[26 Pa.B. 5270]
[Continued from previous Web Page] Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Occupational Therapy Education and Licensure--Child Abuse Reporting Requirements; Doc. No. 16A-671
Order On February 28, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Occupational Therapy Education and Licensure (Board). This rulemaking would amend 49 Pa. Code Chapter 42 by adding §§ 42.41--42.47. The authority for this regulation is section 6383(b)(2) of the Child Protective Services Law (CPSL) (23 Pa.C.S. § 6383(b)(2)) and section 5(b) of the Occupational Therapy Practice Act (63 P. S. § 1505(b)). The proposed regulation was published in the March 9, 1996 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 24, 1996.
This regulation implements a mandate established by Act 151 of 1994. Act 151 was a comprehensive set of amendments to the CPSL. As amended by Act 151, the CPSL gave new responsibilities to the Department of State. It directed each licensing board with jurisdiction over professional licensees identified as mandated reporters by the CPSL to promulgate regulations on the responsibilities of mandated reporters.
The provisions of this regulation closely match the statutory requirements of the CPSL. It incorporates the statutory definitions for ''child abuse,'' ''perpetrator,'' ''person responsible for the child's welfare,'' ''serious mental injury,'' ''serious physical injury,'' and ''sexual abuse or exploitation.'' Under this regulation, licensees are required to make a report if, based on their professional training or experience, they suspect that a child coming before them in their professional or official capacity is an abused child. Reports of suspected child abuse must be made immediately by telephone to ChildLine, a 24-hour a day toll free number established by the Department of Public Welfare (DPW) for receiving reports of suspected child abuse. The regulation requires that written reports be made to the DPW within 48 hours after the oral report.
Licensees who participate in good faith in any of the following activities have immunity from civil and criminal liability: making a report; cooperating with an investigation; testifying in a proceeding arising out of an instance of suspected child abuse; or taking photographs. Additionally, the Board will uphold the same good faith presumption in any disciplinary hearing resulting from participation in good faith in making a report. Reporting requirements take precedence over any other ethical principle or ethical standard. The regulation also contains provisions for disciplinary action by the Board. Criminal penalties, a summary offense for the first violation and a misdemeanor of the third degree for subsequent violations, are also contained in this section.
The Board claims that this regulation will have no fiscal impact on the Commonwealth or local governments. As mandated reporters, licensees may incur additional paperwork costs in complying with this regulation.
In its comments on the proposed rulemaking, the House Professional Licensure Committee (House Committee) recommended deletion of the definition of ''abused child'' from the regulation. The following individuals and organizations also submitted comments on the proposed regulation:
Representative Kevin Blaum
Senator Michael O'Pake
JoAnn Lawer, DPW Deputy Secretary for Children, Youth and Families
Hospital Association of Pennsylvania
Pennsylvania Medical Society
Patrick J. Clair, an attorney with Goehring, Rutter and BoehmThe Senate Consumer Protection and Professional Licensure Committee approved the final-form version of this regulation on September 25, 1996. The House Committee approved the final-form regulation on October 1, 1996. In addition, we received comments supporting the final-form regulation from Representative Blaum, Senator O'Pake and DPW Deputy Secretary Lawer.
We have reviewed this regulation and find it to be in the public interest. The Board made significant changes to the final-form regulation. It deleted the definition of ''abused child'' as recommended by Representative Blaum, Senator O'Pake, the House Committee, and our Commission. Also, revisions were made to the definition of ''sexual abuse or exploitation'' to make it consistent with the statutory definition revisions made in 1995. To fully accomplish this task, the Board had to withdraw the initial final-form version of this regulation which was submitted on September 13, 1996. The Board submitted a second final-form version of this regulation on September 24, 1996, with revisions to its definition of ''sexual abuse or exploitation'' that added offenses listed in the statutory definition. The Commission's recommendation to restructure the section pertaining to time frames for filing oral and written reports was adopted. A number of other technical changes recommended by the Commission were made to the final-form rulemaking as well.
