PROPOSED RULEMAKING
DEPARTMENT OF PUBLIC WELFARE
[55 PA. CODE CHS. 3480 AND 3490]
Protective Services
[28 Pa.B. 1079] The Department of Public Welfare (Department) under the authority of Articles VII and IX of the Public Welfare Code (62 P. S. §§ 701--704 and 901--922); 42 Pa.C.S. §§ 6301--6365 (relating to Juvenile Act); section 2168 of the County Code (16 P. S. § 2168); section 405 of the County Institution District Law (62 P. S. § 2305); and of 23 Pa.C.S. §§ 6301--6385 (relating to the Child Protective Services Law) (CPSL), proposes to amend Chapter 3490 (relating to protective services) to read as set forth in Annex A.
Purpose
It is the purpose of Chapter 3490 to encourage more complete reporting of suspected child abuse; to the extent permitted by this chapter, to involve law enforcement agencies, as permitted by this chapter, in responding to child abuse; and to establish in each county, protective services for the purpose of investigating the reports swiftly and competently, providing protection for children from further abuse and providing rehabilitative services for children and parents involved so as to ensure the child's well-being and to preserve, stabilize and protect the integrity of family life wherever appropriate. It is also the purpose of this chapter to ensure that each county children and youth agency establish a program of protective services for neglected children with policies and procedures to assess the risk of harm to a child and with the capabilities to respond adequately to meet the needs of families and children who may be at risk and to prioritize the response and services to children most at risk.
It is also the purpose of this chapter to provide for investigations of reports of suspected abuse of students by school employes and screen applicants for employment in schools to determine whether or not the applicant has a prior history of abusing children. It is also the purpose of this chapter to establish a training and certification program for all county children and youth agency staff who provide direct services to abused and neglected children.
Need for the Proposed Amendments
These proposed amendments are needed to implement the act of December 16, 1994 (P. L. 1286, No. 151) (Act 151) and Act 10 of 1995 (Special Session), clarify existing regulations that need to be changed and delete Chapter 3480.
Children deserve to grow up in safe, nurturing homes. Sadly, many are victims of child abuse and neglect. It is a problem that has devastating effects on children, families and our Commonwealth. In 1995, over 6,000 children in this Commonwealth were abused by their parents or other individuals responsible for their care and 33 died from abuse. These proposed amendments will improve the ability to protect children from abuse and neglect.
Requirements
a. Section 3490.4 (relating to definitions). The definition of ''child abuse'' has been amended to:
1. Require the county children and youth agencies to investigate only those reports of suspected serious physical injury that are reported within 2 years of the date the alleged abuse occurred. It is reasoned that if a child has not been abused within 2 years that further abuse is unlikely. This amendment allows the county agencies to concentrate their efforts on preventing reabuse of children who have been abused and are more likely to be abused than on children who have not been abused within 2 years.
2. Include situations of imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child. This proposed amendment would prevent the abuse of children when there is a high probability of abuse.
3. Require mandated reporters to make a report of suspected child abuse when they have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child. The standard of when they are mandated to report has been changed from ''reasonable cause to believe'' to ''reasonable cause to suspect.'' This should result in protection for more children and a slight increase in the number of reports of suspected child abuse.
b. Section 3490.39 (relating to expunction from the Statewide Central Register) requires the Department to establish a subfile of the names of perpetrators of indicated and founded reports of child abuse and student abuse in the Statewide Central Register when the Social Security number or date of birth of the person responsible for the abuse is known. These reports will remain on file indefinitely. This will aid the county agencies in protecting future children who are abused by a perpetrator known to have abused a child previously and after the rest of the record of the previous abuse has been expunged.
c. Section 3490.56 (relating to the county agency or Department's investigation of suspected child abuse perpetrated by persons employed or supervised by child caring agencies and residential facilities) requires child care agencies and residential facilities to develop and implement a plan of supervision or alternative arrangements for the individual under investigation as the alleged perpetrator when the child is allegedly abused by an employe of the agency or facility. The plan must be approved by the county agency. This will protect the child reported as abused and other children in the care of the agency or facility until the investigation is completed and a decision is made regarding the future employment status of the employe.
