[28 Pa.B. 1079]
[Continued from previous Web Page]
CHILD ABUSE BY AGENTS OF THE COUNTY AGENCY § 3490.81. Responsibilities of the Department and the county agency.
(a) When the suspected abuse has been committed by an agent of the county agency, the regional staff shall investigate the report under section [16(a)] 6362 of the CPSL (relating to responsibilities of county agency for child protective services) [(11 P. S. § 2216(a))] and this chapter. The regional staff may not do any of the following:
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CONFIDENTIALITY § 3490.91. Persons to whom child abuse information shall be made available.
(a) Reports, report summaries and other accompanying information obtained under the CPSL and this chapter in the possession of the Department [,] and a county agency [and a CPS] are confidential. Except for the subject of a report, persons who receive information under this section shall be advised that they are subject to the confidentiality provisions of the CPSL and this chapter, that they are required to insure the confidentiality and security of the information and that they are liable for civil and criminal penalties for releasing information to persons who are not permitted access to this information. This material shall only be released under the CPSL and this chapter and be made available only to the following:
(1) An authorized official of a [CPS in the course of official duties] county agency or of an agency of another state that performs protective services analogous to those services performed by county agencies or the Department in the course of the official's duties, multidisciplinary team members assigned to the case, and authorized persons providing services by referral or under section [17(8)] 6364 of the CPSL (relating to purchasing services of other agencies) [(11 P. S. § 2217(8))]. The name of the person who made the report or cooperated in the investigation may be released to county agencies in this Commonwealth and out-of-State agencies providing protective services if they have a legitimate need to know this information and they can assure the confidentiality of the identity of the person who made the report or cooperated in the investigation.
* * * * * (3) A guardian ad litem or court designated advocate for the child.
(4) An authorized official or agent of the Department including the following:
* * * * * (iv) Authorized officials or agents of the Department who are conducting a performance audit as authorized [by] of the CPSL under section 6343 (relating to investigating performance of county agency) and this chapter.
(5) A court of competent jurisdiction under a court order or a court of common pleas upon written request from a judge in connection with any matter involving custody of a child.
(i) When the Department receives a written request under this subsection, ChildLine will send to the court copies of the following:
(A) The Report of Suspected Child Abuse (CY 47).
(B) The ChildLine Report of Suspected Child Abuse and Neglect For ChildLine Use Only (CY 47C).
(C) The Child Protective Service Investigation Report (CY 48).
(D) The Child Protective Service Supplemental Report (CY 49) on file at ChildLine involving the subject child, the child's siblings and their parents.
(ii) If the court requests specific files or information that is not on file at ChildLine, ChildLine will notify the county agency administrator to provide the information directly to the court. The information provided by the county agency is limited to child abuse information from when the report of suspected abuse was made to when the county agency determined the status of the report.
(6) A standing committee of the General Assembly, under section [24] 6384 of the CPSL (relating to legislative oversight) [(11 P. S. § 2224)].
* * * * * (8) Federal auditors, if required for Federal financial participation in funding of agencies, but Federal auditors may not [have access to identifying information] remove identifiable reports or copies of them from the Department or county agencies.
(9) Law enforcement officials of any jurisdiction inside or outside of this Commonwealth if the information is relevant in the course of investigating cases of [the following]:
* * * * * (iv) A report of a missing child when the child or the child's sibling is the subject of a report on file at ChildLine.
(10) Law enforcement officials who shall receive reports of suspected child abuse from the [CPS] county agency, when the initial report or initial review by the [CPS] county agency gives evidence that the alleged abuse is one of the following:
* * * * * (11) [County executive officers, to whom the Department will forward specific files, upon request, for review if investigating the competence of county children and youth employes.] Designated county officials in reviewing the competence of the county agency or its employes under the CPSL and this chapter. Officials under this paragraph are limited to the following:
(i) The board of commissioners in counties other than counties of the first class.
(ii) The mayor of a city of the first class under the First Class City Home Rule Act (53 P. S. §§ 13101--13157.
(iii) An individual serving as a county chief executive as designated by a county home rule charter or optional plan form of government.
(12) A subject of the report [as required by § 3490.104 (relating to release of information to a subject of a report)].
(13) A person, agency or institution, upon written consent of all subjects of the report may receive a copy of the reports on file with the county agency and ChildLine.
