistant and a certified registered nurse practitioner (CRNP), however, declined to include CNSs. This decision was based on the fact that CNSs are not certified by the Commonwealth. CRNPs are licensed as registered nurses and certified by the State Board of Nursing under the regulations jointly promulgated by the State Boards of Nursing and Medicine.
Comment: Several commentators raised concern regarding the deletion of the definitions of ''organized church'' or ''religious denomination'' in the definition of ''child abuse.'' Persons may not be deemed as perpetrators of child abuse if they have withheld medical or surgical care as a result of religious beliefs consistent with a bona fide religion. One commentator failed to recognize the deletion of the definitions of ''recognized church'' or ''religious denomination'' and commended the Department for including the clarification.
Response: The Department deleted the definitions of ''recognized church'' or ''religious denomination'' as recognized for tax purposes by the United States Internal Revenue Service because there are a number of groups who are otherwise bona fide whose religious doctrine precludes them from obtaining Internal Revenue Service certification. The Department did not further clarify the definition of ''bona fide religion'' so as not to exclude any form of recognized religion. Religious beliefs are potentially so very diverse as to preclude necessary and sufficient criteria.
Comment: One commentator viewed the definition of ''ChildLine'' as a clerical function with the purpose of receiving and maintaining reports and questioned the authority of ChildLine workers to assign reports if the county agency does not feel that the allegations meet the definition for a child protective services investigation.
Response: The Department made no functional changes to the definition of ''ChildLine.'' In the proposed rulemaking, the definition of ''ChildLine'' was modified to include receipt of reports of student abuse.
Comment: One commentator raised concern related to the reference of the Department supervising the county agency. The commentator suggested that the word ''supervised'' be changed to ''monitored'' in the definition of ''county agency.''
Response: The Department adopted the statutory definition of ''county agency.''
Comment: IRRC suggested the Department use the statutory definition of ''deviate sexual intercourse'' as the current regulatory definition differs from the statute.
Response: The Department adopted the statutory definition of ''deviate sexual intercourse.''
Comment: IRRC raised concern regarding the difference between the regulatory and statutory definition of ''forcible compulsion.''
Response: The Department deleted the definition of ''forcible compulsion'' from the section because the term is no longer used in the chapter.
Comment: IRRC raised concern that the definition of a ''founded report'' differed from the statutory definition.
Response: The Department adopted the statutory definition of ''founded report.''
Comment: IRRC noted that the definition of ''indicated report'' differs from the statutory definition.
Response: The Department adopted the statutory definition of ''indicated report.''
Comment: Two commentators, including IRRC, raised concern regarding the definition of ''individual residing in the same home as the child.'' IRRC commented the definition deviates from the statute while the second commentator requested time frames be provided to define ''residency.''
Response: The Department adopted the statutory definition of ''individual residing in the same household as the child.''
Comment: One commentator expected further clarification of the definition of ''imminent risk'' and was concerned about the lack of regulation when other areas appear strictly regulated.
Response: The Department considered the comment but did not change the definition. The Department provides training to county agency workers through the certification of direct service workers. The Department intends to reconvene a task force to address issues related to imminent risk and will provide further guidance through the training program.
Comment: IRRC advised that the definition of ''person responsible for a child's welfare'' differs from the statutory definition.
Response: The Department adopted the statutory definition of ''person responsible for a child's welfare.''
Comment: IRRC commented that the definition of ''protective services'' differs from the statutory definition.
Response: The Department adopted the statutory definition of ''protective services.''
Comment: IRRC advised that the definition of ''required reporter'' differs from the statutory definition. One commentator offered to aid the Department by informing those required reporters in their department of the change from reasonable cause to believe to reasonable cause to suspect that a child has been abused.
Response: The Department added optometrist to the list of those persons required to report as this was inadvertently deleted from the section. The Department added psychologist to the enumeration of those required to report abuse as a clarification of mental health professional. Psychologists frequently conduct evaluations of children and parents which are used by the county agency in determining the need for services and the most appropriate modality for treatment.
Comment: IRRC commented that the definition of ''serious mental injury'' differs from the statutory definition. Another commentator further suggested that CNSs be given the ability to diagnose serious mental injury rather than limiting it to a physician or licensed psychologist.
