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PA Bulletin, Doc. No. 18-291

PROPOSED RULEMAKING

STATE BOARD OF DENTISTRY

[ 49 PA. CODE CH. 33 ]

Child Abuse Reporting Requirements

[48 Pa.B. 1179]
[Saturday, February 24, 2018]

 The State Board of Dentistry proposes to amend §§ 33.1, 33.250—33.255 and 33.401 and add §§ 33.252a, 33.256 and 33.257 (relating to mandatory reporting of children under 1 year of age; child abuse recognition and reporting—mandatory training requirement; 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 final-form publication in the Pennsylvania Bulletin.

Statutory Authority

 Section 3(o) of The Dental Law (63 P.S. § 122(o)) sets forth the Board's general rulemaking authority. Under sections 6301—6386 of 23 Pa.C.S. (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 Board-regulated practitioners.

Background and purpose

 Throughout 2014, and continuing in 2015 and 2016, the General Assembly made numerous amendments to the CPSL, including 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 all persons applying for a license, or applying for renewal of a license, on or after January 1, 2015. The Board implemented the training requirements as mandated by Act 31 at the beginning of 2015. This proposed rulemaking is required to update the Board's existing regulations on the subject of child abuse reporting to be consistent with the CPSL.

Description of the Proposed Amendments

 The Board proposes to amend § 33.1 (relating to definitions) to update the definitions of terms used in the CPSL. Specifically, the Board finds it necessary to add definitions of ''bodily injury,'' ''child,'' ''parent,'' ''program, activity or service'' and ''serious physical neglect'' and to amend the definitions of ''child abuse,'' ''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 proposes to define ''mandated reporter'' for ease of reference. All Board regulated practitioners are considered mandated reporters under the CPSL.

 The Board further proposes to delete the following definitions because either they have been deleted from the CPSL or, although they remain in the CPSL, they are no longer used in the Board's regulations: ''individual residing in the same home as the child,'' ''perpetrator'' and ''serious physical injury.'' The Board also proposes to amend, where necessary throughout this proposed rulemaking, ''Department of Public Welfare'' to ''Department of Human Services,'' as the name of the agency has changed. The Board proposes to amend the definition of ''Board regulated practitioner'' to include restricted faculty license holders, a new category of licensee added by the act of July 2, 2014 (P.L. 828, No. 89). The Board is in the process of promulgating a separate rulemaking which includes provisions regarding restricted faculty licenses.

 Although section 6311(a)(12) of the CPSL (relating to persons required to report suspected child abuse) provides that ''[a]n individual supervised or managed by a person'' licensed or certified to practice in any health-related field under the jurisdiction of the Department of State (such as a dental assistant or other unlicensed staff supervised or managed by a Board regulated practitioner) who has direct contact with children in the course of employment is considered a mandated reporter, the definition of ''Board regulated practitioner'' was not amended to include those individuals because the Board does not otherwise regulate these individuals and cannot enforce the requirements of the CPSL as to unlicensed/uncertified persons. However, the Board reminds its licensees and certificateholders that individuals they supervise or manage who have direct contact with children in the course of their employment are considered mandated reporters and should be aware of the reporting requirements under the CPSL.

 The Board is proposing to amend § 33.250 (relating to suspected child abuse—mandated reporting requirements) to provide the general rule that all Board regulated practitioners are considered mandated reporters, and to set forth the mandated reporting requirements and reporting procedures in section 6311 of the CPSL and section 6313 of the CPSL (relating to reporting procedure). The Department of Human Services (Department) has implemented an electronic reporting process for mandated reporters, and the Board finds it necessary to amend § 33.251 (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).

 The Board proposes to amend § 33.252 (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 appropriate coroner or medical examiner. The Board also proposes to add § 33.252a to incorporate the amendment to section 6386 of the CPSL (relating to mandatory reporting of children under one year of age). The Board proposes to add § 33.252a because, although the Board believes it would be an extremely rare situation for a Board regulated practitioner to be treating a child under 1 year of age who is affected by drugs or alcohol, the amendments to section 6386 of the CPSL refer specifically to ''a health care provider'' and that term is defined in section 6303 of the CPSL (relating to definitions) as a ''licensed hospital or health care facility or person who is licensed, certified or otherwise regulated to provide health care services under the laws of this Commonwealth, including a. . .dentist.'' Under the canons of statutory construction, ''including'' is to be read as ''including, but not limited to'' and for that reason the Board has included all Board regulated practitioners as subject to this section.