* * * * * (15) Required reporters of suspected child abuse whose access to information is limited to the following:
* * * * * (ii) Services provided [,] or arranged [for or to be provided] by the [CPS] county agency to protect the child from further abuse. This information may be released to the required reporter at any time after the report of suspected child abuse has been made.
(16) A prospective adoptive parent, approved by an adoption agency, when considering adopting an abused child in the custody of a county agency. The adoption agency and the county agency having custody of the child shall determine the scope and detail of information which must be provided so that the prospective parent may make an informed decision to adopt.
(b) [Effective January 1, 1986, prospective] Prospective child care service employe applicants, prospective adoptive and foster parents, prospective administrators and prospective operators of child care services, and [persons] any person seeking voluntary certification may request and receive information concerning whether there exists on file in the Statewide Central Register indicated or founded reports of child abuse naming the person as perpetrator of child abuse under section [23.1] 6344 of the CPSL (relating to information relating to prospective child-care personnel) [(11 P. S. § 2223.1)].
(c) Information on file at the Statewide Central Register as a result of a request to amend, seal or expunge a founded or indicated report of child abuse under §§ 3490.105 and 3490.105a (relating to request by the subject of a founded or indicated report for expunction, amendment or sealing of an abuse report filed with ChildLine prior to July 1, 1995; and request by a perpetrator to amend or expunge an indicated report of child abuse received by ChildLine after June 30, 1995) may only be released to the Secretary or the Secretary's designees in the course of their official duties and the Attorney General when conducting an audit under section 6345 of the CPSL (relating to audits by Attorney General).
(d) A person, including a law enforcement official, who willfully breaches the confidentiality or security of information that the person received under this section, in addition to other civil or criminal penalties provided by law, shall be denied access to any confidential child abuse information in the future.
§ 3490.92. Requests by and referrals to law enforcement officials.
(a) Requests for child abuse information by law enforcement officials under § 3490.91(a)(9) (relating to persons to whom child abuse information shall be made available) shall be made with the following requirements:
* * * * * (2) Requests shall indicate that the child abuse information is needed by the law enforcement official in the course of investigating a case of the following:
* * * * * (iv) A missing child report.
(3) The information shall include the name of the persons who made the report and who cooperated in the investigation when requested by the law enforcement official.
(b) Referrals to law enforcement officials required by § 3490.91(a)(10) shall be made with the following requirements:
(1) Referrals shall be made by the [CPS] county agency to the district attorney or other appropriate law enforcement official [on forms provided by the Department].
(2) Referrals shall be made if the initial report to or initial review by the [CPS] county agency gives evidence that the alleged abuse perpetrated by persons whether or not related to the child is one of the following:
* * * * * (3) Referrals shall be made if the initial report to or initial review by the [CPS] county agency give evidence that the alleged abuse is child abuse perpetrated by persons who are not family members.
(4) If during the course of investigating a report of suspected child abuse, the [CPS] county agency obtains evidence which indicates that referral to law enforcement officials is appropriate, the [CPS] county agency shall immediately refer the report to the law enforcement official.
(5) The [CPS] county agency [shall] may not refer to law enforcement officials reports of suspected child abuse which do not meet the requirements of paragraphs (2) and (3).
(6) Reports shall be made verbally under policies and procedures developed in conjunction with the district attorney and other law enforcement officials.
(7) Reports shall be made in writing on the next work day when the report is made verbally or within 24 hours of when the county agency determines that the report meets the criteria for making a report to law enforcement officials. Written reports shall be made on forms developed by the Department.
(8) The county agency shall release the names of the persons who made the report or cooperated in the investigation to law enforcement officials upon request.
(c) If the complaint of suspected abuse is determined to be one which cannot be investigated by the county agency because the person accused of the abuse is not a perpetrator, but does suggest the need for investigation, the county agency shall immediately transmit the information to the appropriate authorities.
[(c)] (d) The [CPS shall] county agency may not provide information to a law enforcement official under this section, unless the law enforcement official is known to or has exhibited proper identification to the [CPS] county agency.
(e) Law enforcement officials shall treat all reporting sources and persons who cooperated in the investigation as confidential informants.
§ 3490.93. Requests by designated county [executive officers] officials.
Requests for child abuse information by designated county [executive officers] officials under § 3490.91(a)(11) (relating to persons to whom child abuse information shall be made available) shall be made under the following requirements:
(1) Requests shall be made in writing and addressed to [the Deputy Secretary of the Office of Children, Youth and Families] the county administrator.