d. Sections 3490.61 and 3490.235 (relating to supervisory review and child contacts; and services available through the county agency for neglected children) require the county agency supervisor to review reports of suspected abuse that are under investigation and reports of suspected neglect that are being assessed on an ongoing and regular basis to ensure the safety of the child and the progress made toward reaching a status determination. These sections also require the county agency to assure that contacts are made with the child and parents as often as necessary for the protection of the child but no less often than once a week when the child is at high risk of abuse or neglect. These changes are proposed as a result of the Department's experience in reviewing county agency performance relating to case planning and client contacts.
e. Section 3490.105(a) (relating to request by a perpetrator to amend or expunge an indicated report of child abuse received by ChildLine after June 30, 1995) requires perpetrators of indicated reports of child abuse who seek to have the report amended or expunged to request the Secretary of the Department to amend or expunge the report within 45-calendar days of the mailing date of the letter from ChildLine. This protects the child from having to testify at a hearing about something that may have happened a long time ago and that the child may have forgotten.
f. Section 3490.108 (relating to cooperation of county agencies and law enforcement agencies) requires the county agencies and law enforcement officials to cooperate and coordinate their investigations of reports of suspected child abuse to the extent permitted by law. The law was amended in 1982 to require reporting of certain types of child abuse to law enforcement officials but did not provide for cooperation between the two agencies. This proposed amendment builds on this change by requiring closer cooperation and coordination of these two agencies which will help to reduce the trauma to children of having to repeat what happened to them numerous times to numerous people. The Office of Children, Youth and Families in the Department and the Pennsylvania District Attorneys Association have formed a workgroup to foster better working relationships between the two agencies. It will also provide greater protection for abused and neglected children because of the possibility of criminal prosecution and incarceration.
The proposed amendment does not provide specific requirements relating to when or how coordination should occur, because there will be occasions when cooperation and coordination will be difficult because of the circumstances of the abuse.
g. Section 3490.109 (relating to report from law enforcement agencies) requires law enforcement agencies to notify the county agency if a criminal investigation has been undertaken and the results of the investigation and prosecution on child abuse reports referred to them by the county agency. Prior to Act 151, county agencies were required to notify law enforcement officials of certain instances of suspected child abuse. However, there was not a requirement for law enforcement officials to notify the county agency of the results of the referrals. There is no statistical data on the disposition of referral made by county agencies to law enforcement officials. This change will provide necessary information on criminal justice outcomes from law enforcement referrals by county agency staff.
h. Sections 3490.131--3490.137, under the center heading ''Verification of Existence of Child Abuse and Student Abuse Records for School Employes,'' require administrators of schools to require all applicants for position as school employes, including independent contractors and their employes who work directly with children, to submit a clearance statement from the Statewide Central Register which is the State repository of all founded and indicated reports of child abuse and student abuse. A clearance determines if the applicant's name is on file as a perpetrator of child abuse or student abuse. An administrator or independent contractor may not hire an applicant if the applicant is a perpetrator of a founded report of child abuse or student abuse. This prevents persons who have abused a child in the past from working in a school where they may abuse a child in the future. While the law does not prohibit an administrator or contractor from hiring a perpetrator of an indicated report of child abuse or student abuse, it encourages the administrator to request the applicant for additional information, thereby, allowing the administrator to make an informed decision based on information obtained from the Statewide Central Register.
i. Subchapter B (relating to students in public and private schools) provides for reporting and investigating reports of suspected serious bodily injury or sexual abuse or sexual exploitation of a student by a school employe. School administrators are required to report suspected student abuse to the district attorney and local law enforcement officials. The law enforcement official is required to investigate the allegation and to report the suspected student abuse to the county agency if the official has reasonable cause to suspect that the child was abused by a school employe. The county agency is required to investigate the report to determine whether the report is a founded, indicated or unfounded report of student abuse. Unfounded reports are expunged from the State and county files within 120-calendar days of when the report was received at ChildLine. Founded and indicated reports are expunged from the Statewide Central Register when the child turns 23 years of age. However, except for the identity of the child, information on founded and indicated reports of student abuse are maintained indefinitely when the Social Security number or date of birth of the school employe who abused the student is known. A person responsible for the abuse in an indicated report of student abuse has the right to request the Secretary of the Department to amend or expunge the report. Subchapter B will provide protection for children who are abused by a school employe and prevent perpetrators of child abuse and student abuse from being employed in positions where they may abuse another child.