Response: The Department adopted the statutory definition of ''serious mental injury.'' The Department cannot include CNSs as the statute limits those authorized to determine serious mental injury to physicians and licensed psychologists.
Comment: IRRC commented that the definition of ''serious physical injury'' deviates from the statutory definition.
Response: The Department adopted the statutory definition of ''serious physical injury.''
Comment: IRRC supported the use of the statutory definition of ''sexual abuse'' as the regulatory definition deviates from the statutory definition. One commentator suggested that language be added to clarify that acts by the perpetrator that are committed for the purpose of sexual gratification should include those that cannot be reasonably explained except for the purpose of sexual gratification. This would aid in the ability to substantiate reports as sexual gratification can be difficult to prove.
Response: The Department adopted the definitions from 18 Pa.C.S. (relating to Crimes Code) when applicable. In addition, the Department clarified the terms ''sexual abuse'' and ''exploitation.''
Comment: IRRC advised that the term ''sexual exploitation'' is used in the chapter; however, it is not defined. It recommended the use of the statutory definition and that the term be used consistently in the chapter.
Response: The Department deleted references to sexual exploitation except from the definition of ''child abuse.'' The term ''exploitation'' is included under the definition of ''sexual abuse.''
Comment: One commentator requested that a definition of ''student'' be added so that persons are able to differentiate between student abuse and child abuse throughout the chapter.
Response: The Department defined ''student'' in § 3490.143 (relating to definitions). This subchapter specifically pertains to student abuse. The definition of ''student'' was, therefore, not included in Subchapter A which specifically relates to child protective services.
Comment: IRRC suggested the Department use the statutory definition of ''subject of the report.''
Response: The Department adopted the statutory definition of ''subject of the report.''
Comment: One commentator suggested that the term ''substantial evidence'' be changed as it may be confusing and recommended conformance to case law. It recommended the definition be changed to ''evidence which so preponderates in favor of a conclusion that it outweighs in the mind of a fact finder any inconsistent evidence and reasonable inference drawn.'' The commentator cited Mortimore v. Pennsylvania Department of Public Welfare, 697 A.2d 1031 (1993).
Response: The Department adopted the statutory definition of ''substantial evidence.'' The decision in Mortimore v. Pennsylvania Department of Public Welfare, 697 A.2d 1031 (1993), predates amendments to section 6303 of the CPSL (relating to definitions).
Comment: IRRC commented that the definition of ''unfounded report'' differs from the statutory definition and recommended conforming to the statutory definition.
Response: The Department adopted the statutory definition of ''unfounded report.''
§ 3490.5. Waivers.
Comment: Subsection (a). IRRC noted that the language in this subsection is vague in that it does not provide guidance on the content of petitions, time frame for action, or where waiver requests are to be submitted. They recommended that specific provisions be included.
Response: The Department issued procedures for county agency waiver requests and will not include the specific procedural requirements in the regulation. These procedures are periodically subject to revision and are similar to other promulgated children and youth regulations.
Comment: Subsection (b)(4). IRRC concurred with one commentator who advised that the proposed rulemaking appears to allow the Department to authorize a violation of Federal statute or regulation or a State statute. They recommended that the language be amended to clearly state that the provision does not allow violation of either Federal or State statute or regulation.
Response: The Department did not intend to imply the Secretary could authorize violation of Federal statute or regulation or State statute. The Department made the recommended language change which does not allow granting waivers that violate or condone noncompliance with Federal statute or regulations or State statute.
Comment: Subsections (b)(2) and (3) and (d) use the term ''agency.'' IRRC recommended using the term ''county agency'' to be consistent with the definitions.
Response: The Department adopted the term ''county agency'' throughout the regulation.
Reporters § 3490.11. Reporting suspected child abuse.
Comment: One commentator suggested that clarification be provided in this section to include language that persons, other than school employes, who suspect student abuse shall report the suspected student abuse to the school administrator as defined in § 3490.143.
Response: The Department included language that persons other than school employes, including independent contractors, who have reasonable cause to suspect student abuse shall report the suspected student abuse to the school administrator as required in §§ 3490.151(c) and 3490.152(a) and (b) (relating to required reporting; and responsibilities of administrators and school employes). The administrator does not have the authority to screen reports of suspected student abuse and shall immediately report the alleged student abuse to law enforcement officials and the appropriate district attorney as required by section 6352(a)(2) of the CPSL (relating to school employes).