 Further, the Board is proposing to amend § 33.253 (relating to immunity from liability) to incorporate amendments to section 6318 of the CPSL (relating to immunity from liability). The Board is proposing to amend § 33.254 (relating to confidentiality—waived) to incorporate the provisions of section 6311.1 of the CPSL (relating to privileged communications), which was added in 2014. Likewise, the Board proposes to amend § 33.255 (relating to noncompliance) to update the criminal penalties for failure to make a required report to conform to the increased criminal penalties in the amendments to section 6319 of the CPSL (relating to penalties).

 The Board proposes to add two new sections pertaining to the mandatory training requirements in Act 31.

 Proposed § 33.256 sets forth the requirements in section 6383(b) of the CPSL that all individuals applying to the Board for an initial license or certificate are required to complete 3 hours of training in child abuse recognition and reporting which has been approved by the Department and that all licensees and certificateholders seeking renewal of a license or certificate complete 2 hours of continuing education in child abuse recognition and reporting as a requirement of renewal. The Board also would 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)(3)(ii) of the CPSL.

 Proposed § 33.256 would also include the process for applying for an exemption from these requirements as set forth in section 6383(b)(4) and (6) of the CPSL for individuals who have already completed similar training or should otherwise not be subject to the training or continuing education requirement. 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 not a 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 a dentist 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 proposes to add § 33.257 to set forth the process developed by the Bureau of Professional and Occupational Affairs (Bureau), in conjunction with the Department, 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 shall 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. Then, at the time of renewal, the system verifies that the training was completed as required prior to renewing the license.

 The Board is proposing to amend § 33.401 (relating to credit-hour requirements) to incorporate the mandatory 2 hours of continuing education in child abuse recognition and reporting in proposed § 33.256 of the Board's continuing education regulations. It is important to note that the mandatory child abuse training is an exception to the Board's general rule that continuing education shall be taken in subject areas in § 33.402 (relating to continuing education subject areas) from a program sponsor in § 33.403 (relating to program sponsors). For this reason, the Board will only accept 2 hours of continuing education in the area of child abuse recognition and reporting so as not to dilute further the number of hours of general dental continuing education required by the Board.

Fiscal Impact and Paperwork Requirements

 The Board does not anticipate any significant fiscal impact or paperwork requirements regarding this proposed rulemaking. Because licensees and certificateholders are already required to complete mandatory continuing education, and these 2 hours are incorporated in the existing requirement, there would not be an increased burden. Only applicants for licensure or certification 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 Act 31 training providers are required to report attendance/participation electronically, there are no additional paperwork requirements imposed on licensees. In addition, the implementation of an electronic reporting system for mandatory reporters of child abuse under the CPSL by the Department 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, a sunset date has not been assigned.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on February 9, 2018, 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 the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and 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 comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must 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, suggestions or objections regarding this proposed rulemaking to Regulatory Counsel, Department of State, P.O. Box 69523, Harrisburg, PA 17106-9523, RA-STRegulatoryCounsel@pa.gov within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-4626 (Child Abuse Reporting Requirements) when submitting comments.

JOHN F. ERHARD, III, DDS, 
Chairperson

Fiscal Note: 16A-4626. 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 33. STATE BOARD OF DENTISTRY

Subchapter A. GENERAL PROVISIONS

§ 33.1. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

*  *  *  *  *

Board regulated practitioner—A dentist, restricted faculty license holder, dental hygienist, public health dental hygiene practitioner or expanded function dental assistant.

Bodily injury—Impairment of physical condition or substantial pain.

Bureau—The Bureau of Professional and Occupational Affairs of the Commonwealth.

[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.]

Child—An individual under 18 years of age.

Child abuse—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 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.

(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.

(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).

(H) Causing the death of the child through any act or failure to act.

(I) Engaging a child in a severe form of trafficking in persons or sex trafficking, as those terms are defined under section 103 of the Victims of Trafficking and Violence Protection Act of 2000 (22 U.S.C.A. § 7102).

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.

*  *  *  *  *

General supervision—In a dental facility, supervision by a dentist who examines the patient, develops a treatment plan, authorizes the performance of dental hygiene services to be performed within 1 year of the examination, and takes full professional responsibility for the performance of the dental hygienist. In facilities identified in § 33.205(c)(2) and (3) (relating to practice as a dental hygienist), general supervision is defined in § 33.205 (d)(2).

[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.]