j. Subchapter C (relating to general protective services) requires each county agency to administer a program of general protective services for neglected children who have been assessed as needing protective services to prevent abuse, neglect and exploitation; keep children in their own homes when possible; overcome problems that result in dependency; provide temporary substitute care; reunite families when children have been placed in out-of-home care; provide permanent legally assured care for children who cannot return home; and provide services for children adjudicated dependent by a court. ''Neglect'' is defined as: acts or omissions by a parent or the primary person responsible for the care of a child which result in a failure to provide the essentials of life and which create a potential for harm to the child's safety, functioning or development. A child may not be considered neglected based solely on environmental factors that are beyond the control of the parent or the primary person responsible for the child's care including inadequate housing, furnishings, income, clothing and medical care. For purposes of the definition of ''neglect,'' the following terms have the following definitions:
(i) ''Essentials of life''--Food, shelter, clothing, health care, personal care, education as required by law, proper supervision and protection from physical, sexual or emotional injury.
(ii) ''Primary person who is responsible for the care of a child''--A person who provides or arranges ongoing care and supervision to a child in lieu of parental care and supervision.
(iii) ''Potential for harm''--Likely, if permitted to continue, to have a detrimental effect on the child's health, development or functioning. The term does not include imminent risk as defined in the definition of ''child abuse'' in § 3490.4 (relating to definitions).
This subchapter establishes provisions for county agencies to receive and assess reports of suspected child neglect. The subchapter establishes those services that county agencies must have available for neglected children and their families both during and after the assessment. It establishes recordkeeping procedures for county agencies for general protective services. This subchapter defines what neglect is and establishes the requirements for general protective services. The purposes of the subchapter are to protect children who are neglected and protect neglected children from being abused. The county agencies are currently providing general protective services under Chapter 3480.
k. Subchapter D (relating to staff orientation, training and certification requirements) provides that the Department, in conjunction with a steering committee cochaired by a representative of the Department and a representative from the Pennsylvania Children and Youth Administrators, Inc., establish a training and certification program for county agency staff who provide direct services. County staff who had regular employment status on June 30, 1996, were certified and not required to complete any of the required training courses. Staff hired on or after July 1, 1996, will be required to complete 120 hours of CORE training and be recommended by the person's supervisor for certification. Staff who are not certified as direct service workers may not provide protective services. The proposed amendments also require annual training for direct service workers. The certification requirements will insure that all direct service workers have met minimum training requirements and have been approved by the county agency as certified direct service workers. This will result in better services to children and their families and aid in recruiting and retaining staff who will be better qualified to provide services.
l. Subchapter D (relating to risk assessment) requires that the Department and the county agencies establish a State-approved risk assessment process to aid in determining the amount of risk to a child if the child remains in the child's own home or is returned home from placement. The county agencies are using a State-approved risk assessment process. Risk assessment is a valuable tool for staff to help to determine the risk of harm to a child and to determine what services are necessary to protect the child until agency involvement is no longer needed.
m. Section 3490.331 (relating to annual report on required activities) requires the Department to include in the annual report to the Governor and General Assembly the number of reports of suspected child abuse and neglect, student abuse, the number of children the county agency is providing services to, the cost to implement the CPSL, the number of reports made to law enforcement officials and any recommendations for Legislative change. This report will provide more complete information on the scope of the problem of abuse and neglect, the number of children receiving services from the county agencies, the cost to implement the law and changes needed to provide even service improvement to abused and neglected children.
n. Section 3490.361 (relating to requirements for agencies providing protective services) requires private agencies providing protective services arranged by the county agency to comply with §§ 3130.21(4), 3130.39 and 3130.40 (relating to responsibilities of county executive officers; services and facilities which may be used; and delivery of services through other service providers).
o. Section 3490.362 (relating to requirements for persons providing services arranged or provided by the county agency) requires professional persons providing services to abused and neglected children to have a valid license issued by the Department of State when their profession is subject to mandatory licensure. This will insure that services to abused and neglected children and their families are provided by qualified staff.
p. Section 3490.401 (relating to intercounty transfer of cases) proposes requirements relating to the transfer of information from one county to another county when the child or parent moves to another county and the case is being investigated for suspected child abuse, being assessed for suspected child neglect or was accepted by the county agency for protective services. These revisions are proposed as a result of the Department's experience in reviewing county agency performance relating to this issue.