Although the Board made a number of improvements in the regulation, there are two concerns it did not address. First, our Comments noted a serious gap in the regulation because it does not include the statutory reporting requirements imposed upon school employes who suspect that a child was abused by another school employe. Our comments stated the following:
As it is currently written, the proposed regulation creates the impression that it is not necessary to report child abuse committed by a school employe because they are specifically excluded from the definition of ''perpetrator.'' The CPSL's definition of ''child abuse'' requires that the abuse be committed by a ''perpetrator.''The Board has a statutory obligation to address reporting requirements that will apply to any of its licensees who are or may become school employes. The CPSL's definition of a school employe is inclusive and reads:
An individual employed by a public or private school, intermediate unit or area vocational-technical school. The term includes an independent contractor and employes. The term excludes an individual who has no direct contact with students.Given the substantive differences between the reporting requirements for school employes and other perpetrators in the CPSL, our Comments suggested that it would be unwise for the Board to amend this rulemaking by adding new provisions concerning reporting requirements for school employes. We recommended that the Board pursue implementation of these other reporting requirements through a future rulemaking. However, as an interim measure, our Comments recommended that the Board inform its licensees of the reporting requirements for school employes through educational programs and materials. Our recommendations on this issue received support from DPW Deputy Secretary Lawer.
The Board appears to agree that there is a need for another rulemaking. However, the Board's response to this issue provides no indication of when and how it will implement a new rulemaking nor any indication of whether it plans any interim educational programs to inform its licensees of the statutory requirement to report abuse by school employes.
We recommend that the Board work expeditiously to develop and publish a proposed rulemaking on the reporting requirements for school employes. In the interim, we request that the Board pursue an aggressive education program to insure that its licensees are aware of the statutory reporting requirements for school employes. This is especially important given the substantive differences between the reporting requirements for school employes and the requirements set forth in this regulation. Although we commend the Board for its efforts in responding to mandates imposed by the CPSL, its job is not yet complete. The Board needs to advise the House and Senate Committees and this Commission on its specific plans and timetable for publishing a proposed rulemaking on the school employes reporting requirements and implementing educational programs on the unique requirements for licensees who are or may be school employes.
The Board also elected not to adopt our suggestion concerning the definition of ''child abuse'' contained in the regulation. The definition in the Board's regulation contains no reference to or language from section 6303(b)(2) of the CPSL which states:
No child shall be deemed to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child's welfare, such as inadequate housing, furnishings, income, clothing and medical care.As we stated in our Comments, the absence of this exception from the regulation is inconsistent with the CPSL. Furthermore, there are concerns that the omission of this statutory exception may enlarge the scope of what constitutes ''child abuse.''
The Commission is mandated by the Regulatory Review Act to consider whether a regulation is consistent with the language of its enabling statute. Although in most cases we support the inclusion of the full statutory definition of a term, we find the position advocated by Representative Blaum, Senator O'Pake and DPW Deputy Secretary Lawer to be persuasive concerning this regulation. Licensees should be encouraged to file reports of suspected abuse, and this regulation will further that end. Nothing in the regulation will limit a practitioner's ability to use their professional judgment as provided for by the CPSL. When there is a reasonable suspicion of abuse, this regulation will reinforce a licensee's obligation to report.
Therefore, It Is Ordered That:
1. Regulation No. 16A-671 from the State Board of Occupational Therapy Education and Licensure, as submitted to the Commission on September 24, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Examiners in Speech-Language and Hearing--Child Abuse Reporting Requirements; Doc. No. 16A-682
Order On February 28, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Examiners in Speech-Language and Hearing (Board). This rulemaking would amend 49 Pa. Code Chapter 45 by adding §§ 45.401--45.407. The authority for this regulation is section 6383(b)(2) of the Child Protective Services Law (CPSL) (23 Pa. C.S. § 6383(b)(2)) and section 5(2) of the Speech-Language and Hearing Licensure Act (63 P. S. § 1705(2)). The proposed regulation was published in the March 9, 1996 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 24, 1996.
This regulation implements a mandate established by Act 151 of 1994. Act 151 was a comprehensive set of amendments to the CPSL. As amended by Act 151, the CPSL gave new responsibilities to the Department of State. It directed each licensing board with jurisdiction over professional licensees identified as mandated reporters by the CPSL to promulgate regulations on the responsibilities of mandated reporters.
The provisions of this regulation closely match the statutory requirements of the CPSL. It incorporates the statutory definitions for ''child abuse,'' ''perpetrator,'' ''person responsible for the child's welfare,'' ''serious mental injury,'' ''serious physical injury,'' and ''sexual abuse or exploitation.'' Under this regulation, licensees are required to make a report if, based on their professional training or experience, they suspect that a child coming before them in their professional or official capacity is an abused child. Reports of suspected child abuse must be made immediately by telephone to ChildLine, a 24-hour a day toll free number established by the Department of Public Welfare (DPW) for receiving reports of suspected child abuse. The regulation requires that written reports be made to the DPW within 48 hours after the oral report.