Individual study—A course of continuing education offered by an approved program sponsor, which permits the participant to learn without interacting with an instructor or interactive learning methodologies and which requires a passing grade on a written examination or workbook.

Local anesthesia—The elimination of sensations, especially pain, in one part of the body by regional injection of an anesthetic agent.

[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.]

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 all Board regulated practitioners.

Parent—A biological parent, adoptive parent or legal guardian.

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 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.

Program sponsor—The party approved by the Board who is responsible for the development and presentation of the continuing dental education program.

Public health dental hygiene practitioner—A licensed dental hygienist who is certified by the Board as having met the requirements of section 11.9 of the act (63 P.S. § 130j), and who is authorized to perform dental hygiene services in accordance with § 33.205b (relating to practice as a public health dental hygiene practitioner) without the authorization, assignment or examination of a dentist.

Recent [acts or omissionsActs 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 any of the following:

(A) Looking at the 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.

Sexual misconduct—Any conduct with a current patient, including words, gestures or expressions, actions or any combination thereof, which is sexual in nature, or which may be construed by a reasonable person as sexual in nature.

Subgingival agents—Therapeutic agents, including antimicrobials, antibiotics, antiseptics or anesthetics, placed below the free margin of the gingiva by a local delivery system or device, including injectable systems for ointments, gels or pastes, and degradable or nondegradable devices, such as fibers, films, strips, slabs, spheres, discs or chips.

Subchapter C. MINIMUM STANDARDS OF CONDUCT AND PRACTICE

§ 33.250. Suspected child abuse—mandated reporting requirements.

 (a) General rule. Under 23 Pa.C.S. § 6311 (relating to persons required to report suspected child abuse), all Board regulated practitioners [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] are considered man- dated reporters. A mandated reporter shall make a report of suspected child abuse in accordance with this section if the mandated reporter has reasonable cause to suspect that a child is a victim of child abuse under any of the following circumstances:

(1) 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.

(2) 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.

(3) A person makes a specific disclosure to the mandated reporter that an identifiable child is the victim of child abuse.

(4) An individual 14 years of age or older makes a specific disclosure to the mandated reporter that the individual has committed child abuse.

 (b) Staff members of public or private agencies, institutions and facilities. [Board regulated practitioners who are staff members of a dental 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 Board regulated practitioner, 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).] When a Board regulated practitioner is required to make a report under subsection (a) in the capacity as a member of the staff of a medical, dental, or other public or private institution, school, facility or agency, that Board regulated practitioner 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 mandated reporter 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 paragraph 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 reports, if available:] A written or electronic report of suspected child abuse must include the following information, if known:

 (1) The names and addresses of the child [and the parents or], the child's parents 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 subject or subjects of the report.

 (4) The nature and extent of the suspected child abuse, including any evidence of prior abuse to the child or siblings of the child.

 (5) The name and relationship of the person or persons responsible for causing the suspected abuse[, if known,] and any evidence of prior abuse by those persons.

 (6) Family composition.

 (7) The source of the report.

[(8) The person making the report and where that person can be reached.

(9) The actions taken by the reporting source, including the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner.

(10) Other information which the Department of Public Welfare may require by regulation.]

(8) The name, telephone number and e-mail address of the person making the report.

(9) The actions taken by the person making the report, including actions taken under 23 Pa.C.S. §§ 6314—6317.

(10) Other information required by Federal law or regulation.

(11) Other information that the Department of Human Services may require by regulation.

§ 33.251. Photographs, medical tests and X-rays of child subject to report.

 A Board regulated practitioner 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 § 33.250(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.

§ 33.252. Suspected death as a result of child abuse—mandated reporting requirement.

 A Board regulated practitioner 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.

 (Editor's Note: The following section is proposed to be added and printed in regular type to enhance readability.)

§ 33.252a. Mandatory reporting of children under 1 year of age.

 A Board regulated practitioner shall immediately make a report to the appropriate county agency if the Board regulated practitioner is involved in the care of a child under 1 year of age who is born and identified as being affected by any of the following:

 (1) Illegal substance abuse by the child's mother.

 (2) Withdrawal symptoms resulting from prenatal drug exposure unless the child's mother, during the pregnancy, was:

 (i) Under the care of a prescribing medical professional.

 (ii) In compliance with the directions for the administration of a prescription drug as directed by the prescribing medical professional.

 (3) A fetal alcohol spectrum disorder.

§ 33.253. Immunity from liability.

