PROPOSED RULEMAKING
STATE BOARD OF OPTOMETRY
[49 PA. CODE CH. 23]
Child Abuse Reporting Requirements
[26 Pa.B. 1023] The State Board of Optometry (Board) proposes to amend § 23.1 (relating to definitions) and adopt §§ 23.111--23.116 (relating to child abuse reporting requirements) to read as set forth in Annex A. The proposed amendments are responsive to the statutory mandate of 23 Pa.C.S. § 6383(b)(2) (relating to education and training) of the Child Protective Services Law (CPSL), which requires that each licensing board with jurisdiction over professional licensees identified as mandated reporters of child abuse promulgate regulations by July 1, 1996, on the responsibilities of the mandated reporters. Under section 6311(b) of the CPSL (relating to persons required to report suspected child abuse), optometrists are included among the enumeration of persons required to report suspected child abuse.
The child abuse reporting requirements proposed by these regulations are, with few exceptions, recapitulations of the statutory requirements imposed upon persons required to report suspected child abuse under the CPSL. Following is a description of the proposed regulations:
§ 23.1 (relating to definitions)
Definitions are proposed to be added to § 23.1 for the following words and phrases used throughout the amendments: ''abused child,'' ''child abuse,'' ''ChildLine,'' ''individual residing in the same home as the child,'' ''perpetrator,'' ''person responsible for the child's welfare,'' ''recent acts or omissions,'' ''serious mental injury,'' ''serious physical injury'' and ''sexual abuse or exploitation.'' With three exceptions, the proposed definitions provided for these terms are those contained in section 6303 of the CPSL (relating to definitions). The definition of ''abused child'' is derived from the definition ''child abuse'' as defined under section 6303(b) of the CPSL. Section 6311(a) of the CPSL refers to an ''abused child'' in the general rule regarding persons required to report suspected child abuse. The term, however, is not defined in the CPSL. As proposed, the phrase ''abused child'' would be defined to mean ''a child under 18 years of age whom an optometrist has reasonable cause to suspect, on the basis of the optometrist's professional or other training or experience, is a victim of child abuse and who is subsequently the subject child in an indicated or founded report of child abuse under 23 Pa.C.S. Chapter 63 (relating to the Child Protective Services Law) and 55 Pa. Code Chapter 3490 (relating to child protective services--child abuse).'' The proposed definition of ''ChildLine'' is tailored after the Department of Public Welfare's definition of ''ChildLine'' found at 55 Pa. Code § 3490.4 (relating to defintions).
§ 23.111 (relating to suspected child abuse--mandated reporting requirements)
Proposed § 23.111 announces mandatory reporting requirements for persons required to report suspected child abuse under section 6311 of the CPSL. As proposed, the section is divided into four subsections, (a)--(d). Subsection (a) announces the circumstances under which an optometrist in private practice settings shall make a report of suspected child abuse. Subsection (b) announces the reporting requirements under section 6311(c) of the CPSL, for optometrists who are staff members of a medical or other public or private institution, school, facility or agency. Subsections (c) and (d), respectively, announce the procedures for reporting child abuse as required under section 6313 of the CPSL (relating to reporting procedures). Proposed subsection (c) instructs that reports of suspected child abuse shall be made immediately by telephone to ChildLine, and in writing within 48 hours after the oral report, to the appropriate county children and youth social services agency. Proposed subsection (d) enumerates information which, if available, shall be included in a written report.
§ 23.112 (relating to photographs, medical tests and X-rays of child subject to report)
Under section 6314 of the CPSL (relating to photographs and X-rays of child subject to report), persons or officials who are required to report cases of suspected child abuse are permitted to take photographs of the child who is subject to a report and, if clinically indicated, cause to be performed a radiological examination and other medical tests on the child. Proposed § 23.112 advises optometrists of this information and of other relevant information which shall be forwarded to the appropriate county children and youth social service agency concurrently with the written report or as soon thereafter as possible.
§ 23.113 (relating to suspected death as a result of child abuse--mandated reporting requirement)
Section 6317 of the CPSL (relating to reporting postmortem investigation of deaths) provides that a person or official required to report cases of suspected child abuse who has reasonable cause to suspect that a child died as a result of child abuse shall report that suspicion to the appropriate coronor. Proposed § 23.113 advises optometrists of this statutory mandate.