(2) Requests shall be signed by [a]:
(i) A majority of the county [executive officers] commissioners.
(ii) The mayor of a city of the first class.
(iii) The county chief executive.
(3) Requests shall indicate that the information is needed by the designated county [executive officers] officials as part of an investigation of the competence of a county [children and youth] agency or county agency employe.
(4) Requests shall identify the specific files needed [by the county executive officers].
(5) The county agency shall provide the requested information and inform the designated county officials that the information may not be released to anyone except those permitted access to this information under § 3490.91 (relating to persons to whom child abuse information shall be made available) and that they are subject to § 3490.102 (relating to criminal liability for breach of confidentiality).
§ 3490.94. Release of the identity of a person who made a report of child abuse or cooperated in a subsequent investigation.
(a) [The] Except for the release of the identity of the persons who made a report of suspected child abuse or cooperated in the investigation under §§ 3490.91(a)(9) and (10) and 3490.92(a)(3) (relating to persons to whom child abuse information shall be made available; and requests by and referrals to law enforcement officials), the release of data that would identify the person who made a report of suspected child abuse or person who cooperated in a subsequent investigation is prohibited, unless the Secretary finds that the release will not be detrimental to the safety of the person.
(b) Prior to releasing information under subsection (a) to anyone other than a law enforcement official under subsection (a), the Secretary will notify the person whose identity would be released that [he] the person has [45] 30 calendar days to advise the Secretary why this anticipated release would be detrimental to [his] the person's safety.
§ 3490.95. Release of information to required reporters.
The release of information by the [CPS] county agency to required reporters under § 3490.91(a)(15) (relating to persons to whom child abuse information shall be made available) is subject to the following:
(1) The information released by the [CPS] county agency shall concern the same child who was the subject of the report made by the required reporter [who is requesting the information].
(2) The required reporter shall request the information, either [orally] verbally or in writing.
(3) Before releasing the allowable information, the [CPS] county agency shall verify the identity of the required reporter in one of the following ways:
(i) The [CPS] county agency shall be able to recognize the voice of the required reporter when the request is made [orally] verbally by telephone.
(ii) If the [CPS] county agency is not familiar with the required reporter and does not recognize the reporter's voice, the [CPS] county agency may verify the request of the required reporter by returning the telephone call to the reporter's place of employment.
(iii) If the [CPS] county agency is unable to verify a telephone request for information from a required reporter under subparagraphs (i) and (ii), the [CPS] county agency shall obtain a written request for information from the required reporter.
(4) The [CPS] county agency shall release the information under § 3490.91(a)(15) when requested by a required reporter.
(5) The [CPS] county agency may release the information under § 3490.91(a)(15) either [orally] verbally or in writing, to the required reporter whether or not a request for information was received.
(6) The [CPS] county agency shall inform the required reporter of [his] the reporter's obligation to protect the confidentiality of information released as required under [section 15] sections 6339 and 6340 (relating to confidentiality of reports; and release of information in confidential reports) of the CPSL [(11 P. S. § 2215)].
(7) The [CPS] county agency shall make an entry of the request made by the required reporter and the response given in the case record.
[(8) This section applies to reports of suspected child abuse made on or after January 5, 1988.]
[OTHER] GENERAL REQUIREMENTS FOR CHILD PROTECTIVE SERVICES § 3490.102. Criminal liability for breach of confidentiality.
[Any] A person who willfully releases or permits the release of data or information contained in the pending complaint file, the Statewide Central Register, or the county agency records, to persons or agencies not permitted by this chapter to receive this information shall be guilty of a misdemeanor of the third degree. In addition, the person shall be denied access in the future to any information that the person would otherwise be entitled to receive under the CPSL and this chapter.
§ 3490.103. Nonabuse reports received by the county agency or other public agency from ChildLine.
Public agencies, including county agencies, shall evaluate those referrals from ChildLine made under section [14(f)] 6334 of the CPSL (relating to disposition of reports) [(11 P. S. § 2214(f))] which have not been identified as reports of suspected child abuse. If, after the evaluation, the agency has reason to [believe] suspect that child abuse occurred, the agency shall make a report of suspected abuse to ChildLine.
§ 3490.104. Release of information to a subject of a report.
