Confused about the Child Protective Services Law amendments? Ready to pull your hair out thinking about employee clearances and background checks? Having panic attacks about new legal compliance related to volunteers in your school? You are not alone.
In what can be legitimately termed the Post-Sandusky era, the landscape of mandated reporting and child abuse protection/prevention has just changed dramatically, and it seems that guidance, tips and legal interpretations are arriving daily in piecemeal fashion from a wide variety of sources. Affecting public, charter, cyber-charter, and nonpublic schools alike, this tangled web of new mandates affects everything from reporting to employment to volunteering in schools. To help untangle the mess and ease some of the confusion (sorry – we can’t eliminate it completely!), we have created this FAQ to highlight key new requirements and offer tips to help schools cope with some of the more onerous provisions.
Has DPW Changed its Name?
Yes. The Pennsylvania Department of Public Welfare (DPW) has formally changed its name to the PA Department of Human Services (DHS). This has led to some confusion, because the law was drafted and passed prior to the change, so the Child Protective Services Law (CPSL) refers to the PA Department of Public Welfare, but the website, forms and most recent state guidance on the mandatory reporting laws correctly refer to DHS, not DPW.
The New Mandated Child Abuse Reporter Requirements
What are the new mandated reporter reporting requirements?
With the New Year came a significant shift in mandated child abuse reporting by school employees. Mandated reporters are now required to make reports immediately and directly to the PA Department of Human Services (formerly DPW) as well as the building administrator. Initial reports may be made either over the phone via Childline (800-932-0313) or on the new electronic reporting system. If the report is made on the phone, a follow-up electronic or written report (using DHS form CY47) must be made within 48 hours. Click here for a chart that delineates the proper procedure.
How do I access the online reporting system?
The online reporting system is available at www.compass.state.pa.us/cwis.
What do I need to know/do/advise employees about the new electronic reporting system?
Schools and mandatory reporters should be advised that the new system requires each user to create an account, providing their personal contact information as well as creating a unique username and password for future logins, which does take some time. In an effort to make the actual reporting process as simple as possible, is advisable to have employees complete this process as soon as possible, before they need to make a mandated report.
Will I get confirmation of my report if I report online?
Yes, and that receipt of confirmation by mandated reporters is legally required. If mandated reporters do not receive such confirmation, the report should either be re-filed online (the reporter must get to the confirmation page) or made by phone via Childline (800-932-0313). If the initial report was made via phone, a follow-up written report must be made either through the online system or via the CY47 written report form.
What other changes have been made to the CPSL?
There have been many changes, including a substantial re-definition of what constitutes child abuse, as well as expanded protections of immunity and heightened criminal penalties for failure to report.
What information should I be providing to my staff?
Schools should provide all employees with a comprehensive summary of all of the applicable changes as well as quick-reference guides for the reporting process and definitions. KingSpry is able to provide materials for this purpose.
What else should I be doing with regards to the new laws?
Schools should develop policies and administrative regulations that conform to the new laws. Because of the extensiveness and complexity of the recent changes to the law, policies, procedures, information and staff-training documents should be legally-reviewed to ensure accuracy and legal defensibility.
I remember that there were special definitions and requirements for “student abuse.” Is that gone now?
Yes. “Student Abuse,” the abuse of students by school employees, no longer has a separate reporting procedure or definition, and school employees have become part of the class of individuals who are able to perpetrate the crime of child abuse. In addition, the law has broadened the class of mandated reporters and the situations in which they are required to report. The confidentiality requirement contained within the Child Protective Services Law now expressly applies to schools, generally prohibiting school employees from disclosing information regarding child abuse reporting and/or investigations.
What clearances are required under the new CPSL, and who needs them?
All employees and contractors of a school (public, private, charter and cyber-charter) IU, or vo-tech who have direct contact with children are required to have the clearances required under that statute. Volunteers are also now required to have clearance, although there is an optional exemption for the FBI clearance for volunteers where certain criteria are met, which we describe, in detail, below. The three clearances required are:
- Report of criminal history from the Pennsylvania State Police (PSP);
- Child Abuse History Clearance from the Department of Human Services (Child Abuse); and
- Fingerprint based federal criminal history submitted through the Pennsylvania State Police or its authorized agent (FBI).
Are there any differences between the legal requirements for employee clearances and those required for volunteers?
Yes. As mentioned, above, volunteers are exempt from the FBI clearance if they meet the following 3 legal requirements:
- Their position is unpaid;
- They have been a continuous resident of Pennsylvania for the past 10 years;
- They affirm, in writing, that they are not disqualified from service based upon a conviction one or more disqualifying offenses found in 23 Pa C.S. §6344.
- Schools are free to set more stringent standards and/or require the FBI clearances for everyone, and they should let volunteers know that they reserve the right to require the clearances at any time in the future, including if and when the school has any reason to know or suspect that such affidavit is false.
To date, there is no state-issued affidavit form available for this purpose (and we are not aware of plans to develop one), so schools will need to create their own. For assistance with this and/or to ensure legal compliance, schools should seek the guidance of their legal counsel or contact a KingSpry attorney for model language.
Is it true that the CPSL amendments require all employees and volunteers to update their clearances every 36 months?
The Child Protective Services Law now requires updated clearances every 36 months. Schools are required to maintain copies of the clearances. The date of the employee’s most recent clearance determines the date by which all of his/her clearances must be updated.