Affected Individuals and Organizations
The proposed amendments will affect children and youth and their families. It will also affect public and private children and youth agencies, law enforcement officials, school employes and persons whose employment, occupation or practice of their profession bring them into direct contact with children.
Fiscal Impact
(a) Public Sector
(1) The cost for FY 1997--98 is in the appropriation for payments to counties for child welfare services and is based on information provided to the Department through the needs-based budgeting process.
(2) The estimate for FY 1998--99 is based on previous spending patterns of the county agencies.
(3) The estimate for FYs 1999--00 through 2000--02 includes an annual increase of 3%.
Year 1997-98 1998-99 1999-00 2000-01 2001-02 State $853 $878 $904 $931 $958 Counties 213 219 226 233 239 Total $1,066 $1,097 $1,130 $1,164 $1,197 (The figures are in thousands)
(b) Estimated savings to the State and counties as a result of the proposed amendments.
Any savings were factored into the estimated budgets that counties submitted to the Department.
Private Sector
These proposed amendments require an applicant for employment in a school to pay up to $10 to the Department to verify whether or not the applicant's name is on file in the Statewide Central Register of founded and indicated reports of child abuse and student abuse. In Calendar Year 1996, ChildLine received 192,149 requests for clearance statements from applicants for employment where the applicants have direct contact with children. Of these 192,149, 88,000 were as a result of the amendment that requires applicants for employment in schools to receive a clearance statement from ChildLine. We estimate the number of requests will increase by 5% a year.
1997 1998 1999 2000 2001 Total $924 $970 $1,018 $1,069 $1,123 (c) General Public
There will be no costs to the general public, except for persons applying for employment in a school who are required to pay a $10 fee to verify whether or not the person's name is on file in the Statewide Central Register of founded and indicated reports of child abuse and student abuse.
Paperwork Requirements
School administrators will be required to complete a portion of a form and send it to the district attorney and law enforcement officials when making a report of suspected student abuse. It will take approximately 15 minutes to complete this form.
Law enforcement officials will be required to complete the other portion of the form and send it to the county agency when the law enforcement official receives a report of suspected student abuse. It will take approximately 15 minutes to complete this form.
It is estimated that the costs to complete the form for reporting suspected student abuse will be nominal.
Law enforcement officials will also complete a brief form and send it to the county agency advising it of the status of a referral of suspected child abuse or student abuse that was made to law enforcement. This is a new requirement. It will take approximately 10 minutes to complete this form. While approximately 8,000 reports of suspected child abuse are made to law enforcement officials annually, it is not anticipated that this will impact in any significant way on the budgets of law enforcement agencies.
County agencies are required to assess the risk to an abused or neglected child and complete a risk assessment process. It is estimated that it takes approximately 20 minutes to complete the risk assessment process.
Protective service supervisors are required to complete an Individual Training Needs Assessment (ITNA) annually for each of their staff. The ITNA is a component of the certification and training program and is used to determine the training needs of a protective service worker. It takes approximately 45 minutes to complete an ITNA.
Effective Dates
These proposed amendments become effective upon publication in the Pennsylvania Bulletin as final rulemaking.
Sunset Date
No sunset date has been established for these proposed amendments. The Secretary of the Department is required by the law and these proposed amendments to submit an annual report to the Governor and the General Assembly on the implementation of the law. The report must include recommendations to amend the law, thus, the Department is continuously evaluating the effectiveness of the law and the need for amendments.
Public Comment Period
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed amendments to the Department of Public Welfare, Joseph L. Spear, P. O. Box 2675, Harrisburg, PA 17105-2675, (717) 787-3986, fax (717) 787-0414 within 30-calendar days after the date of publication in the Pennsylvania Bulletin. All comments received within 30-calendar days will be reviewed and considered in the preparation of the final-form regulations. Comments received after the 30-day comment period will be considered for any subsequent revisions of these amendments.
