PROPOSED RULEMAKING
STATE BOARD OF
OCCUPATIONAL THERAPY EDUCATION AND LICENSURE
[49 PA. CODE CH. 42]
Child Abuse Reporting Requirements
[52 Pa.B. 6560]
[Saturday, October 22, 2022]The State Board of Occupational Therapy Education and Licensure (Board) proposes to amend §§ 42.13—42.16, 42.41—42.47 and 42.53 and add §§ 42.48 and 42.49 (relating to child abuse recognition and reporting—mandatory training requirements; and child abuse recognition and reporting course approval process) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon notice or final-form publication in the Pennsylvania Bulletin.
Statutory Authority
Section 5(b) of the Occupational Therapy Practice Act (act) (63 P.S. § 1505(b)) sets forth the Board's general rulemaking authority. Under 23 Pa.C.S. Chapter 63 (relating to Child Protective Services Law) (CPSL), specifically, section 6383(b)(2) of the CPSL (relating to education and training), the Board is required to promulgate regulations to implement the mandatory reporting requirements for licensees of the Board.
Background and Purpose
Since 2014, the General Assembly has made numerous amendments to the CPSL, including the addition of the requirement imposed by the act of April 15, 2014 (P.L. 411, No. 31) (Act 31) on all health-related boards to require training in child abuse recognition and reporting for licensees who are considered ''mandated reporters'' under the CPSL. Section 2 of Act 31 provided that these training requirements would apply to persons applying for a license, or applying for renewal of a license, on or after January 1, 2015, and were implemented as of that date. This proposed rulemaking is required to update the Board's existing regulations on the subject of child abuse reporting to comport to the numerous amendments made to the CPSL, and to incorporate the mandatory training requirements required by Act 31.
Description of the Proposed Amendments
The Board proposes to amend §§ 42.13—42.15 (relating to application for licensure; foreign-educated applicants; and application for temporary license) to incorporate the requirement for all applicants to complete, as a condition of licensure, 3 hours of training in child abuse recognition and reporting as required by Act 31. Similarly, the Board proposes to amend §§ 42.16 and 42.53 (relating to biennial renewal; inactive status; failure to renew; and continued competency requirements) to set forth the requirement that licensees applying for biennial renewal or reactivation complete at least 2 hours of continuing education in child abuse recognition and reporting as a condition of renewal or reactivation.
The Board is also proposing comprehensive amendments to the Board's existing child abuse reporting requirements to comport to the amendments to the CPSL. The Board proposes to amend § 42.41 (relating to definitions relating to child abuse reporting requirements) to update the definitions of terms used in the CPSL. Specifically, the Board finds it necessary to define the terms ''bodily injury,'' ''child,'' ''parent,'' ''program, activity or service'' and ''serious physical neglect'' and to amend the definitions of ''child abuse,'' ''perpetrator,'' ''person responsible for the child's welfare,'' ''recent acts or omissions'' and ''sexual abuse or exploitation'' to comport with amendments made to the CPSL. The Board has also added a definition for the terms ''Bureau'' and ''mandated reporter'' for ease of reference. The Board proposes to delete the definitions of ''individual residing in the same home as the child'' and ''serious physical injury'' because they have been deleted from the CPSL. The Board also proposes to amend, where necessary throughout the proposal, the name of the Department of Public Welfare, as the name of that agency has changed to the Department of Human Services.
The Board is proposing to amend § 42.42 (relating to suspected child abuse—mandated reporting requirements) to provide the general rule that all licensees of the Board are considered mandated reporters, and to set forth the mandated reporting requirements and reporting procedures as set forth in sections 6311 and 6313 of the CPSL (relating to persons required to report suspected child abuse; and reporting procedure), as amended. The Department of Human Services has implemented an electronic reporting process for mandated reporters, and the Board finds it necessary to amend § 42.43 (relating to photographs, medical tests and X-rays of child subject to report) to set forth the requirement to submit these types of materials to the county children and youth social service agency within 48 hours of making an electronic report in accordance with section 6314 of the CPSL (relating to photographs, medical tests and X-rays of child subject to report) and to make all medical summaries or reports of the photographs, X-rays and medical tests available to law enforcement officials in the course of investigating cases under section 6340(a)(9) or (10) of the CPSL (relating to release of information in confidential reports).