Licensees who participate in good faith in any of the following activities have immunity from civil and criminal liability: making a report; cooperating with an investigation; testifying in a proceeding arising out of an instance of suspected child abuse; or taking photographs. Additionally, the Board will uphold the same good faith presumption in any disciplinary hearing resulting from participation in good faith in making a report. Reporting requirements take precedence over any other ethical principle or ethical standard. The regulation also contains provisions for disciplinary action by the Board. Criminal penalties, a summary offense for the first violation and a misdemeanor of the third degree for subsequent violations, are also contained in this section.
The Board claims that this regulation will have no fiscal impact on the Commonwealth or local governments. As mandated reporters, licensees may incur additional paperwork costs in complying with this regulation.
In its comments on the proposed rulemaking, the House Professional Licensure Committee (House Committee) recommended deletion of the definition of ''abused child'' from the regulation. The following individuals and organizations also submitted comments on the proposed regulation:
Representative Kevin Blaum
Senator Michael O'Pake
JoAnn Lawer, DPW Deputy Secretary for Children, Youth and Families
Hospital Association of Pennsylvania
Pennsylvania Medical Society
Patrick J. Clair, an attorney with Goehring, Rutter and BoehmThe Senate Consumer Protection and Professional Licensure Committee approved the final-form version of this regulation on September 25, 1996. The House Committee approved the final-form regulation on October 1, 1996. In addition, we received comments supporting the final-form regulation from Representative Blaum, Senator O'Pake and DPW Deputy Secretary Lawer.
We have reviewed this regulation and find it to be in the public interest. The Board made significant changes to the final-form regulation. It deleted the definition of ''abused child'' as recommended by Representative Blaum, Senator O'Pake, the House Committee, and our Commission. Also, revisions were made to the definition of ''sexual abuse or exploitation'' to make it consistent with the statutory definition revisions made in 1995. To fully accomplish this task, the Board had to withdraw the initial final-form version of this regulation which was submitted on September 13, 1996. The Board submitted a second final-form version of this regulation on September 24, 1996, with revisions to its definition of ''sexual abuse or exploitation'' that added offenses listed in the statutory definition. The Commission's recommendation to restructure the section pertaining to time frames for filing oral and written reports was adopted. A number of other technical changes recommended by the Commission were made to the final-form rulemaking as well.
Although the Board made a number of improvements in the regulation, there are two concerns it did not address. First, our Comments noted a serious gap in the regulation because it does not include the statutory reporting requirements imposed upon school employes who suspect that a child was abused by another school employe. Our comments stated the following:
As it is currently written, the proposed regulation creates the impression that it is not necessary to report child abuse committed by a school employe because they are specifically excluded from the definition of ''perpetrator.'' The CPSL's definition of ''child abuse'' requires that the abuse be committed by a ''perpetrator.''The Board has a statutory obligation to address reporting requirements that will apply to any of its licensees who are or may become school employes. The CPSL's definition of a school employe is inclusive and reads:
An individual employed by a public or private school, intermediate unit or area vocational-technical school. The term includes an independent contractor and employes. The term excludes an individual who has no direct contact with students.Given the substantive differences between the reporting requirements for school employes and other perpetrators in the CPSL, our Comments suggested that it would be unwise for the Board to amend this rulemaking by adding new provisions concerning reporting requirements for school employes. We recommended that the Board pursue implementation of these other reporting requirements through a future rulemaking. However, as an interim measure, our Comments recommended that the Board inform its licensees of the reporting requirements for school employes through educational programs and materials. Our recommendations on this issue received support from DPW Deputy Secretary Lawer.
The Board appears to agree that there is a need for another rulemaking. However, the Board's response to this issue provides no indication of when and how it will implement a new rulemaking nor any indication of whether it plans any interim educational programs to inform its licensees of the statutory requirement to report abuse by school employes.
We recommend that the Board work expeditiously to develop and publish a proposed rulemaking on the reporting requirements for school employes. In the interim, we request that the Board pursue an aggressive education program to insure that its licensees are aware of the statutory reporting requirements for school employes. This is especially important given the substantive differences between the reporting requirements for school employes and the requirements set forth in this regulation. Although we commend the Board for its efforts in responding to mandates imposed by the CPSL, its job is not yet complete. The Board needs to advise the House and Senate Committees and this Commission on its specific plans and timetable for publishing a proposed rulemaking on the school employes reporting requirements and implementing educational programs on the unique requirements for licensees who are or may be school employes.