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 10, 1998, the Department submitted a copy of these proposed amendments to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Aging and Youth and the Senate Committee on Public Health and Welfare. In addition to submitting the proposed amendments, the Department has provided IRRC and the committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1. 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 Department within 10 days of the close of the Committees' 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 review, prior to final publication, of the amendments of objections raised, by the Department, the General Assembly and the Governor.
FEATHER O. HOUSTOUN,
SecretaryFiscal Note: 14-441. (1) General Fund;
State County (2) Implementing Year 1997-98 is $853,000 $213,000
(3) 1st Succeeding Year 1998-99 is $878,000 $219,000 2nd Succeeding Year 1999-00 is $904,000 $226,000 3rd Succeeding Year 2000-01 is $931,000 $233,000 4th Succeeding Year 2001-02 is $958,000 $239,000
5th Succeeding Year 2002-03 is $1,008,000 $252,000 (4) FY 1996-97 $354,863,000 $163,757,000 FY 1995-96 $264,743,000 $142,988,000 FY 1994-95 $309,561,000 $149,347,000 (7) Department of Public Welfare County Child Welfare; (8) recommends adoption. The State will pay the counties through the needs based budget for county services to children and youth. The counties are responsible for a portion of the cost of these services.
Annex A
TITLE 55. PUBLIC WELFARE
PART V. CHILDREN, YOUTH AND FAMILIES MANUAL
Subpart D. NONRESIDENTIAL AGENCIES, FACILITIES AND SERVICES
ARTICLE III. COUNTY-ADMINISTERED SERVICES
CHAPTER 3480. [CHILD PROTECTIVE SERVICES--GENERAL] (Reserved) (Editor's Note: The Department proposes to delete Chapter 3480, 55 Pa. Code pages 3480-1 to 3480-5, serial pages (168951) to (168955).)
§§ 3480.1--3480.4 [Reserved].
§§ 3480.11--3480.17. [Reserved].
CHAPTER 3490. [CHILD] PROTECTIVE SERVICES [-- CHILD ABUSE]
INTRODUCTION § 3490.1. Applicability.
This chapter applies to the Department; other departments, boards, bureaus and agencies of the Commonwealth or any of its political subdivisions; county children and youth social service agencies and other agencies providing services to children and youth; law enforcement officials; county executive officers; auditors of the Federal government; public and nonpublic schools; intermediate units; area vocational-technical schools; independent school contractors; and persons who, in the course of their employment or occupation or in the practice of their profession, come into contact with children.
§ 3490.2. [Goals] Purposes.
The [goals] purposes of this [chapter] subchapter are to:
* * * * * (4) Involve law enforcement agencies in responding to child abuse.
(5) Prioritize the response and services to children most at risk.
(6) Encourage more complete reporting of suspected child abuse.
§ 3490.4. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Accept for service--The county agency decides on the basis of the needs and problems of an individual to admit or receive the individual as a client of the agency or as required by a court order entered under the Juvenile Act.
Agent of the county agency--A person who provides a children and youth social service either directly or under contract or through agreement with a county agency.
(i) An agent of the county agency includes, [but is not limited to]:
* * * * * (H) A school employe of a facility or agency that is an agent of a county agency.
* * * * * Arrange--Make a service available to a client accepted for service through another agency or service provider which is not paid for by the county agency.
[CPS--Child Protective Services. The section of each children and youth social service agency required to be established by section 16 of the CPSL.
CPS plan--A component of the services plan and budget estimate of county children and youth social service agencies which meets the requirements of section 16 of the CPSL.]
* * * * * Certified medical practitioner--A licensed physician, a physician's assistant or a certified registered nurse practitioner.
Child--A person [17 years of age or younger] under 18 years of age.
Child abuse--[Serious physical or mental injury which is not explained by the available medical history as being accidental, or sexual abuse or sexual exploitation, or serious physical neglect of a child under 18 years of age if the injury, abuse or neglect has been caused by the acts or omissions of the child's parents, or by a person responsible for the child's welfare, or an individual residing in the same home as the child, or a paramour of a child's parent. No child may be deemed to be physically or mentally abused for the sole reason that he is in good faith being furnished treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner thereof or is not provided specified medical treatment in the practice of religious beliefs, or solely on the grounds of environmental factors which are beyond the control of the person responsible for the child's welfare such as inadequate housing, furnishings, income, clothing and medical care.]