The Board is proposing to amend § 42.44 (relating to suspected death as a result of child abuse—mandated reporting requirement) to incorporate an amendment made to section 6317 of the CPSL (relating to mandatory reporting and postmortem investigation of deaths) to permit a report to be made to the medical examiner of the county where the death occurred or of the county where the injuries were sustained. Further, the Board is proposing to amend § 42.45 (relating to immunity from liability) to incorporate amendments made to section 6318 of the CPSL (relating to immunity from liability); and to amend § 42.46 (relating to confidentiality—waived) to incorporate the provisions of section 6311.1 of the CPSL (relating to privileged communications). Likewise, the Board is proposing to amend § 42.47 (relating to noncompliance) to update the criminal penalties in section 6319 of the CPSL (relating to penalties) for failure to make a report or referral required by the CPSL.
The Board proposes to add two sections setting forth the mandatory training requirements in section 6383(b)(3)(i) and (ii) of the CPSL. Section 42.48 (relating to child abuse recognition and reporting—mandatory training requirement) is proposed to set forth the requirements that all individuals applying for an initial license are required to complete 3 hours of approved training in child abuse recognition and reporting and that all licensees seeking renewal of a license are required to complete at least 2 hours of continuing education in child abuse recognition and reporting as a requirement of renewal. The Board also proposes to provide notice that these 2 hours of training would be accepted as a portion of the total continuing education required for biennial renewal, and not an additional requirement, as provided in section 6383(b)(2)(iii) of the CPSL. The Board is also clarifying that a license will not be issued or renewed unless the Bureau of Professional and Occupational Affairs (Bureau) has received an electronic report from an approved course provider documenting the attendance/participation by the applicant/licensee. The proposal also clarifies that for purposes of renewal, the course must be completed within the applicable biennial renewal period, and that if a licensee holds more than one license issued by the Board or holds a license from another licensing board within the Bureau that requires mandatory training in child abuse recognition and reporting, credit for completion of an approved course will be applied to both licenses.
This section would also include the process for applying for an exemption from the mandatory training requirements as set forth in section 6383(b)(4) and (6) of the CPSL, for individuals who have already completed similar training or who otherwise should be exempt from the training requirements. The Board notes that section 6383(b)(4)(ii)(B) of the CPSL provides an exemption for individuals who have already completed child abuse recognition training required under the Human Services Code (62 P.S. §§ 101—1503) (formerly known as the Public Welfare Code), and the training was approved by the Department. However, the Department has confirmed that there is no provision in the Human Services Code that requires this training. Instead, section 6383(c) of the CPSL sets forth the requirement that certain individuals and entities regulated by the Department complete mandated reporter training. Therefore, the Board believes it is appropriate to include an exemption for a Board- regulated practitioner who has already completed comparable training in child abuse recognition and reporting required by the Department under section 6383(c) of the CPSL. For example, if an occupational therapist happened to be a foster parent and was, therefore, required to complete the training under section 6383(c) of the CPSL, there would be no need to repeat the training as a condition of licensure or license renewal under section 6383(b) of the CPSL. In addition, section 6383(b)(6) of the CPSL permits the Board to exempt a licensee from the training requirement ''if the licensee submits documentation acceptable to the licensing board that the licensee should not be subject to the training or continuing education requirement.'' The Board believes that this section also provides the authority of the Board to determine that those licensees who are required to complete comparable training under section 6383(c) of the CPSL should be exempt from the training requirement under section 6383(b) of the CPSL, provided they submit acceptable documentation to the Board evidencing completion of comparable training.
The Board also proposes to clarify the standards for granting an exemption under section 6383(b)(6) of the CPSL by explaining that the Board will not grant an exemption based solely upon proof that children are not a part of the applicant's or licensee's practice and that each request for an exemption will be considered on a case-by-case basis. The Board may grant the exemption if it finds that completion of the training or continuing education requirement is duplicative or unnecessary under the circumstances. The Board proposes to add subsection (d) to clarify that exemptions which are granted are applicable only for the biennial renewal period in which the exemption is requested. This subsection will also clarify the process for notifying an applicant or licensee of the Board's decision to grant or deny the exemption.
Finally, the Board proposes to add § 42.49 (relating to child abuse recognition and reporting course approval process) to set forth the process developed by the Bureau, in conjunction with the Department of Human Services, for individuals, entities and organizations to apply for approval to deliver training required under Act 31. The Bureau has incorporated a requirement that to be approved to provide Act 31 training in child abuse recognition and reporting, an applicant must be able to report participation/attendance electronically to the Bureau. In this manner, the completion of the training is automatically imported into the licensee's record with the Board at the time the course is completed.
