In the heat of the summer, the Pennsylvania legislature quickly and quietly repaired the already recently-revised Child Protective Services Law. Like all such hasty fixes, not all loose ends are resolved. PTAs and parent volunteers horrified by the draconian requirements of the prior law get some relief, but it is still not the same world as when volunteering meant simply showing up. Below, a summary of the changes and what they mean to Pennsylvania’s public, charter and private schools.
Background “Clearances” Now Called “Certifications”
This change, while not substantive, is important, as it changes the familiar language. Be wary of potential confusion with what schools have previously known as “certifications,” i.e., teaching or other professional licensures. It may be wise in communications with volunteers and employees to call these “criminal history certifications” or “background certifications,” just to make the distinction clear.
Extension of Time for Volunteer Clearances, Between Mandatory Renewals
Where the former law required that all clearances be renewed every three years (36 months), the amended law extends this period to five years (60 months). This applies to volunteers as well as employees. Human resources personnel can breathe a sigh of relief… the new law requires that all school employees calculate the renewal date from the date of their oldest clearance. However the determination as to when the 60-month period starts remains confounding for volunteers, though, since the law appears to completely contradict itself.
Where discussing the 60-month timeframe for volunteers, the new law states that the clearances must be obtained 60 days “from the date of the person’s most recent certification.” In the last paragraph of the section, however, it states “[f]or renewals of certification required under this chapter, the date for required renewal under this section shall be from the date of the oldest certification.”
For those who do not currently have clearances, or whose clearances are more than 60 months old, employees have until December 31, 2015, to obtain them, and volunteers without clearances have until July 1, 2016 before they are due.
Big Changes for Volunteers
Mandated Child Abuse Reporting
Volunteers are now mandated reporters of child abuse if they are “an integral part of a regularly-scheduled program, activity or service” and are a “person responsible for a child’s welfare” or have “direct contract with children.” Prior to this, only a volunteer who “accepts responsibility for a child” was a mandated reporter.
Under the prior law, almost all volunteers were required to obtain clearances. The amendment reverses course significantly, however. Under the new law, volunteers need certifications (clearances) if they are responsible for a child’s welfare or have “direct volunteer contact with children.” This is a new term that differs significantly from the “direct contact with children” requirement that was previously applicable.
Under the new law, “direct volunteer contact” is defined as “care, supervision, guidance or control of children AND routine interaction with children.” Where the previous language required clearances from those with supervision, guidance or control of children or routine interaction with children, this new language does not require clearances from any volunteer unless they have “routine contact” with children.” (See “Routine Interaction with Children” section, below.)
So let’s break this down… Under the former law, a volunteer who only attended a single event where he or she would be in “supervision, guidance or control of children,” such as a field trip, would now not be required to have clearances, because of the fact that it was a single event and not “routine interaction.” Conversely, a volunteer who comes to the school several times a week to sell snacks at the soccer and baseball games, under the former law, would have needed clearances due to the routine contact but now does not, since that contact does not involve the “supervision, guidance or control” of the students.
There are, of course, many volunteers who will still need clearances, parents who regularly help supervise at band camps, assist teachers in the classrooms, or help out at multiple or overnight field trips.
There is one more important new distinction under the law with respect to the federal clearances (often referred to as the “FBI fingerprint” clearance). Under the former law, only those volunteers who had not lived in Pennsylvania for the past 10 years were required to obtain the FBI fingerprint clearance. Volunteers who have lived in PA are still required to produce the FBI clearance, but if they have obtained an FBI clearance at any time since becoming a PA resident, they need only provide a copy of that clearance. They would not, in that case, be required to obtain a new one.
“Routine Interaction With Children” Defined — (Finally!!)
It is the moment schools have been waiting for… the legislature finally provided a definition for the term “routine interaction,” which is now defined as “[r]egular and repeated contact that is integral to a person’s employment or volunteer responsibilities.” This is consistent with the DHS guidance from the early spring, which had already opined that the term did, in fact, require an integral relationship between the contact with children and the person’s actual duties.
We pointed out the discrepancy between the law and the state guidance in our January School Law Bullet, and the problem has now been resolved through the latest legislation.
Or has it? What does the term “integral” mean in this definition? Does it mean “necessary for the completion of the task”? Does it mean “heavily involves student contact”? Does it mean “student contact could not be avoided for the performance of this task”? Schools will simply need to wait and see how courts interpret this provision.
Strangely Vague New Clearance Analysis for School Employees
For school employees, the analysis has changed with regards to who does and does not require clearances. The term “direct contact with children” term still exists in its original form, but it is not applicable to most employees anymore. The analysis only now applies to “administrative or other support personnel.” All other employees are required to have clearances regardless of whether their position involves “direct contact with children.”
This change appears very minor, but it may be significant. If a school has employees on the payroll who do not interact with students and have never required clearances in the past because of that, but are not “administrative or other support personnel,” this new provision would require that they, too, obtain clearances.
Somewhat inscrutable is that the same modification has been made to the definition of “independent contractor.” Contractors that do not have direct contact with children now require clearances unless they qualify as “administrative or other support personnel.”
While it is certainly true that most regular school employees will likely have direct contact with children, many contractors do not and may be operating within the schools without clearances. Schools now need to carefully audit their employment and contractor files to determine whether clearances need to be added for any individuals.
So precisely who qualifies as “administrative or other support personnel”? The answer is unclear. We can presume that administrative assistants and other office staff members would fall under this description, but how far does the term “support” extend? Don’t all employees “support” the school in some way? Once again, only time (and the courts) will tell.
Note that the term “direct contact with children” has not changed, just its applicability. This is particularly important to note, as more school employees may need background checks under this law than under the School Code, which continues to apply the “direct contact with children” analysis to all employees. To be safe, it is a good idea for schools to consider requiring clearances for all school employees, just in case.
New Clarity Regarding School-Sponsored Community Services, Work-Study, Internships, Etc.
Many schools have inquired as to what they needed to do with students who go out into local businesses and organizations as part of a school-sponsored work-study or community service project. The new law clarifies the specific procedure for these students and adds a definitive requirement.
For internships, externships, work-study programs, co-ops or similar programs, a single adult, whom the employer and the school identify as the child’s supervisor and the person responsible for the child’s welfare while the child participates in the program with the employer, must obtain the required certifications (clearances) under the new rules.
Thus, for each minor student who goes to a business or organization that does not require clearances of all of its employees, schools will need to work with the business/organization to specifically identify a particular individual who will be the one responsible for the student. It is that individual who needs to have the clearances. The designated supervisor must “be in the immediate vicinity at regular intervals with the child during the program.”
Certification (Clearances) Portability
The new law makes clear that employees need to pay for their clearances. While the state is subsidizing the cost of the state police and DHS clearance for volunteers, it does not do so for employees. Individuals who have obtained their clearances for free as volunteers will need to re-apply for paid clearances prior to employment in schools. Those who have paid for their clearances, however, can use those same clearances to perform volunteer service.
The Bottom Line
While the new law does add some clarity and reasonableness, it certainly did not fix everything. Indeed, it creates some new issues. This law poses particular challenges, because, while state agencies such as PDE and DHS may issue guidance, they are not ultimately the ones who will determine legal compliance, since consequences for violation are criminal in nature. Thus, it is the language of the law, not a 3rd party interpretation that is ultimately going to be most important.
Schools will need to work closely with their legal counsel to develop legally-compliant policies and procedures that effectively implement the requirements of this law.
School Law Bullets are a publication of the school law attorneys of KingSpry’s Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.