(i) The term means any of the following:
(A) A recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child.
(B) 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.
(C) A recent act, failure to act or series of such 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.
(D) 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.
(ii) No child will 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.
(iii) If, upon investigation, the county agency determines that a child has not been provided needed medical or surgical care because of seriously held religious beliefs of the child's parents, guardian or person responsible for the child's welfare, which beliefs are consistent with those of a bona fide religion, the child will not be deemed to be physically or mentally abused. The county agency shall closely monitor the child and shall seek court-ordered medical intervention when the lack of medical or surgical care threatens the child's life or long-term health. In cases involving religious circumstances, all correspondence with a subject of the report and the records of the Department and the county agency may not reference ''child abuse'' and shall acknowledge the religious basis for the child's condition, and the family shall be referred for general protective services, under Subchapter C (relating to general protective services), if appropriate.
ChildLine--An organizational unit of the Department which operates a Statewide toll-free system for receiving reports of suspected child abuse established [by] under section [14(c)] 6332 of the CPSL (relating to establishment of Statewide toll-free telephone number), refers the reports for investigation, and maintains the reports in the appropriate file. In addition, it also receives reports of student abuse under Subchapter B (relating to abuse of students in school).
County agency--[The county children and youth social service agency as required by Chapter 3130 (relating to administration of county children and youth social service programs).] The county children and youth social service agency established under section 405 of the act of June 24, 1937 (P. L. 2017, No. 396), known as the County Institution District Law, or its successor, and supervised by the Department under Article IV of the Public Welfare Code (62 P. S. §§ 401--403). It also includes the Department's Office of Children, Youth and Families' regional offices when the report of suspected child abuse or student abuse involves an agent of the county agency.
County plan--A needs-based plan and budget estimate which serves as the basis for administration of the county children and youth social services program required by Chapter 3140 (relating to planning and financial reimbursement requirements for county children and youth social service programs).
* * * * * Deviate sexual intercourse--Sexual intercourse by mouth or anus or with an animal. The term also includes penetration, however slight, of the genitals or anus of a child with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures.
Director of a hospital or other medical facility--The director or a person specifically designated in writing by the director to perform [his] the functions under section 6315 of the CPSL (relating to taking child into protective custody) and this chapter.
* * * * * Forcible compulsion--Compulsion by use of physical, intellectual, moral, emotional or psychological force, either expressed or implied.
Foreign object--The term includes any physical object not part of the perpetrator's body.
Founded report--A child abuse report made under the CPSL and this chapter if there has been a judicial adjudication based on a finding that a child who is a subject of the report has been abused including the entry of a plea of guilty or nolo contendere and after the court has accepted the defendant's plea of guilty or nolo contendere and imposed sentence or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse.
Indecent contact--Any touching of the sexual or other intimate parts of a child for the purpose of arousing or gratifying sexual desire in either person.
Indicated report--A child abuse report made under the CPSL and this chapter if an investigation by the [CPS] county agency determines that substantial evidence of the alleged abuse exists based on one of the following:
* * * * * (ii) The [CPS] county agency investigation.
* * * * * 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 alleged to be abused.
Juvenile Act--42 Pa.C.S. Chapter 63.
* * * * * Pending criminal court action--The status assigned to a report when the county agency cannot complete the investigation within 30 calendar days because criminal court action has been initiated.
Pending juvenile court action--The status assigned to a report when the [CPS] county agency cannot complete the investigation within 30 calendar days because juvenile court action has been initiated.
* * * * * Perpetrator--A person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as the child [,] or a paramour of the child's parent [who has committed child abuse as defined in section 3 of the CPSL and this chapter].
Person responsible for the child's welfare--A person, such as a babysitter, stepparent, day care staff person or residential child care staff 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 either by legal authorization or consent of the parent. The term does not include a person who is employed by or provides services or programs in any public or private school, intermediate unit or area vocational-technical school.
* * * * * Protective services--Services and activities provided by the Department and each county agency for children who are alleged or actually abused under this subchapter or alleged or actually neglected under Subchapter C (relating to general protective services).
Provide--To perform an activity directly through county agency staff or ensure the performance of an activity through a purchase of service agreement with another agency or individual.