Fiscal Impact and Paperwork Requirements
The Board does not anticipate any significant fiscal impact or paperwork requirements relating to these proposed amendments. Because licensees are already required to complete mandatory continued competency requirements, and these 2 hours in child abuse recognition and reporting are incorporated in the existing requirement, there would not be an increased burden. Only applicants for licensure would incur an additional requirement and, as there are many low-cost and free options available to complete the training, the Board anticipates this impact to also be minimal. Because all approved training providers of the mandatory training in child abuse recognition and reporting are required to report participation/attendance electronically, there are no additional paperwork requirements imposed on licensees. In addition, the implementation of an electronic reporting system for mandated reporters of child abuse under the CPSL by the Department of Human Services has decreased the paperwork requirements related to the mandatory reporting requirements.
Sunset Date
The Board continuously monitors the effectiveness of its regulations on a fiscal year and biennial basis. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on September 27, 2022, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor.
Public Comment
Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to the Regulatory Counsel, State Board of Occupational Therapy Education and Licensure, P.O. Box 69523, Harrisburg, PA 17106-5923 or RA-STRegulatoryCounsel@pa.gov within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-679 (child abuse reporting requirements) when submitting comments.
KERRI L. HAMPLE,
ChairpersonFiscal Note: 16A-679. 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 42. STATE BOARD OF OCCUPATIONAL THERAPY EDUCATION AND LICENSURE
LICENSURE § 42.13. Application for licensure.
(a) To apply for licensure, an applicant shall pay the required fee and submit or cause to be submitted evidence satisfactory to the Board, on forms provided by the Board, that the applicant meets the following criteria:
* * * * * (4) Has passed the licensure examination or has qualified for a waiver of the licensure examination under § 42.12 (relating to waiver of licensure examination).
(5) Has completed 3 hours of approved training in child abuse recognition and reporting in accordance with § 42.48 (relating to child abuse recognition and reporting—mandatory training requirement).
(b) In addition to the requirements in subsection (a), an applicant for an occupational therapist license shall submit one of the following:
(1) Proof that the applicant has professional liability insurance as set forth in § 42.61 (relating to professional liability insurance requirement).
* * * * * § 42.14. Foreign-educated applicants.
(a) To apply for licensure, the foreign-educated applicant shall, before examination, submit or cause to be submitted evidence to the Board, on forms provided by the Board, that the applicant meets the following requirements:
(1) Is of good moral character.
(2) Has completed educational requirements substantially equal to § 42.13(2) (relating to application for licensure). The Board will accept a credentials evaluation done by the NBCOT as proof that the foreign-educated applicant has completed the educational requirements.
(3) Has completed 3 hours of approved training in child abuse recognition and reporting in accordance with § 42.48 (relating to child abuse recognition and reporting—mandatory training requirement).
(b) The foreign-educated applicant may be licensed by the Board if the applicant has complied with subsection (a) and has met one of the following criteria:
(1) Passed the licensure examination.
(2) Qualified for a waiver of the licensure examination under § 42.12 (relating to waiver of licensure examination).
* * * * * § 42.15. Application for temporary license.
* * * * * (d) In addition to the requirements in subsection (a) or (c), an applicant for a temporary license as an occupational therapist shall submit one of the following:
(1) Proof that the applicant has professional liability insurance as set forth in § 42.61 (relating to professional liability insurance requirement).
(2) A letter from the applicant's insurance carrier indicating that the applicant will be covered against professional liability in the amount specified in § 42.61(a) upon the issuance of the applicant's temporary license.
(3) A certification from the applicant indicating that the applicant will be covered by an employer against professional liability in the amount specified in § 42.61(a) effective upon the beginning of employment, provided that the applicant does not practice occupational therapy prior to the beginning of employment.
(e) In addition to the requirements in subsection (a) or (c), an applicant for a temporary license as an occupational therapist shall complete, as a condition of licensure, 3 hours of approved training in child abuse recognition and reporting in accordance with § 42.48 (relating to child abuse recognition and reporting—mandatory training requirement).
§ 42.16. Biennial renewal; inactive status; failure to renew.
* * * * * (c) To retain the right to engage in practice, the licensee shall renew the licensee's license biennially as follows:
(1) An occupational therapist shall complete the biennial renewal application, pay the required fee, certify completion of the continued competence requirement as specified in § 42.53 (relating to continued competency requirements), submit or cause to be submitted documentation verifying the completion of at least 2 hours of approved continuing education in child abuse recognition and reporting in accordance with § 42.48(b) (relating to child abuse recognition and reporting—mandatory training requirement) and certify maintenance of the required professional liability insurance coverage as specified in § 42.61 (relating to professional liability insurance requirement) which must include the insurance company name and policy number, as applicable.
(2) An occupational therapy assistant shall complete the biennial renewal application, pay the required fee [and], certify completion of the continued competence requirement as specified in § 42.53 and submit or cause to be submitted documentation verifying the completion of at least 2 hours of approved continuing education in child abuse recognition and reporting in accordance with § 42.48(b) (relating to child abuse recognition and reporting—mandatory training requirement).