(a) Upon written request to a [CPS] county agency or ChildLine, a subject of a report may receive at any time a copy of the reports filed with the [CPS] county agency and ChildLine. The identity of the person who made the report or a person who cooperated in a subsequent investigation may be released only under § 3490.94 (relating to release of the identity of a person who made a report of child abuse or cooperated in a subsequent investigation).
(b) Upon written request, a defendant in a criminal proceeding is entitled to the child abuse information in the possession of a county agency in accordance with applicable law. The information is limited to the county agency record from the date the report was made to the date the county agency determined the status of the report. The county agency shall send the requested information to the district attorney, who will decide what information will be released. The information that is released to the district attorney may not contain the identity of the person who made the report or cooperated in the investigation.
§ 3490.105. Request by the subject of a founded or indicated report for expunction, amendment or sealing of an abuse report received by ChildLine prior to July 1, 1995.
* * * * * (b) The Secretary will decide whether to grant or deny a request made under subsection (a) within 30 days from the date the request is received. The Secretary will notify subjects of the report and the appropriate [CPS] county agency of [his] the decision by first-class mail.
§ 3490.105a. Request by a perpetrator to amend or expunge an indicated report of child abuse received by ChildLine after June 30, 1995.
(a) A perpetrator of an indicated report of child abuse may request the Secretary to amend or expunge the report on the grounds that it is inaccurate or is being maintained in a manner inconsistent with the CPSL and this chapter. The request shall be in writing and postmarked within 45 calen-dar days of the mailing date of the letter from ChildLine under §§ 3490.40 and 3490.40a (relating to notifications regarding indicated reports; and notifications regarding founded reports).
(b) The Secretary will decide within 30 calendar days whether or not to grant the request. The Secretary will notify the perpetrator, the county agency and other subjects in writing under one of the following:
(1) Except the subject child, all other subjects of the report when the decision is to grant the request.
(2) Only the perpetrator when the decision is to deny the request.
(c) The notification from the Secretary will be sent by first-class mail.
§ 3490.105b. Request by a nonperpetrator subject to amend an indicated report of child abuse received after June 30, 1996.
Except for the status of an indicated or founded report of child abuse, a nonperpetrator subject may request the Secretary to amend a report received at ChildLine on or after July 1, 1996, on the basis that the information in the report is inaccurate.
§ 3490.106. Hearings and appeals proceedings for reports received by ChildLine prior to July 1, 1995.
(a) A subject of the report and the appropriate [CPS] county agency have the right to appeal the Secretary's decision to grant or deny a subject's request to amend, seal or expunge an indicated or founded report by filing an appeal with the Secretary.
(b) Appeals shall be in writing to the Secretary and be postmarked [no later than] within 45 calendar days from the date of the Secretary's notification letter to either grant or deny the request.
(c) If a subject or [CPS] county agency files an appeal under § 3490.105(a) (relating to request by the subject of a founded or indicated report for expunction, amendment or sealing of an abuse report received by ChildLine prior to July 1 1995), the subject or [CPS] county agency has the right to a hearing before the Department's [Office] Bureau of Hearings and Appeals.
* * * * * (f) The burden of proof in hearings held under this section is as follows:
(1) If a subject or [CPS] county agency appeals the Secretary's decision to grant a request to amend, seal or expunge an indicated or founded report, the subject or [CPS] the county agency that filed the appeal bears the burden of proof.
(2) The [CPS] county agency bears the burden of proof if a subject appeals the Secretary's decision to deny the request to amend, seal or expunge a report of child abuse.
(g) [The fact of a] A court finding of fact of child abuse is presumptive evidence that the report was substantiated.
(h) Parties to a hearing held under this section have 30 days from the date of the final order of the [Office] Bureau of Hearings and Appeals to request the Secretary to reconsider the decision or appeal the final order to Commonwealth Court.
§ 3490.106a. Hearings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995.
(a) A perpetrator may appeal the Secretary's decision to deny the request to expunge an indicated report by filing an appeal with the Secretary.
(b) The other subjects of the report and the county agency may appeal the Secretary's decision to grant the request to expunge the report.
(c) The request shall be made to the Secretary and postmarked within 45 calendar days of the date of the notification letter from the Secretary to either grant or deny the request to expunge the report.
(d) If an appeal is taken, there is a hearing before the Department's Bureau of Hearings and Appeals.
(e) Except as provided in subsection (f), hearings will be conducted under 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedures).