Recent act or failure to act--An act or failure to act committed within 2 years of the date of the report of suspected child abuse to the Department or county agency.
[Recognized church or religious denomination--A religious organization so recognized for tax purposes by the United States Internal Revenue Service.]
* * * * * Required reporters--(i) Persons who, in the course of their employment, occupation or practice of their profession come into contact with children and have [reason to believe] reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is a victim of child abuse. Except with respect to confidential communications made to an ordained member of the clergy which are protected under 42 Pa.C.S. § 5943 (relating to confidential communications to clergymen), the privileged communication between a professional person required to report and the patient or client of that person does not apply to situations involving child abuse and does not constitute grounds for failure to report as required by this subchapter.
(ii) Persons required to report include[, but are not limited to, a] the following:
(A) A licensed physician, medical examiner, coroner, funeral director, dentist, osteopath, chiropractor, psychologist, podiatrist, intern, registered nurse, licensed practical nurse[; hospital].
(B) Hospital personnel engaged in the admission, examination, care or treatment of persons[; a]
(C) A Christian Science practitioner, member of the clergy, school administrator, school teacher, school nurse, social services worker, day care center worker or another child care or foster care worker, mental health professional, peace officer or law enforcement official.
Secretary--The Secretary of the Department or a person specifically designated in writing by the Secretary to perform [his] the Secretary's functions under the CPSL and this chapter.
* * * * * Serious mental injury--A psychological condition as diagnosed by a physician or licensed psychologist caused by the [acts] act or [omissions] failure to act--including the refusal of appropriate treatment--of the perpetrator which does one of the following:
(i) Renders the child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that [his] the child's life or safety is threatened.
* * * * * Serious physical injury--An injury caused by the [acts] act or [omissions] failure to act of a perpetrator which does one of the following:
* * * * * [(iii) Is accompanied by physical evidence of a continuous pattern of separate, unexplained injuries to the child.]
Serious physical neglect--A physical condition caused by the [acts] act or [omissions] failure to act of a perpetrator which endangers the child's life or development or impairs [his] the child's functioning and is the result of one of the following:
* * * * * (ii) Failure to provide essentials of life, including adequate medical and dental care.
Sexual abuse--[Any of the following when committed on a child by a perpetrator:
(i) Statutory rape--Sexual intercourse with a child who is less than 14 years of age by a person 18 years of age or older.
(ii) Involuntary or voluntary deviate sexual intercourse--Intercourse by mouth or rectum or with an animal.
(iii) Sexual assault--Sexual involvement, including the touching or exposing of the sexual or other intimate parts of a person, for the purpose of arousing or gratifying sexual desire in either the perpetrator or subject child.
(iv) Incest--Sexual intercourse with an ancestor or descendant--by blood or adoption--brother or sister of the whole or half blood, or an uncle, aunt, nephew or niece of the whole blood.
(v) Promoting prostitution--Inducing or encouraging a child to engage in prostitution.
(vi) Rape--Sexual intercourse by force or compulsion.
(vii) Pornography--Includes one of the following:
(A) The obscene photographing, filming or depiction of children for commercial purposes.
(B) The obscene filming or photographing of children or showing of obscene films or photographs to arouse or gratify sexual desire in either the perpetrator, subject child or viewing audience.]
Any of the following if committed on a child by a perpetrator:
(i) Aggravated indecent assault--Penetration, however slight, of the genitals or anus of a child with a part of the perpetrator's body for any purpose other than good faith medical, hygienic or law enforcement procedures as follows:
(A) By forcible compulsion.
(B) If the child is under 13 years of age.
(C) If the child is under 16 years of age and the perpetrator is 4 or more years older than the child and they are not married to each other.
(ii) Incest--Sexual intercourse with an ancestor or descendant--by blood or adoption--brother or sister of the whole or half blood, or an uncle, aunt, nephew or niece of the whole blood.
(iii) Indecent assault--Indecent contact with a child or causing the child to have indecent contact with the perpetrator as follows:
(A) Without the child's consent.
(B) By forcible compulsion.
(iv) Indecent exposure--Exposing one's genitals to a child.