* * * * * (g) A licensee who is applying to return to active status is required to pay fees which are due and submit or cause to be submitted all of the following:
(1) A sworn statement stating the period of time during which the licensee was not engaged in practice in this Commonwealth.
(2) A resume of professional activities since the most recent licensure.
(3) A letter of good standing from another state or territory where the licensee is currently licensed or registered to practice, if applicable.
(4) Proof of professional liability insurance coverage as set forth in § 42.61 if applying to reactivate an occupational therapist license.
(5) Verification of completion of at least 2 hours of approved continuing education in child abuse recognition and reporting in accordance with § 42.48(b) (relating to child abuse recognition and reporting—mandatory training requirement).
(h) The applicant for licensure renewal will not be assessed a fee or penalty for preceding biennial periods in which the applicant did not engage in practice in this Commonwealth.
* * * * *
CHILD ABUSE REPORTING REQUIREMENTS § 42.41. Definitions relating to child abuse reporting requirements.
The following words and terms, when used in this section and §§ 42.42—[42.47] 42.49 (relating to child abuse reporting requirements), have the following meanings, unless the context clearly indicates otherwise:
Bodily injury—Impairment of physical condition or substantial pain.
Bureau—Bureau of Professional and Occupational Affairs within the Department of State of the Commonwealth.
Child—An individual under 18 years of age.
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.]
Intentionally, knowingly or recklessly doing any of the following:
(i) Causing bodily injury to a child through any recent act or failure to act.
(ii) Fabricating, feigning or intentionally exaggerating or inducing a medical symptom or disease which results in a potentially harmful medical evaluation or treatment to the child through any recent act.
(iii) Causing or substantially contributing to serious mental injury to a child through any act or failure to act or a series of these acts or failures to act.
(iv) Causing sexual abuse or exploitation of a child through any act or failure to act.
(v) Creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act.
(vi) Creating a likelihood of sexual abuse or exploitation of a child through any recent act or failure to act.
(vii) Causing serious physical neglect of a child.
(viii) Engaging in any of the following recent acts:
(A) Kicking, biting, throwing, burning, stabbing or cutting a child in a manner that endangers the child.
(B) Unreasonably restraining or confining a child, based on consideration of the method, location or duration of the restraint or confinement.
(C) Forcefully shaking a child under 1 year of age.
(D) Forcefully slapping or otherwise striking a child under 1 year of age.
(E) Interfering with the breathing of a child.
(F) Causing a child to be present at a location while a violation of 18 Pa.C.S. § 7508.2 (relating to operation of methamphetamine laboratory) is occurring, provided that the violation is being investigated by law enforcement.
(G) Leaving a child unsupervised with an individual, other than the child's parent, who the actor knows or reasonably should have known:
(I) Is required to register as a Tier II or Tier III sexual offender under 42 Pa.C.S. Chapter 97, Subchapter H (relating to registration of sexual offenders), when the victim of the sexual offense was under 18 years of age when the crime was committed.
(II) Has been determined to be a sexually violent predator under 42 Pa.C.S. § 9799.24 (relating to assessments) or any of its predecessors.
(III) Has been determined to be a sexually violent delinquent child as defined in 42 Pa.C.S. § 9799.12 (relating to definitions).
(IV) Has been determined to be a sexually violent predator under 42 Pa.C.S. § 9799.58 (relating to assessments) or has to register for life under 42 Pa.C.S. § 9799.55(b) (relating to registration).
(ix) Causing the death of the child through any act or failure to act.
(x) Engaging a child in a severe form of trafficking in persons or sex trafficking, as those terms are defined under section 103 of the Trafficking Victims Protection Act of 2000 (Division A of Pub.L. No. 106-386).
ChildLine—An organizational unit of the Department of [Public Welfare,] Human Services, 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.]
Mandated reporter—A person who is required under 23 Pa.C.S. § 6311 (relating to persons required to report suspected child abuse) to make a report of suspected child abuse. For purposes of this chapter, the term includes licensed occupational therapists and occupational therapy assistants.
Parent—A biological parent, adoptive parent or legal guardian.
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.] A person who has committed child abuse as defined in this section. The following apply:
(i) This term includes only the following:
(A) A parent of the child.
(B) A spouse or former spouse of the child's parent.
(C) A paramour or former paramour of the child's parent.
(D) An individual 14 years of age or older who is a person responsible for the child's welfare or who has direct contact with children as an employee of child-care services, a school or through a program, activity or service.
(E) An individual 14 years of age or older who resides in the same home as the child.