(f) Hearings will be scheduled and final administrative action taken in accordance with the time limits specified in § 275.4(b) and (e)(1), (3) and (5) (relating to procedures).
(g) The burden of proof in hearings held under this section is upon:
(1) The subject or county agency when the subject or county agency appeals the Secretary's decision to grant a request to expunge an indicated report.
(2) The perpetrator when the perpetrator appeals the Secretary's decision to deny the request to amend or expunge an indicated report of child abuse.
(h) Parties to a hearing held under this section have 15 days from the mailing date of the final order of the Bureau of Hearings and Appeals to request the Secretary to reconsider the decision or 30 days to appeal the final order to Commonwealth Court.
(i) An administrative appeal proceeding will be automatically stayed upon notice to the Department by any subject or the county agency that there is a pending criminal proceeding or a dependency or delinquency proceeding under the Juvenile Act, including an appeal thereof, involving the same factual circumstances.
§ 3490.108. Cooperation of county agencies and law enforcement agencies.
Consistent with this chapter, the county agencies and law enforcement agencies shall cooperate and coordinate, to the fullest extent possible, their efforts to respond to reports of suspected child abuse.
§ 3490.109. Report from law enforcement agencies.
The law enforcement agency shall, as soon as possible and without jeopardizing the criminal investigation or prosecution, advise the county agency as to whether a criminal investigation has been undertaken and the results of the investigation and of any criminal prosecution in cases of suspected child abuse. The county agency shall ensure that the information is referred to ChildLine in a timely manner.
VERIFICATION OF THE EXISTENCE OF CHILD ABUSE AND STUDENT ABUSE RECORDS FOR CHILD CARE SERVICES § 3490.121. Definitions.
The following words and terms, when used in this section and §§ 3490.122--[3490.126] 3490.127 (relating to verification of existence of child abuse records for child care services) have the following meanings, unless the context clearly indicates otherwise:
* * * * * Applicant--A person who will have direct contact with children in a child care service, who does one of the following:
* * * * * (iv) Is a candidate for participation in the [community work experience] workfare program under sections 405.1 and 405.2 of the Public Welfare Code (62 P. S. §§ 405.1 and 405.2).
Child care service--Child day care centers, group and family day care homes, foster homes, adoptive parents, boarding homes for children, juvenile detention center services or programs for delinquent or dependent children; mental health, mental retardation, early intervention and drug and alcohol services for children; and other child care services which are provided by or subject to approval, licensure, registration[,] or certification by the Department or a county social services agency or which are provided under a contract with the Department or which are provided under a contract with the Department or a county social services agency. The term does not include services or programs which may be offered by public and private schools, intermediate units or area vocational-technical schools.
Child caretaker--A person whether compensated or not who provides care for a child and who voluntarily solicits certification from the Department under section [23.1(k)] 6344 of the CPSL (relating to information relating to prospective child-care personnel) [(11 P. S. § 2223.1(k))]. The term includes [but is not limited to]a babysitter, scout leader or den mother.
Direct contact with children--[Care, supervision, guidance or control of a child by a paid employe of or a person under contract with a child care service] Access to children by a paid employe of or person under contract with a child care service who has routine and unsupervised access to children in the course of carrying out the employe's responsibilities in a child care service.
* * * * * Request for verification--A request to the [ChildLine and abuse registry] Statewide Central Register from an applicant, operator of a child care service, foster parent or adoptive parent or a child caretaker seeking voluntary certification to determine whether [he] the applicant is named as a perpetrator in an indicated or founded report of child abuse.
§ 3490.122. Responsibilities of an applicant, prospective operator or legal entity of a child care service.
(a) An applicant or prospective operator of a child care service shall submit a request for verification on forms provided by the Department. The request for verification shall include a check or money order for the fee charged by the Department, payable to the Department of Public Welfare, which will not exceed $10. Prospective [community work experience] workfare program participants are exempt from payment of the fee.
* * * * * (c) An administrator, or other person responsible for hiring decisions, may not hire or contract with an applicant, nor may a prospective operator be issued a certificate of compliance or registration if the Department has verified that the applicant or prospective operator is named in the [central register] Statewide Central Register as the perpetrator of a founded report of child abuse committed within 5 years or less prior to the request for verification.