§ 3490.13. Reports by employes who are required reporters.
Comment: Subsections (a) and (b). IRRC raised concern about the interim step for required reporters who are employed in an institution, school, facility or agency which requires notification to their superior of suspected abuse. The superior then notifies ChildLine. Section 6313 of the CPSL (relating to reporting procedure) does not require a mandated reporter to notify their superior; however, section 6352 of the CPSL does require school employes to notify the administrator regarding suspected student abuse. Confusion could result for required reporters who do not come under the definition of ''school employe'' under the statute. IRRC recommended that clarification be provided to clarify who shall report to an administrator. There was further concern noted that it would appear that two calls to ChildLine are required for one incident of suspected child abuse as § 3490.12 (relating to required reporters) requires the required reporter to call ChildLine.
Response: The Department added language to clarify that two calls to ChildLine are not mandatory. Section 6311(c) of the CPSL (relating to persons required to report suspected child abuse) requires staff of institutions, school, facilities or agencies to report cases of suspected child abuse to the person in charge. Two calls to report suspected child abuse may result if the reporter first provides the report to the county agency because required reporters are mandated to report to ChildLine. The requirements for reporting suspected student abuse to the administrator are provided in Subchapter B.
§ 3490.14. Privileged communication.
Comment: IRRC and one commentator noted that the exception to required reporters relating to confidential communications to members of the clergy was not included in the chapter. Additionally, IRRC suggested that the term ''professional person'' be changed to ''required reporter.''
Response: The Department made the necessary change to the regulation which provides exemption of reporting confidential communications made to ordained members of the clergy. The Department changed the phrase ''professional person required to report'' to ''required reporter.'' The CPSL does not define ''professional person.'' Persons who are not considered a professional person may be under confidentiality requirements, however are still required reporters as defined by section 6311 of the CPSL.
§ 3490.15. Taking a child into protective custody.
Comment: Subsection (a)(2). IRRC commented that the provision allowing a person designated specifically in writing by the director of a hospital or medical facility to take protective custody of a child to protect the child was omitted from regulation. Another commentator requested the inclusion of a certified clinical practitioner as a person authorized to take protective custody of a child.
Response: The Department amended the chapter to include the person designated by the director as a person authorized to take protective custody of a child. Certified clinical practitioners cannot be added to those enumerated as having the authority to take protective custody of a child. Section 6315 of the CPSL (relating to taking child into protective custody) does not include certified clinical practitioners as having the authority to take protective custody of a child unless designated by the director of the hospital or medical facility as having this authority.
§ 3490.17. Notifying the child's parents, guardians or other custodians.
Comment: Two commentators requested the ability to withhold the child's whereabouts from parents, guardians or other custodians absent a court order when providing this information would present a danger to the child or substitute caretaker.
Response: The Department considered the comment but did not change the section. This section relates to persons who take a child into protective custody and their need to notify the parent, guardian or other custodian of the child's whereabouts within 24 hours. The county agency does not have statutory authority to take protective custody of a child absent a court order and therefore would be excluded from this section. The county agency is required in section 6315(f) of the CPSL to convene a conference with the parent, guardian or other custodian of the child within 48 hours and provide information explaining the reasons for detention, as well as the child's whereabouts at that time. The county agency would need to include the request for withholding the child's whereabouts in an emergency placement petition to the court with the supporting rationale for withholding this information.
§ 3490.21. Release of information on prior abuse reports.
Comment: A commentator recommended expanding the enumeration of persons who may request information from the county agency on prior abuse involving the child being examined to include practitioners other than physicians.
Response: The Department amended the enumeration of persons who are authorized to request prior abuse information to include the person designated by the director of a hospital or medical facility. The Department cannot enlarge the statutory list. Information may be provided to these practitioners if they have been so designated by the director.
Departmental Responsibilities § 3490.31. Receipt of reports.
Comment: IRRC and another commentator questioned the Department's authority to refuse reports when persons are 18 years of age or older. The CPSL does not place a time limit on reports of serious mental injury, sexual abuse or serious physical neglect as long as the incidents occurred when the person was under the age of 18. IRRC further recommended the language be changed to indicate that the Department already has established a Statewide toll-free number.