(F) An individual 18 years of age or older does not reside in the same home as the child but is related within the third degree of consanguinity or affinity by birth or adoption to the child.
(G) An individual 18 years of age or older who engages a child in severe forms of trafficking in persons or sex trafficking, as those terms are defined under section 103 of the Trafficking Victims Protection Act of 2000 (Division A of Pub.L. No. 106-386).
(ii) Only the following may be considered a perpetrator for failing to act, as provided in this section:
(A) A parent of the child.
(B) A spouse or former spouse of the child's parent.
(C) A paramour or former paramour of the child's parent.
(D) A person responsible for the child's welfare who is 18 years of age or older.
(E) An individual 18 years of age or older who resides in the same home as the child.
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.]
Program, activity or service—Any of the following in which children participate and which is sponsored by a school or a public or private organization:
(i) A youth camp or program.
(ii) A recreational camp or program.
(iii) A sports or athletic program.
(iv) A community or social outreach program.
(v) An enrichment or educational program.
(vi) A troop, club or similar organization.
Recent [acts or omissions—Acts or omissions] act or failure to act—An act or failure to act committed within 2 years of the date of the report to the Department of [Public Welfare] Human Services 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.]
Serious physical neglect—Any of the following when committed by a perpetrator that endangers a child's life or health, threatens a child's well-being, causes bodily injury or impairs a child's health, development or functioning:
(i) A repeated, prolonged or egregious failure to supervise a child in a manner that is appropriate considering the child's developmental age and abilities.
(ii) The failure to provide a child with adequate essentials of life, including food, shelter or medical care.
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, including photographing, videotaping, computer depicting or filming, of sexually explicit conduct or the rape, sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, molestation, incest, indecent exposure, prostitution, statutory sexual assault or other form of sexual exploitation of children.] Any of the following:
(i) The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct, which includes the following:
(A) Looking at sexual or other intimate parts of a child or another individual for the purpose of arousing or gratifying sexual desire in any individual.
(B) Participating in sexually explicit conversation either in person, by telephone, by computer or by a computer-aided device for the purpose of sexual stimulation or gratification of any individual.
(C) Actual or simulated sexual activity or nudity for the purpose of sexual stimulation or gratification of any individual.
(D) Actual or simulated sexual activity for the purpose of producing visual depiction, including photographing, videotaping, computer depicting or filming.
(ii) Any of the following offenses committed against a child:
(A) Rape as defined in 18 Pa.C.S. § 3121 (relating to rape).
(B) Statutory sexual assault as defined in 18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).
(C) Involuntary deviate sexual intercourse as defined in 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).
(D) Sexual assault as defined in 18 Pa.C.S. § 3124.1 (relating to sexual assault).
(E) Institutional sexual assault as defined in 18 Pa.C.S. § 3124.2 (relating to institutional sexual assault).
(F) Aggravated indecent assault as defined in 18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
(G) Indecent assault as defined in 18 Pa.C.S. § 3126 (relating to indecent assault).
(H) Indecent exposure as defined in 18 Pa.C.S. § 3127 (relating to indecent exposure).
(I) Incest as defined in 18 Pa.C.S. § 4302 (relating to incest).
(J) Prostitution as defined in 18 Pa.C.S. § 5902 (relating to prostitution and related offenses).
(K) Sexual abuse as defined in 18 Pa.C.S. § 6312 (relating to sexual abuse of children).
(L) Unlawful contact with a minor as defined in 18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
(M) Sexual exploitation as defined in 18 Pa.C.S. § 6320 (relating to sexual exploitation of children).
(iii) For the purposes of subparagraph (i), the term does not include consensual activities between a child who is 14 years of age or older and another person who is 14 years of age or older and whose age is within 4 years of the child's age.
§ 42.42. Suspected child abuse—mandated reporting requirements.
(a) General rule.
(1) Under 23 Pa.C.S. § 6311 (relating to persons required to report suspected child abuse), licensees [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 a victim of child abuse.] of the Board are considered mandated reporters. A mandated reporter shall make a report of suspected child abuse in accordance with this section if the licensee has reasonable cause to suspect that a child is a victim of child abuse under any of the following circumstances:
(i) The mandated reporter comes into contact with the child in the course of employment, occupation and practice of the profession or through a regularly scheduled program, activity or service.
(ii) The mandated reporter is directly responsible for the care, supervision, guidance or training of the child, or is affiliated with an agency, institution, organization, school, regularly established church or religious organization or other entity that is directly responsible for the care, supervision, guidance or training of the child.
(iii) A person makes a specific disclosure to the mandated reporter that an identifiable child is the victim of child abuse.