§ 23.114 (relating to immunity from liability)
Proposed § 23.114 advises optometrists that under section 6318 of the CPSL (relating to immunity from liability) those who participate in good faith in the making of a report of suspected child abuse, cooperating with an investigation, testifying in a proceeding or taking photographs, shall have immunity from civil and criminal liability that might result by reason of the optometrist's actions. The proposed section also informs optometrists that under section 6318 of the CPSL, the good faith of the optometrist will be presumed for the purpose of any civil or criminal proceeding. The Board proposes as well under § 23.114 to extend the good faith presumption to disciplinary proceedings against an optometrist that result by reason of the optometrist's actions in participating in good faith in the making of a report of suspected child abuse.
§ 23.115 (relating to confidentiality--waived)
Section 6383(b)(2) of the CPSL requires that the regulations promulgated by licensing boards having jurisdiction over professional licensees identified as mandated reporters ''shall clarify that the provisions of this chapter take precedence over any professional standard that might otherwise apply in order to protect children from abuse.'' Section 23.115 proposes to address this statutory mandate by clarifying that the child abuse reporting requirements announced in this chapter take precedence over the Optometric Practice and Licensure Act (act) (63 P. S. §§ 244.1--244.12) and any other ethical principle or professional standard that might otherwise apply.
§ 23.116 (relating to noncompliance)
Proposed § 23.116 advises optometrists of the consequences of noncompliance with the child abuse reporting requirements of §§ 23.111--23.113. The section is divided into two subsections, (a) and (b). As proposed, optometrists are advised under subsection (a) that a willful failure to comply with the reporting requirements will result in disciplinary action under section 7(8), (10) and (11) of the act (63 P. S. § 244.7(8), (10) and (11)). Subsection (b) advises optometrists of the criminal penalties available under section 6319 of the CPSL (relating to penalties for failure to report) for the same willful noncompliance with the reporting requirements.
Statutory Authority These amendments are proposed under the authority of section 6383 of the CPSL and section 3(b)(14) of the act (63 P. S. § 244.3(b)(14)).
Fiscal Impact and Paperwork Requirements The proposed regulations will have no fiscal impact on the Commonwealth or its political subdivisions. As mandated reporters, optometrists may incur additional paperwork in complying with the child abuse reporting requirements announced by these amendments.
Regulatory Review Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of these proposed amendments on February 28, 1996, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Committee on Professional Licensure and the Senate Committee on Consumer Protection and Professional Licensure. In addition to submitting the proposed amendments, the Board has provided IRRC and will provide the Committees with a detailed regulatory analysis form prepared by the Board in compliance with Executive Order 1982-2, ''Improving Government Regulations.'' A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed amendments, it will notify the Board within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for the Board, the Governor and the General Assembly to review these objections before final publication of the regulations.
Public Comment Interested persons are invited to submit written comments, suggestions or objections regarding the proposed amendments to Deborah B. Eskin, Board Counsel, State Board of Optometry, 116 Pine Street, P. O. Box 2649, Harrisburg, PA 17105-2649, within 30 days of publication of this proposed rulemaking.
ROBERT A. GINSBURG, O.D.,
ChairpersonFiscal Note: 16A-523. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 23. STATE BOARD OF OPTOMETRY
GENERAL PROVISIONS § 23.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Abused child--A child under 18 years of age whom an optometrist has reasonable cause to suspect, on the basis of the optometrist's professional or other training or experience, is a victim of child abuse and who is subsequently the subject child in an indicated or founded report of child abuse under 23 Pa.C.S. Chapter 63 (relating to the Child Protective Services Law) and 55 Pa. Code Chapter 3490 (relating to child protective services--child abuse).
* * * * * Child abuse--A term meaning any of the following:
(i) A recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age.
(ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iii) A recent act, failure to act or series of acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide the essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning.
ChildLine--An organizational unit of the Department of Public Welfare which operates a 24-hour a day Statewide toll-free telephone system for receiving reports of suspected child abuse, referring reports for investigation and maintaining the reports in the appropriate file.
* * * * * Individual residing in the same home as the child--An individual who is 14 years of age or older and who resides in the same home as the child.
* * * * * Perpetrator--A person who has committed child abuse and is a parent of the child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child's parent.
Person responsible for the child's welfare--A person who provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control. The term does not include a person who is employed by or provides services or programs in a public or private school, intermediate unit or area vocational-technical school.
Recent acts or omissions--Acts or omissions committed within 2 years of the date of the report to the Department of Public Welfare or county agency.