The Board also elected not to adopt our suggestion concerning the definition of ''child abuse'' contained in the regulation. The definition in the Board's regulation contains no reference to or language from section 6303(b)(2) of the CPSL which states:
No child shall be deemed to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child's welfare, such as inadequate housing, furnishings, income, clothing and medical care.As we stated in our Comments, the absence of this exception from the regulation is inconsistent with the CPSL. Furthermore, there are concerns that the omission of this statutory exception may enlarge the scope of what constitutes ''child abuse.''
The Commission is mandated by the Regulatory Review Act to consider whether a regulation is consistent with the language of its enabling statute. Although in most cases we support the inclusion of the full statutory definition of a term, we find the position advocated by Representative Blaum, Senator O'Pake and DPW Deputy Secretary Lawer to be persuasive concerning this regulation. Licensees should be encouraged to file reports of suspected abuse, and this regulation will further that end. Nothing in the regulation will limit a practitioner's ability to use their professional judgment as provided for by the CPSL. When there is a reasonable suspicion of abuse, this regulation will reinforce a licensee's obligation to report.
Therefore, It Is Ordered That:
1. Regulation No. 16A-682 from the State Board of Examiners in Speech-Language and Hearing, as submitted to the Commission on September 24, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner; Irvin G. Zimmerman
Public meeting held
October 3, 1996State Board of Social Work Examiners--Child Abuse Reporting Requirements; Doc. No. 16A-691
Order On February 28, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Social Work Examiners (Board). This rulemaking would amend 49 Pa. Code Chapter 47 by adding §§ 47.51--47.57. The authority for this regulation is section 6383(b)(2) of the Child Protective Services Law (CPSL) (23 Pa.C.S. § 6383(b)(2)) and section 6(2) of the Social Workers' Practice Act (63 P. S. § 1906(2)). The proposed regulation was published in the March 9, 1996 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on September 24, 1996.
This regulation implements a mandate established by Act 151 of 1994. Act 151 was a comprehensive set of amendments to the CPSL. As amended by Act 151, the CPSL gave new responsibilities to the Department of State. It directed each licensing board with jurisdiction over professional licensees identified as mandated reporters by the CPSL to promulgate regulations on the responsibilities of mandated reporters.
The provisions of this regulation closely match the statutory requirements of the CPSL. It incorporates the statutory definitions for ''child abuse,'' ''perpetrator,'' ''person responsible for the child's welfare,'' ''serious mental injury,'' ''serious physical injury,'' and ''sexual abuse or exploitation.'' Under this regulation, licensees are required to make a report if, based on their professional training or experience, they suspect that a child coming before them in their professional or official capacity is an abused child. Reports of suspected child abuse must be made immediately by telephone to ChildLine, a 24-hour a day toll free number established by the Department of Public Welfare (DPW) for receiving reports of suspected child abuse. The regulation requires that written reports be made to the DPW within 48 hours after the oral report.
Licensees who participate in good faith in any of the following activities have immunity from civil and criminal liability: making a report; cooperating with an investigation; testifying in a proceeding arising out of an instance of suspected child abuse; or taking photographs. Additionally, the Board will uphold the same good faith presumption in any disciplinary hearing resulting from participation in good faith in making a report. Reporting requirements take precedence over any other ethical principle or ethical standard. The regulation also contains provisions for disciplinary action by the Board. Criminal penalties, a summary offense for the first violation and a misdemeanor of the third degree for subsequent violations, are also contained in this section.
The Board claims that this regulation will have no fiscal impact on the Commonwealth or local governments. As mandated reporters, licensees may incur additional paperwork costs in complying with this regulation.
In its comments on the proposed rulemaking, the House Professional Licensure Committee (House Committee) recommended deletion of the definition of ''abused child'' from the regulation. The following individuals and organizations also submitted comments on the proposed regulation:
Representative Keven Blaum
Senator Michael O'Pake
JoAnn Lawer, DPW Deputy Secretary for Children, Youth and Families
Hospital Association of Pennsylvania
Pennsylvania Medical Society
Patrick J. Clair, an attorney with Goehring, Rutter and BoehmThe State Consumer Protection and Professional Licensure Committee approved the final-form version of this regulation on September 25, 1996. The House Committee approved the final-form regulation on October 1, 1996. In addition, we received comments supporting the final-form regulation from Representative Blaum, Senator O'Pake and DPW Deputy Secretary Lawer.