(iv) An individual 14 years of age or older makes a specific disclosure to the mandated reporter that the individual has committed child abuse.
(2) Nothing in this subsection shall require a child to come before the mandated reporter in order for the mandated reporter to make a report of suspected child abuse.
(3) Nothing in this subsection shall require the mandated reporter to take steps to identify the person responsible for the child abuse, if unknown, in order for the mandated reporter to make a report of suspected child abuse.
(b) Staff members of public or private agencies, institutions and facilities. [Licensees 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 a victim of child abuse. Upon notification by the licensee, 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).] Whenever a licensee is required to make a report under subsection (a) in the capacity as a member of the staff of a medical or other public or private institution, school, facility or agency, that licensee shall report immediately in accordance with subsection (c) and shall immediately thereafter notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge.
(c) Reporting procedure. [Reports of suspected child abuse shall be made by telephone and by written report.
(1) Oral reports. Oral reports of suspected child abuse shall be made immediately by telephone to ChildLine, (800) 932-0313.
(2) Written reports. Written reports shall be made within 48 hours after the oral report is made by telephone. Written reports shall be made on forms available from a county children and youth social service agency.]
A licensee shall immediately make a report of suspected child abuse to the Department of Human Services by either:
(1) Making an oral report of suspected child abuse by telephone to ChildLine at (800) 932-0313, followed by a written report within 48 hours to the Department of Human Services or the county agency assigned to the case in a manner and format prescribed by the Department of Human Services. The written report submitted under this subparagraph may be submitted electronically.
(2) Making an electronic report of suspected child abuse in accordance with 23 Pa.C.S. § 6305 (related to electronic reporting) through the Department of Human Service's Child Welfare Information Solution self-service portal at www.compass.state.pa.us/cwis. A confirmation by the Department of Human Services of the receipt of a report of suspected child abuse submitted electronically relieves the mandated reporter of the duty to make an additional oral or written report.
(d) Written or electronic reports. [Written reports shall be made in the manner and on forms prescribed by the Department of Public Welfare.] The following information shall be included in the written or electronic reports, if [available] known:
(1) The names and addresses of the child [and], the child's parents [or] and any other person responsible for the [care of the child, if known] child's welfare.
(2) Where the suspected child abuse occurred.
(3) The age and sex of [the subjects] each subject of the report.
(4) The nature and extent of the suspected child abuse including any evidence of prior abuse to the child or [siblings] any sibling of the child.
(5) The name and relationship of [the persons] each individual responsible for causing the suspected abuse and any evidence of prior abuse by [those persons] each individual.
(6) Family composition.
(7) The source of the report.
(8) The name, telephone number and e-mail address of the person making the report [and where that person can be reached].
(9) The actions taken by the [reporting source] person making the report, including [the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner] actions taken under 23 Pa.C.S. §§ 6314—6317.
(9.1) Other information required by Federal law or regulation.
(10) Other information which the Department of [Public Welfare] Human Services may require by regulation.
§ 42.43. Photographs, medical tests and X-rays of a child subject to report.
A licensee 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 within 48 hours after an electronic report is made under § 42.42(c)(2) (relating to suspected child abuse—mandated reporting requirements), or as soon thereafter as possible. The county children and youth social service agency shall have access to actual photographs or duplicates and X-rays and may obtain them or duplicates of them upon request. Medical summaries or reports of the photographs, X-rays and relevant medical tests shall be made available to law enforcement officials in the course of investigating cases under 23 Pa.C.S. § 6340(a)(9) or (10) (relating to release of information in confidential reports).
§ 42.44. Suspected death as a result of child abuse—mandated reporting requirement.
A licensee who has reasonable cause to suspect that a child died as a result of child abuse shall report that suspicion to the coroner or medical examiner of the county where death occurred or, in the case where the child is transported to another county for medical treatment, to the coroner or medical examiner of the county where the injuries were sustained.
§ 42.45. Immunity from liability.
Under 23 Pa.C.S. § 6318 (relating to immunity from liability), a licensee who participates in good faith in the making of a report of suspected child abuse, making a referral for general protective services, cooperating or consulting with an investigation including providing information to a child fatality or near fatality review team, testifying in a proceeding arising out of an instance of suspected child abuse or general protective services or [the taking of photographs] engaging in any action authorized under 23 Pa.C.S. §§ 6314—6317, shall have immunity from civil and criminal liability that might otherwise result by reason of the licensee's actions. For the purpose of any civil or criminal proceeding, the good faith of the licensee shall be presumed. The Board will uphold the same good faith presumption in any disciplinary proceeding that might result by reason of a licensee'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] under §§ 42.42—42.44 (relating to suspected child abuse—mandated reporting requirements; photographs, medical tests and X-rays of a child subject to report; and suspected death as a result of child abuse—mandated reporting requirement).