 Under 23 Pa.C.S. § 6318 (relating to immunity from liability) a Board regulated practitioner who participates in good faith in the making of a report[, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs] 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 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 Board regulated practitioner's actions. For the purpose of any civil or criminal proceeding, the good faith of the Board regulated practitioner shall be presumed. The Board will uphold the same good faith presumption in any disciplinary proceeding that might result by reason of a Board regulated practitioner'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 §§ 33.250—33.252a.

§ 33.254. Confidentiality—waived.

 To protect children from abuse, the reporting requirements of [§§ 33.250—33.252 (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)] §§ 33.250—33.252a take precedence over any other ethical principle or professional standard that might otherwise apply to a Board regulated practitioner. In accordance with 23 Pa.C.S. § 6311.1 (relating to privileged communications), privileged communications between a mandated reporter and a patient 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.

§ 33.255. Noncompliance.

 (a) Disciplinary action. A Board regulated practitioner who willfully fails to comply with the reporting requirements in [§ 33.250 (relating to suspected child abuse—mandated reporting requirements] §§ 33.250—33.252a will be subject to disciplinary action under section 4.1 of the act (63 P.S. § 123.1).

 (b) Criminal penalties. [Under 23 Pa.C.S. § 6319 (relating to penalties for failure to report), a Board regulated practitioner 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 Board regulated practitioner 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 paragraph (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 believe the child is actively being subjected to child abuse, the mandated reporter commits a misdemeanor of the first degree, except that if the child abuse constitutes a felony of the first degree or higher, the mandated reporter commits a felony of the third degree.

(4) A mandated reporter who commits a second or subsequent offense 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: Sections 33.256 and 33.257 are proposed to be added and printed in regular type to enhance readability.)

§ 33.256. Child abuse recognition and reporting—mandatory training requirement.

 (a) Except as provided in subsection (c), individuals applying to the Board for an initial license or certificate shall submit proof of completion of 3 hours of training in child abuse recognition and reporting requirements which has been approved by the Department of Human Services.

 (b) Except as provided in subsection (c), licensees and certificateholders seeking renewal of a license or certificate issued by the Board shall complete, as a condition of biennial renewal of the license or certificate, 2 hours of approved continuing education in child abuse recognition and reporting requirements, 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 § 33.257 (relating to child abuse recognition and reporting course approval process).

 (c) An applicant, licensee or certificateholder may apply in writing for an exemption from the training/continuing education requirements in subsections (a) and (b) provided the applicant, licensee or certificateholder meets one of the following:

 (1) The applicant, licensee or certificateholder submits documentation demonstrating all of the following:

 (i) The applicant, licensee or certificateholder has already completed child abuse recognition training as required under 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.

 (2) The applicant, licensee or certificateholder submits documentation demonstrating all of the following:

 (i) The applicant, licensee or certificateholder has already completed child abuse recognition training required under 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.

 (3) The applicant, licensee or certificateholder submits documentation demonstrating that the applicant, licensee or certificateholder should not be subject to the training or continuing education requirement. Each request for an exemption under this paragraph will be considered on a case-by-case basis.

§ 33.257. 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, Pennsylvania 17120 or electronically to RA-PWOCYFCPSL@pa.gov.

 (2) Bureau of Professional and Occupational Affairs, 2601 North Third Street, P.O. Box 2649, Harrisburg, Pennsylvania 17105-2649 or electronically to 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 applicant 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.

Subchapter F. CONTINUING DENTAL EDUCATION

§ 33.401. Credit-hour requirements.

*  *  *  *  *

 (b) [The] Except as provided in subsection (h), the required hours shall be taken in the subject areas listed in § 33.402 (relating to continuing education subject areas) from a program sponsor listed in § 33.403 (relating to program sponsors).

*  *  *  *  *

 (g) Exceptions are as follows:

 (1) An applicant is exempt from the continuing education requirement in subsection (a) for only the biennial period during which the applicant passed the licensure or certification examination.

 (2) An applicant who cannot meet the continuing education requirement due to illness, emergency or hardship may apply to the Board in writing for a waiver. The request [shall] must explain why compliance is impossible. Waiver requests will be evaluated by the Board on a case-by-case basis.

(h) All licensees and certificateholders shall complete 2 hours of the required hours of continuing education in approved courses on child abuse recognition and reporting as set forth in § 33.256 (relating to child abuse recognition and reporting—mandatory training requirement).

[Pa.B. Doc. No. 18-291. Filed for public inspection February 23, 2018, 9:00 a.m.]



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