Response: The Department reviewed the comments and deleted the last sentence which would limit referrals to investigation of reports of suspected child abuse when the child was less than 18 years of age at the time of the report. The Department will implement the practice of receiving reports for incidents occurring when the child victim was 17 years of age or younger which are reported until the age of 20. This provision is consistent with statutory language mandating the investigation of recent acts for physical abuse and imminent risk. ''Recent act'' is defined in section 6303 of the CPSL as an act or omission that occurred within 2 years of the date of the report to the Department or the county agency. The Department will accept reports of sexual abuse, serious physical neglect and serious mental injury until the victim is age 20 without regard to the term ''recent'' as it is not found in section 6303(b) of the CPSL. The Department will refer persons over the age of 20 alleging child abuse to law enforcement officials. In making this decision, the Department relied on the purpose of section 6302(b) of the CPSL (relating to findings and purpose of chapter), which is designed to protect children, rehabilitate to ensure the child's well-being and to preserve, stabilize and protect the integrity of family life, whenever appropriate. The Department corrected the verb tense regarding the establishment of a Statewide toll-free number.
§ 3490.32. ChildLine reporting to the county agency.
Comment: IRRC and another commentator raised concern regarding the lack of guidance to county agencies when they are unable to agree upon who is responsible for cases of suspected child abuse. The lack of time frames for coordination while trying to meet the mandated time frames of seeing the child and completing the investigation may jeopardize child safety. As proposed, when county agencies are unable to agree who is responsible for the case, the regional office would resolve the difference. A commentator suggested that ChildLine make the determination of county agency responsibility. Another commentator requested the option of having responsibility for a report within their county when multiple counties are involved rather than just the county where the most recent suspected abuse occurred.
Response: The Department recognized the need for clarity regarding the involvement of numerous county agencies and included language to assure that investigations are completed within the time frames mandated at section 6368 of the CPSL (relating to investigation of reports). The Department accepted the suggestion that ChildLine determine the county agency responsible for investigation of reports when county agencies are unable to agree. ChildLine will continue to assign reports to multiple counties when there is more than one location of abuse if requested by a county agency. The county where the most recent incident occurred will have primary responsibility for investigation of the report.
The Department included language in § 3490.55(j) (relating to investigation of reports of suspected child abuse) which requires county agency cooperation to complete child abuse investigations. When the child and family are in a county other than the county responsible for the investigation of the report, the county where the subjects are located shall perform the duties of the investigation if requested by the county responsible for the investigation. If a county agency seeks assistance from another county agency to complete an investigation, the agency shall assist as required by § 3490.55. This process is consistent with section 6334(a) of the CPSL (relating to disposition of complaints received) which requires cooperation.
§ 3490.33. Files.
Comment: A commentator requested that the Department clarify whether statistics in the annual Child Abuse Report include unfounded reports. The commentator also inquired if unfounded reports are reviewed during licensing inspections for the purpose of determining the reason the report was unfounded. The commentator advised that the question arises as a result of the difference in the rate of substantiation among county agencies.
Response: The annual Child Abuse Report prepared by the Department includes information relating to the number of unfounded reports received. However, a majority of the focus is on the substantiation of reports. The Department does review the decisions of the county agency in unfounded reports during the annual licensing inspection. The review is limited to those unfounded reports on file that are awaiting expunction.
§ 3490.33. Files; 3490.34. Pending complaint file; 3490.35. Statewide Central Register.
Comment: IRRC commented that these three sections discuss the same files; however, the discussion is broken into separate sections. This requires the reader to view two sections to understand the content of and procedures for pending complaint files and for the Statewide Central Register. IRRC recommended that the Department consider consolidation of these sections.
Response: The Department maintained the three separate sections to provide clarification of the purpose of each file. The files of the Department are subject to mandatory audit by the Attorney General to ensure these files are maintained appropriately and therefore a clear definition of each file is necessary.
§ 3490.35. Statewide Central Register.
Comment: IRRC and another commentator requested clarification of the reference to ChildLine entry of reports ''if there is sufficient documentation to justify entry into the Statewide Central Register.'' Commentators were concerned that ChildLine would determine that reports would not be entered into the register if the Department determines that there is insufficient information.
Response: The Department reviewed the comments and amended the regulation to clarify the need for complete information in the Statewide Central Register. It is not the intent of the Department to change the determination of the county agency but to ensure the entry of complete information.
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