§ 42.46. Confidentiality—waived.
To protect children from abuse, the reporting requirements of §§ 42.42—42.44 (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) take precedence over provisions in § 42.24(1)(iv) (relating to code of ethics) and any other client confidentiality, ethical principle or professional standard that might otherwise apply. In accordance with 23 Pa.C.S. § 6311.1 (relating to privileged communications), privileged communications between a mandated reporter and a patient/client does not apply to a situation involving child abuse and does not relieve the mandated reporter of the duty to make a report of suspected child abuse.
§ 42.47. Noncompliance.
(a) Disciplinary action. A licensee who willfully fails to comply with the reporting requirements in §§ 42.42—42.44 (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 16 of the act (63 P.S. § 1516).
(b) Criminal penalties. [Under 23 Pa.C.S. § 6319 (relating to penalties for failure to report), a licensee 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.] Under 23 Pa.C.S. § 6319 (relating to penalties), a licensee who is required to report a case of suspected child abuse or to make a referral to the appropriate authorities, and who willfully fails to do so, commits a criminal offense, as follows:
(1) An offense not otherwise specified in paragraphs (2), (3) or (4) is a misdemeanor of the second degree.
(2) An offense is a felony of the third degree if all of the following apply:
(i) The mandated reporter willfully fails to report.
(ii) The child abuse constitutes a felony of the first degree or higher.
(iii) The mandated reporter has direct knowledge of the nature of the abuse.
(3) If the willful failure to report continues while the mandated reporter knows or has reasonable cause to suspect a child is being subjected to child abuse by the same individual, or while the mandated reporter knows or has reasonable cause to suspect that the same individual continues to have direct contact with children through the individual's employment, program, activity or service, the mandated reporter commits a felony of the third degree, except that if the child abuse constitutes a felony of the first degree or higher, the mandated reporter commits a felony of the second degree.
(4) A mandated reporter who, at the time of sentencing for an offense under 23 Pa.C.S. § 6319, has been convicted of a prior offense under 23 Pa.C.S. § 6319, commits a felony of the third degree, except that if the child abuse constitutes a felony of the first degree or higher, the penalty for the second or subsequent offense is a felony of the second degree.
(Editor's Note: The following sections are proposed to be added and are printed in regular type to enhance readability.)
§ 42.48. Child abuse recognition and reporting—mandatory training requirements.
(a) Except as provided in subsection (c), individuals applying to the Board for a license shall complete, as a condition of licensure, at least 3 hours of training in child abuse recognition and reporting requirements which has been approved by the Department of Human Services and the Bureau, as set forth in § 42.49 (relating to child abuse recognition and reporting course approval process). The applicant shall certify on the application that the applicant has either completed the required training or has been granted an exemption under subsection (c). The Board will not issue a license unless the Bureau has received an electronic report from an approved course provider documenting the attendance/participation by the applicant or the applicant has obtained an exemption under subsection (c).
(b) Except as provided in subsection (c), licensees seeking renewal of a license issued by the Board shall complete, as a condition of biennial renewal of the license, at least 2 hours of approved continuing education in child abuse recognition and reporting, as a portion of the total continuing education required for biennial renewal. For credit to be granted, the continuing education course or program must be approved by the Bureau, in consultation with the Department of Human Services, as set forth in § 42.49. The Board will not renew a license unless the Bureau has received an electronic report from an approved course provider documenting the attendance/participation by the licensee in an approved course within the applicable biennial renewal period or the licensee has obtained an exemption under subsection (c). If a licensee holds a license issued by another licensing Board within the Bureau that also requires mandatory training in child abuse recognition and reporting, credit for completion of an approved course will be applied to both licenses.
(c) An applicant or licensee may apply in writing for an exemption from the training/continuing education requirements set forth in subsections (a) and (b) provided the applicant or licensee meets one of the following:
(1) The applicant or licensee submits documentation demonstrating all of the following:
(i) The applicant or licensee has already completed child abuse recognition training as required by section 1205.6 of the Public School Code of 1949 (24 P.S. § 12-1205.6).
(ii) The training was approved by the Department of Education in consultation with the Department of Human Services.
(iii) The amount of training received equals or exceeds the amount of training or continuing education required under subsection (a) or (b), as applicable.
(iv) For purposes of licensure renewal, the training must have been completed during the relevant biennial renewal period.
(2) The applicant or licensee submits documentation demonstrating all of the following:
(i) The applicant or licensee has already completed child abuse recognition training required by 23 Pa.C.S. § 6383(c) (relating to education and training).