(v) Involuntary deviate sexual intercourse--Deviate sexual intercourse with a child as follows:
(A) By forcible compulsion.
(B) If the child is under 13 years of age.
(C) If the child under than 16 years of age and the perpetrator is 4 or more years older than the child and they are not married to each other.
(vi) Molestation--Indecent contact, including:
(A) Looking at the sexual or other intimate parts of a child for the purpose of arousing or gratifying sexual desire in either person.
(B) Requiring the child to look at the sexual or other intimate parts of another person for the purpose of arousing or gratifying sexual desire in any person involved.
(C) Showing of pornographic material to a child.
(vii) Pornography--The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist a perpetrator to engage in sexually explicit conduct or simulation of sexually explicit conduct for the purpose of producing a visual depiction, including photographing, videotaping, computer depicting or filming of sexually explicit conduct.
(viii) Promoting prostitution--Inducing or encouraging a child to engage in prostitution.
(ix) Rape--Sexual intercourse by force or compulsion.
(x) Sexual assault--Sexual intercourse or deviate sexual intercourse with a child without the child's consent.
(xi) Statutory sexual assault--Sexual intercourse with a child who is under 16 years of age and the perpetrator is 4 or more years older than the child and they are not married to each other.
Sexual intercourse--In addition to its ordinary meaning, the term includes intercourse by mouth or anus, with some penetration, however slight; emission is not required.
Statewide Central Register--A register of child abuse and student abuse, established in the Department, which consists of founded and indicated reports of child abuse and student abuse.
Status determination--The decision made by the [CPS] county agency that a child abuse or student abuse report is founded, indicated, unfounded [or] , pending juvenile court action or pending criminal court action.
Subjects of the report--A child [reported to ChildLine and his parent, guardian, other person responsible or other perpetrator also named in the report], parent, guardian or other person responsible for the welfare of a child or any alleged or actual perpetrator named in a report made to the Department or county agency under this subchapter.
Substantial evidence--Evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.
Unfounded report--A report made under the CPSL and this chapter unless the report is a founded report or [unless an investigation by the appropriate CPS determines that the report is] an indicated report of child abuse.
§ 3490.5. Waivers.
(a) A waiver of a requirement of this chapter may be requested as specified in procedures published by the Department.
(b) A waiver may be granted by the Department if the waiver:
(1) Does not alter the applicability, scope or purpose of this chapter.
(2) Is based on evidence, supplied by the requesting agency, that the objective of the requirement will be achieved in another way.
(3) Is based on evidence, supplied by the requesting agency, that a waiver will have no adverse effect on the health, safety and rights of children.
(4) Does not violate or condone noncompliance with Federal statutes or regulations, State statutes or regulations other than the requirement of this chapter for which the waiver is approved.
(5) Does not jeopardize receipt of Federal monies.
(c) Except as provided in section 6361 of the CPSL (relating to organization for child protective services), the Department may not waive the requirement that the county agency is the sole civil agency responsible to receive and investigate reports of suspected child abuse and receive and assess reports of suspected neglect.
(d) An agency requesting a waiver shall continue to comply with the requirements of this chapter unless a waiver is granted.
REPORTERS § 3490.11. Reporting suspected child abuse.
A person may make a report of suspected child abuse to ChildLine or a [CPS] county agency if the person has reasonable cause to suspect that a child has been abused. Reports shall be accepted by ChildLine or the [CPS] county agency regardless of whether the person identifies himself.
§ 3490.13. Reports by employes who are required reporters.
(a) Required reporters who work in an institution, school, facility or agency shall immediately notify the person in charge of the institution, school, facility or agency or [his] a designee of suspected abuse. The person in charge, or [his] the designee, shall be responsible and have the obligation to make a report of the suspected child abuse to ChildLine immediately.
(b) [The person in charge or his designee shall make a report of suspected child abuse immediately to ChildLine. He] The person in charge or the designee may not make an independent determination of whether to report. The person in charge or [his] the designee shall notify the employe when the report was made to ChildLine.
* * * * * § 3490.14. Privileged communication.
The privileged communication between a professional person required to report and [his] the person's patient or client does not apply to situations involving child abuse and may not constitute grounds for failure to report as required by section 6311 of the CPSL (relating to persons required to report suspected child abuse) and this chapter.
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