(d) An administrator, or other person responsible for hiring decisions, may not hire or contract with an applicant, nor may a prospective operator be issued a certificate of compliance or registration if the applicant's criminal history record information dictates that the applicant or prospective operator has been convicted of a crime as specified in section [23.1(e)] 6344 of the CPSL (relating to information relating to prospective child-care personnel) [11 P. S. § 2223.1(e)], or an equivalent out-of-State crime as determined by the Department[, within 5 years or less prior to the request for criminal record history information].
* * * * * (f) An applicant or prospective operator of a child care service located in this Commonwealth who is not a resident of this Commonwealth is required to obtain a report of criminal history record [history] from the Federal Bureau of Investigation according to procedures established by the Department and on forms provided by ChildLine.
§ 3490.123. Responsibilities of [a] prospective adoptive [parent] parents, prospective foster [parent]parents, foster family care agencies and adoption investigators.
(a) A prospective adoptive parent or a prospective foster parent shall submit a request for verification on [properly prepared] forms provided by the Department. The request for verification shall include a check or money order for the fee charged by the Department, payable to the Department of Public Welfare, which will not exceed $10.
(b) In the course of causing an investigation to be made under 23 Pa.C.S. § 2535(a) (relating to investigation), an agency or person designated by the court to conduct the investigation shall require prospective adoptive parents to submit the information in section [23.1(b)(1)--(3)] 6344 of the CPSL (relating to information relating to prospective child-care personnel) [([11 P. S. § 2223.1(b)(1)--(3))] for review under subsection (d).
(c) In the course of approving a prospective foster parent, a foster family care agency shall require prospective foster parents to submit the information in section [23.1(b)(1)--(3)] 6344 of the CPSL [(11 P. S. § 2223.1 (b)(1)--(3))] for review by the foster family care agency under subsection (d).
(d) A prospective adoptive parent or prospective foster parent may not be approved by a foster family care agency, an adoption agency, or a person designated by the court under 23 Pa.C.S. § 2535(a) when any of the following circumstances apply:
* * * * * (2) The parent has been convicted of a crime under section [23.1(e)] 6344 of the CPSL [(11 P. S. § 2223.1(e))] or an equivalent out-of-State crime as determined by the Department [within 5 years or less prior to the request for criminal record history information].
* * * * * § 3490.124. Departmental procedures for replying to a request for verification [from an applicant, prospective operator of a child care service, prospective adoptive parent or prospective foster parent].
(a) Requests for verification received on [properly prepared Departmental forms] forms provided by the Department with a check or money order payable to the Department of Public Welfare in the amount charged by the Department will be processed. Prospective [community work experience program] workfare participants are exempt from payment of the fee. Others will be returned with instruction for resubmitting the request.
(b) The Department will advise the person seeking verification in writing whether or not [he] the person is named as a perpetrator of an indicated or founded report of child abuse or an indicated or founded report for a school employe in the [ChildLine and central registry] Statewide Central Register. If the person is named as a perpetrator of an indicated or founded report of child abuse or indicated or founded report for a school employe, the response will include the following information:
(1) The number of indicated or founded reports of child abuse and indicated or founded reports for a school employe in which the applicant is named as the perpetrator of child abuse or school employe responsible for student abuse.
(2) The date of the incidents of indicated or founded reports of child abuse and indicated or founded reports for a school employe.
§ 3490.125. Voluntary certification of child caretakers.
(a) A child caretaker may request certification from the Department that the requirements of section [23.1] 6344 of the CPSL (relating to information relating to prospective child-care personnel) [(11 P. S. § 2223.1(b))] have been met.
(b) A child caretaker requesting voluntary certification who is a resident of this Commonwealth shall obtain a report of criminal history from the Pennsylvania State Police and submit it to the Department with the request for verification on [properly prepared] forms provided by the Department.
* * * * * (d) The Department will reply to requests for voluntary certification by providing the following:
(1) A copy of the report of criminal history record information from the Pennsylvania State Police.
(2) A report of child abuse and student abuse history record information under § 3490.124 (relating to Departmental procedures for replying to a request for verification [from an applicant, prospective operator of a child care service, prospective adoptive parent or prospective foster parent)].
* * * * * (f) [Requests for voluntary certification received on properly prepared Departmental forms with a check or money order payable to the Department in the amount charged by the Department will be processed.] The Department will process requests for voluntary certification it receives on the forms developed by the Department. The request shall include a check or money order payable to the Department of Public Welfare in the amount charged by the Department.
§ 3490.126. Sanctions.