(ii) The training was approved by the Department of Human Services.
(iii) The amount of training received equals or exceeds the amount of training or continuing education required under subsection (a) or (b), as applicable.
(iv) For purposes of licensure renewal, the training must have been completed during the relevant biennial renewal period.
(3) The applicant or licensee submits documentation acceptable to the Board demonstrating why the applicant or licensee should not be subject to the training or continuing education requirement. The Board will not grant an exemption based solely upon proof that children are not a part of the applicant's or licensee's practice. Each request for an exemption under this paragraph will be considered on a case-by-case basis. The Board may grant the exemption if it finds that the completion of the training or continuing education requirement is duplicative or unnecessary under the circumstances.
(d) Exemptions granted under subsection (c) are applicable only for the biennial renewal period for which the exemption is requested. If an exemption is granted, the Board will issue or renew the license, as applicable. If an exemption is denied, the Board will e-mail the applicant or licensee a notice notifying them of the need to either complete an approved course.
§ 42.49. Child abuse recognition and reporting course approval process.
(a) An individual, entity or organization may apply for approval to provide mandated reporter training as required under 23 Pa.C.S. § 6383(b) (relating to education and training) by submitting the course materials set forth in subsection (b) simultaneously to the Department of Human Services, Office of Children, Youth and Families, and to the Bureau at the following addresses:
(1) Department of Human Services, Office of Children, Youth and Families, Health and Welfare Building, 625 Forster Street, Harrisburg, PA 17120; or electronically at RA-PWOCYFCPSL@pa.gov.
(2) Bureau of Professional and Occupational Affairs, 2601 North Third Street, P.O. Box 2649, Harrisburg, PA 17105-2649; or electronically at RA-stcpsl_course_app@ pa.gov.
(b) Submissions must include all of the following:
(1) Contact information (mailing address, e-mail address and telephone number) for the agency/course administrator.
(2) General description of the training and course delivery method.
(3) Title of the course.
(4) Timed agenda and estimated hours of training.
(5) Learning objectives.
(6) Intended audience.
(7) All course related materials, including as applicable:
(i) Handouts.
(ii) Narrated script or talking points.
(iii) Interactive activities or exercises.
(iv) Videos and audio/visual content.
(v) Knowledge checks, quizzes or other means of assessing participant's understanding of the material.
(vi) For online courses, a transcript or recording of audio training.
(8) Citation of sources, including written permission to use copyrighted material, if applicable.
(9) Anticipated credentials or experience of the presenter, or biography of presenter, if known.
(10) Printed materials used to market the training.
(11) Evaluation used to assess participants' satisfaction with the training.
(12) Sample certificate of attendance/participation, which must include:
(i) Name of participant.
(ii) Title of training.
(iii) Date of training.
(iv) Length of training (2 or 3 hours).
(v) Name and signature of the authorized representative of the provider. The signature may be an electronic signature.
(vi) Statement affirming the participant attended the entire course.
(13) Verification of ability to report participation/attendance electronically to the Bureau in a format prescribed by the Bureau.
(c) The Bureau will notify the individual, entity or organization in writing upon approval of the course and will post a list of approved courses on the Bureau's web site and the Board's web site.
CONTINUED COMPETENCY § 42.53. Continued competency requirements.
(a) Beginning with the July 1, 2013—June 30, 2015, biennium, an occupational therapist shall complete a minimum of 24 contact hours in each biennial period in acceptable continued competency activities listed in § 42.55 (relating to acceptable continued competency activities) as a condition of licensure renewal. Beginning with the July 1, 2019—June 30, 2021, biennium, an occupational therapy assistant shall complete a minimum of 24 contact hours in each biennial period in acceptable continued competency activities listed in § 42.55 as a condition of licensure renewal. At least 2 of the required 24 hours shall be completed in child abuse recognition and reporting in accordance with § 42.48 (relating to child abuse recognition and reporting—mandatory training requirement).
(b) [A] With the limited exception of the 2 hours of mandated training in child abuse recognition and reporting, a licensee is exempt from complying with subsection (a) for the first biennial renewal period following initial licensure.
(c) A licensee seeking to reactivate a lapsed or inactive license shall show compliance with the continued competency contact hour requirement, including at least 2 hours of training in child abuse recognition and reporting, during the 2-year period immediately preceding application for reactivation.
(d) As a condition of reinstatement, a licensee whose license has been suspended or revoked shall complete the required continued competency contact hours for each licensure biennium in which the license was suspended or revoked, including at least 2 hours of approved training in child abuse recognition and reporting.
[Pa.B. Doc. No. 22-1608. Filed for public inspection October 21, 2022, 9:00 a.m.]
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