* * * * * Serious mental injury--A psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that does one or more of the following:
(i) Renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child's life or safety is threatened.
(ii) Seriously interferes with a child's ability to accomplish age-appropriate developmental and social tasks.
Serious physical injury--An injury that causes a child severe pain or significantly impairs a child's physical functioning, either temporarily or permanently.
Sexual abuse or exploitation--The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct, or a simulation of sexually explicit conduct, for the purpose of producing a visual depiction of sexually explicit conduct, or the rape, molestation, incest, prostitution or other form of sexual exploitation of children.
(Editor's Note: The following text is new. It has been printed in regular type to enhance readability.)
CHILD ABUSE REPORTING REQUIREMENTS § 23.111. Suspected child abuse--mandated reporting requirements.
(a) General rule. Under 23 Pa.C.S. § 6311 (relating to persons required to report suspected child abuse), optometrists who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made to the Department of Public Welfare when they have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is an abused child.
(b) Staff members of institutions, and the like. Optometrists who are staff members of a medical or other public or private institution, school, facility or agency, and who, in the course of their employment, occupation or practice of their profession, come into contact with children shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge when they have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is an abused child. Upon notification by the optometrist, the person in charge or the designated agent shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with subsections (a), (c) and (d).
(c) Reporting procedure. Reports of suspected child abuse shall be made immediately by telephone to ChildLine, (800) 932-0313, and in writing within 48 hours after the oral report to the county children and youth social service agency in the county where the suspected child abuse occurred.
(d) Written reports. Written reports shall be made in the manner and on forms prescribed by the Department of Public Welfare by regulation. The following information shall be included in the written reports, if available:
(1) The names and addresses of the child and the parents or other person responsible for the care of the child, if known.
(2) Where the suspected abuse occurred.
(3) The age and sex of the subjects of the report.
(4) The nature and extent of the suspected child abuse including any evidence of prior abuse to the child or siblings of the child.
(5) The name and relationship of the persons responsible for causing the suspected abuse, if known, and any evidence of prior abuse by those persons.
(6) Family composition.
(7) The source of the report.
(8) The person making the report and where that person can be reached.
(9) The actions taken by the reporting source, including the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner.
(10) Other information which the Department of Public Welfare may require by regulation.
§ 23.112. Photographs, medical tests and X-rays of child subject to report.
An optometrist may take or cause to be taken photographs of the child who is subject to a report and, if clinically indicated, cause to be performed a radiological examination and other medical tests on the child. Medical summaries or reports of the photographs, X-rays and relevant medical tests taken shall be sent to the county children and youth social service agency at the time the written report is sent or as soon thereafter as possible. The county children and youth social service agency shall be entitled to have access to actual photographs or duplicates and X-rays and may obtain them or duplicates of them upon request.
§ 23.113. Suspected death as a result of child abuse--mandated reporting requirement.
An optometrist who has reasonable cause to suspect that a child died as a result of child abuse shall report that suspicion to the appropriate coroner.
§ 23.114. Immunity from liability.
Under 23 Pa.C.S. § 6318 (relating to immunity from liability), an optometrist who participates in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs shall have immunity from civil and criminal liability that might result by reason of the optometrist's actions. For the purpose of any civil or criminal proceeding, the good faith of the optometrist shall be presumed. The Board will uphold the same good faith presumption in any disciplinary proceeding that might result by reason of an optometrist's actions in participating in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs.
§ 23.115. Confidentiality--waived.
To protect children from abuse, the reporting requirements of this chapter take precedence over provisions of the act defined in § 23.1 (relating to definitions) and other ethical principles or professional standards that might otherwise apply to optometrists.
§ 23.116. Noncompliance.
(a) Disciplinary action. An optometrist who willfully fails to comply with the reporting requirements in §§ 23.111--23.113 (relating to suspected child abuse--mandated reporting requirements; photographs, medical tests and X-rays of child subject to report; and suspected death as a result of child abuse--mandated reporting requirement) will be subject to disciplinary action under section 7(8), (10) and (11) of the act (63 P. S. § 244.7(8), (10) and (11)).
(b) Criminal penalties. Under 23 Pa.C.S. § 6319 (relating to penalties for failure to report), an optometrist who is required to report a case of suspected child abuse who willfully fails to do so commits a summary offense for the first violation and a misdemeanor of the third degree for a second or subsequent violation.
[Pa.B. Doc. No. 96-348. Filed for public inspection March 8, 1996, 9:00 a.m.]
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