(a) An administrator, or other person responsible for employment decisions in a child care facility or program who willfully fails to comply with section [23.1] 6344 of the CPSL (relating to information relating to prospective child-care personnel) [(11 P. S. § 2223.1)] is subject to civil penalty not to exceed $2,500.
(b) Information received by a legal entity, an administrator, the Department or the Department of Health under § 3490.124 (relating to Departmental procedures for replying to a request for verification [from an applicant, prospective operator of a child care service, prospective adoptive parent or prospective foster parent)] is confidential and the legal entity, administrator, the Department and the Department of Health are subject to § 3490.102 (relating to criminal liability for breach of confidentiality).
§ 3490.127. Information relating to prospective child care personnel.
(a) The administrator of a child care service may employ applicants on a provisional basis for a single period of employment pending the receipt of the required clearances in accordance with section [23.1(d) or (e)] 6344 of the CPSL (relating to information relating to prospective child-care personnel) [(11 P. S. § 2223.1(d) or (e))].
* * * * * (c) The administrator may employ an applicant on a provisional basis if the administrator has no knowledge or information that would disqualify the applicant from employment in accordance with section [23.1(d) or (e)] 6344 of the CPSL and if the applicant has complied with each of the following:
* * * * * (3) Sworn or affirmed in writing that he was not disqualified from employment under section [23.1(d) or (e)] 6344 of the CPSL.
* * * * * (e) If the provisional employe does not submit the required clearances within 30 or 90 calendar days of employment, whichever is applicable, the administrator shall do one of the following:
* * * * * (2) Lay off or place the provisional employe on leave with or without pay [status] until the clearances are received.
* * * * * (f) A provisional employe shall be immediately dismissed from employment if he is disqualified from employment under section [23.1(d) or (e)] 6344 of the CPSL.
VERIFICATION OF THE EXISTENCE OF CHILD ABUSE AND STUDENT ABUSE RECORDS FOR SCHOOL EMPLOYES § 3490.131. Definitions.
The following words and terms, when used in this section and §§ 3490.132--3490.137, have the following meanings, unless the context clearly indicates otherwise:
Administrator--The person, including an independent contractor, responsible for employment decisions in a school.
Applicant--An individual who applies for employment as a school employe. The term includes an individual who transfers from one position as a school employe to another position as a school employe.
Clearance statement--An official clearance statement from the Department on whether an applicant's name is on file in the Statewide Central Register as a perpetrator in an indicated or founded report of child abuse or an indicated or founded report of student abuse.
Direct contact with students--Access to children by a school employe who has routine and unsupervised access to children in the course of carrying out the employe's responsibilities in a school.
Independent contractor and the contractor's employes--A person employed in a position on a contractual basis with a school who has direct contact with students.
Position--The job classification of a school employe as defined and determined by existing law, State regulation or the school board or governing authority including administrative and supervisory staff, teachers, paraprofessionals, support staff or others.
School--All schools including public and nonpublic schools as defined in the Public School Code (24 P. S. §§ 1-101--27-2702) and private academic schools as defined in 22 Pa. Code Part II (relating to State Board of Private Academic Schools), as follows:
(i) Public--School districts, intermediate units and area vocational-technical schools.
(ii) Registered--Nonpublic (religiously affiliated schools).
(iii) Licensed--Private academic schools that are licensed by the Department of Education (including residential facilities that hire their own staff to teach residents of the facility).
(iv) Accredited--Accredited by an accreditation association or organization.
(v) State-owned--Scotland School and Scranton School for the Deaf.
School employe--An individual employed in a position by a school. The term includes independent contractors and their employes. The term does not include individuals who have no direct contact with students.
Substitute list--A list, approved by the hiring authority of a school, containing the names of persons eligible to serve the school as substitute teachers or temporary replacements for other employes.
Transfer--A change from one position to another.
§ 3490.132. Responsibilities of an administrator.
(a) An administrator shall require each applicant to submit a clearance statement obtained from the Department within the immediately preceding year as to whether the applicant is named as the perpetrator of an indicated or founded report of child abuse or the individual responsible for an indicated or founded report of student abuse.
(b) A clearance statement shall be required for an applicant who transfers from one position to another position in the same school building or school district or organization and prior to the transfer has not obtained a clearance statement under subsection (a).
(c) A clearance statement is not required for an employe who moves within a school building or from one school to another school within the same school district or organization but does not change position.