We have reviewed this regulation and find it to be in the public interest. The Board made significant changes to the final-form regulation. It deleted the definition of ''abused child'' as recommended by Representative Blaum, Senator O'Pake, the House Committee, and our Commission. Also, revisions were made to the definition of ''sexual abuse or exploitation'' to make it consistent with the statutory definition revisions made in 1995. To fully accomplish this task, the Board had to withdraw the initial final-form version of this regulation which was submitted on September 13, 1996. The Board submitted a second final-form version of this regulation on September 24, 1996, with revisions to its definition of ''sexual abuse or exploitation'' that added offenses listed in the statutory definition. The Commission's recommendation to restructure the section pertaining to time frames for filing oral and written reports was adopted. The Board also accepted the recommendation from both DPW and this Commission concerning the proposed regulation's definition of ''serious mental injury.'' The Board revised this definition in the final-form regulation and it is now consistent with the CPSL's definition of ''serious mental injury.''
A number of other technical changes recommended by the Commission were made to the final-form rulemaking as well. In addition, this final-form regulation, which was originally submitted on September 13, 1996, was withdrawn by the Board and submitted on September 24, 1996, with revisions to the definition of ''sexual abuse or exploitation'' to add offenses and make the definition consistent with the statutory definition.
Although the Board made a number of improvements in the regulation, there are two concerns it did not address. First, our Comments noted a serious gap in the regulation because it does not include the statutory reporting requirements imposed upon school employes who suspect that a child was abused by another school employe. Our comments stated the following:
As it is currently written, the proposed regulation creates the impression that it is not necessary to report child abuse committed by a school employe because they are specifically excluded from the definition of ''perpetrator.'' The CPSL's definition of ''child abuse'' requires that the abuse be committed by a ''perpetrator.''The Board has a statutory obligation to address reporting requirements that will apply to any of its licensees who are or may become school employes. The CPSL's definition of a school employe is inclusive and reads:
An individual employed by a public or private school, intermediate unit or area vocational-technical school. The term includes an independent contractor and employes. The term excludes an individual who has no direct contact with students.Given the substantive differences between the reporting requirements for school employes and other prepetrators in the CPSL, our Comments suggested that it would be unwise for the Board to amend this rulemaking by adding new provisions concerning reporting requirements for school employes. We recommended that the Board pursue implementation of these other reporting requirements through a future rulemaking. However, as an interim measure, our Comments recommended that the Board inform its licensees of the reporting requirements for school employes through educational programs and materials. Our recommendations on this issue received support from DPW Deputy Secretary Lawer.
The Board appears to agree that there is a need for another rulemaking. However, the Board's response to this issue provides no indication of when and how it will implement a new rulemaking nor any indication of whether it plans any interim educational programs to inform its licensees of the statutory requirement to report abuse by school employes.
We recommend that the Board work expeditiously to develop and publish a proposed rulemaking on the reporting requirements for school employes. In the interim, we request that the Board pursue an aggressive education program to insure that its licensees are aware of the statutory reporting requirements for school employes. This is especially important given the substantive differences between the reporting requirements for school employes and the requirements set forth in this regulation. Although we commend the Board for its efforts in responding to mandates imposed by the CPSL, its job is not yet complete. The Board needs to advise the House and Senate Committees and this Commission on its specific plans and timetable for publishing a proposed rulemaking on the school employes reporting requirements and implementing educational programs on the unique requirements for licensees who are or may be school employes.
The Board also elected not to adopt our suggestion concerning the definition of ''child abuse'' contained in the regulation. The definition in the Board's regulation contains no reference to or language from section 6303(b)(2) of the CPSL which states:
No child shall be deemed to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child's welfare, such as inadequate housing, furnishings, income, clothing and medical care.As we stated in our Comments, the absence of this exception from the regulation is inconsistent with the CPSL. Furthermore, there are concerns that the omission of this statutory exception may enlarge the scope of what constitutes ''child abuse.''
The Commission is mandated by the Regulatory Review Act to consider whether a regulation is consistent with the language of its enabling statute. Although in most cases we support the inclusion of the full statutory definition of a term, we find the position advocated by Representative Blaum, Senator O'Pake and DPW Deputy Secretary Lawer to be persuasive concerning this regulation. Licensees should be encouraged to file reports of suspected abuse, and this regulation will further that end. Nothing in the regulation will limit a practitioner's ability to use their professional judgment as provided for by the CPSL. When there is a reasonable suspicion of abuse, this regulation will reinforce a licensee's obligation to report.
Therefore, It Is Ordered That:
1. Regulation No. 16A-691 from the State Board of Social Work Examiners, as submitted to the Commission on September 24, 1996, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
JOHN R. MCGINLEY, JR.,
Chairperson
[Pa.B. Doc. No. 96-1852. Filed for public inspection November 1, 1996, 9:00 a.m.]
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