(d) Except as provided in § 3490.134 (relating to information relating to prospective school employes), an administrator may not hire an applicant if the applicant is the perpetrator of a founded report of child abuse or the individual responsible for a founded report of student abuse.
(e) An administrator may not hire an applicant if the clearance statement is more than 1 year old as determined by the date on the clearance statement.
(f) School administrators shall, in their contracts with independent contractors and their employes who have direct contact with students, require contractors to include provisions for a clearance statement as required by this chapter.
(g) A clearance statement is required only prior to the initial hiring of a substitute and remains in effect as long as the substitute continues to be employed by the same school. When a substitute seeks to have his name added to another school's substitute list, the substitute shall provide a current clearance statement to the additional school. The fact that a substitute appears on one school's substitute list is not sufficient evidence to allow another school to add his name to its substitute list.
(h) The administrator shall make a copy of the clearance statement and place it in the employe's personnel record.
§ 3490.133. Responsibilities of an applicant.
(a) An applicant shall submit a request for a clearance statement to the Department on the form provided by the Department. The request shall include a check or money order payable to the Department of Public Welfare. The fee may not exceed $10.
(b) An applicant shall show the original clearance statement to the administrator and permit a copy to be made.
§ 3490.134. Information relating to prospective school employes.
(a) Section 3490.132 (relating to responsibilities of an administrator) does not apply to a person working in a school who is:
(1) Under 21 years of age.
(2) Participating in a job development or job training program.
(3) Employed for not more than 90 calendar days.
(b) An administrator may employ an applicant on a provisional basis if the following apply:
(1) The applicant attests in writing by oath or affirmation that he has submitted or will submit within 24 hours a request for a clearance statement and is not disqualified under § 3490.132.
(2) The administrator has no knowledge of information which would disqualify the applicant under § 3490.132.
(c) The provisional period may not exceed:
(1) Thirty calendar days for residents of this Commonwealth.
(2) Ninety calendar days for residents of another state.
(d) An administrator may not hire an applicant on a provisional basis during a strike under the Public Employe Relations Act (43 P. S. §§ 1101.201--1101.2301).
(e) If the applicant does not submit the clearance statement within 30 or 90 calendar days, whichever is applicable, the administrator shall do one of the following:
(1) Dismiss the provisional employe until the required clearance statement is received.
(2) Lay off or place the provisional employe on leave with or without pay until the clearance statement is received.
(3) Retain and reassign the provisional employe to a position that does not involve direct contact with children.
(f) An administrator shall immediately dismiss a provisional employe if the employe is the perpetrator of a founded report of child abuse or the individual responsible for causing serious bodily injury to or sexually abusing or sexually exploiting a student in a founded report of student abuse.
§ 3490.135. Responsibilities of the Department.
(a) Requests for clearance statements received on forms provided by the Department with a check or money order payable to the Department of Public Welfare in the amount charged by the Department will be processed. The Department will return the forms that are not completed properly with instructions for resubmitting the request.
(b) The Department will advise the person seeking a clearance statement in writing whether or not he is named as a perpetrator of an indicated or founded report of child abuse or an indicated or founded report for a school employe in the Statewide Central Register. If the person is named as a perpetrator of an indicated or founded report of child abuse or indicated or founded report for a school employe, the response will include the following information:
(1) The number of indicated or founded reports of child abuse and indicated or founded reports for a school employe in which the applicant is named as a perpetrator of child abuse or a school employe responsible for student abuse.
(2) The date of the incidents of indicated or founded reports of child abuse or indicated or founded reports for a school employe.
(c) The Department will comply with the request for an official clearance statement within 14 days of receipt of the request by the Department.
§ 3490.136. Sanctions.
An administrator who willfully violates section 6355 of the CPSL (relating to requirement) shall be subject to an administrative penalty of $2,500. An action under section 6355 of the CPSL is governed by 2 Pa.C.S. Chapter 5, Subchapter A (relating to practice and procedure of Commonwealth agencies) and Chapter 7, Subchapter A (relating to judicial review of Commonwealth Department action).
§ 3490.137. Forms.
To obtain a form for the Clearance Statement, call the ChildLine Verification Unit at (717) 783-6211 and ask for a Pennsylvania Child Abuse History Clearance form.
(Editor's Note: Subchapter B is new and is printed in regular typeface to enhance readability.)
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