Who is in charge of maintaining and keeping track of clearances?
All employees are responsible for ensuring that their clearances are updated in accordance with the law, but schools are also prohibited from employing anyone with missing or expired clearances, so both parties have their own legal obligations and interests in ensuring compliance. The school is required, by law, to maintain copies of the clearances.
Is there still a 90-day provisional employment allowance in the new law?
Yes. If an applicant meets 4 basic requirements, he/she may be employed for a single period of up to 90 days. The requirements are:
- Applicants must have properly applied for all necessary clearances and must provide a copy of the clearance applicatons;
- Employers must have no knowledge of anything that would disqualify the individual from employment;
- The applicant must sign an affidavit affirming that he/she is not disqualified from employment pursuant to 24 P.S. §1-111 and has not been convicted of a disqualifying criminal offense;
- The applicant may not work alone with children and must work in the immediate vicinity of a permanent employee.
Employees also have an ongoing obligation to report arrests, reports and convictions as they occur, right?
Yes. if an employee is arrested for or convicted of an offense that would constitute grounds for denying employment or participation in a program, activity or service, or is named as a perpetrator in a founded or indicated report, the employee is required by law to provide school with written notice not later than 72 hours after the arrest, conviction or notification that the person has been listed as a perpetrator in the statewide database. Willfully failing to do so is a criminal offense.
What are the penalties for failing to require or obtain the appropriate clearances?
Intentional failure, by an “employer, administrator, supervisor or other person responsible for employment decisions/selection of volunteers” is now a 3rd degree misdemeanor.
When does the clearances provision go into effect for new employees?
Effective as of December 31, 2014, new clearances are required whenever an employee begins employment with a new school/employer (transfers within a school entity do not require new clearances). All employees hired since December 31 should have appropriate clearances.
What is the timeline under which current employees must update their clearances?
All school employees whose most recent clearance was over 36-months old on December 31, 2014 have until December 31, 2015 to obtain updated clearances. Those whose clearances were all issued within 36 months of December 31, 2014 must update their clearances by the 36-month-date of the issuance of their most recent clearance. Strangely, this affords those with more recently-issued clearances more time to renew with the odd and very limited exception of those whose most recent clearance was issued during the year 2012.
In what appears to be an anomaly in the drafting of the new rules, all employees have until at least December 31, 2015 to renew their clearances except those who received their most recent clearance during the year 2012. Anyone whose most recent clearance was obtained during 2012 must obtain all of the required updated clearances this year on the month and day that corresponds with the date of the issuance of their most recent clearance in 2012.
There have been numerous mixed opinions and guidance regarding the recommended interpretation of this seemingly unintended legislative requirement, which has led to frustration among schools, but, for technical compliance, those whose most recently-issued clearance was in 2012 should update on the corresponding date in 2015.
Do I have to get clearances from every single unpaid person who comes into the school to help?
No. Schools are understandably concerned regarding the interpretation of the “volunteer” requirement and the extent to which it may impact their programs. For the purposes of clearances, the term “volunteer,” according to the CPSL, does not necessarily include every individual who provides an unpaid service to the school. According to the CPSL, only those with “direct contact with children” are required to have clearances.
“Direct contact with children,” is defined as “the care, supervision, guidance or control of children or routine interaction with children.” This definition is important, because it distinguishes someone who has incidental exposure to children or comes into the classroom to help out with a one-time event, such as someone giving a presentation about a job on career day or reading book to the class, from someone with more regular, extensive or supervisory duties, such as someone who chaperones a field trip or regularly assists with a sport or club. In the career day and book-reading examples, the visitors are not undertaking “care, supervision, guidance or control” over the students, nor could they be said to have “routine interaction with children” based upon that single event.
The field trip chaperone, however, is certainly supervising the students, and regular assistance with a sport or a club would clearly fall within the “routine interaction” portion. In short, schools must be very careful to ensure that, through carefully-crafted administrative regulations and/or policies, they distinguish between the incidental “visitor” in the school from true “volunteers” under the CPSL. KingSpry is able to provide model language that assists schools in making this distinction while still complying with the requirements of the CPSL.
In determining whether an employee or volunteer has “direct contact with children,” should schools be considering, as the DHS guidance suggests, whether the individual’s contact is “integral to their responsibilities”?
Schools should be extremely cautious about adding this additional factor to the analysis. In the formal DHS guidance regarding clearances, DHS advises for both employees and volunteers that clearances are only necessary those for whom contact with children is “integral to their responsibilities.” The law contains no such language, and the word “integral,” as used in the DHS guidance, is unclear and potentially too broad to fall within the confines of the statute. Under the DHS interpretation, and individual coming into a school (whether volunteer or paid) to paint the interior walls of the school may be considered not to require clearances, because contact with children is certainly not integral to the task of painting, itself. The circumstances under which the individual paints, though, may very likely put the painter in the position where he or she does, indeed, have practical contact with children, such as if the painting occurs in a hallway or lobby crowded with students. The analysis of whether the contact is integral with the task assigned has no bearing on whether the individual will have actual contact with children. While we recognize and appreciate DHS’s attempt to clarify and make manageable a very difficult and, at times, impractical law, we caution against construing any of the provisions more liberally than or outside of the confines of the actual statutory language. Caselaw will ultimately further refine and provide true legal parameters for the realistic application of many of these provision, but, until that occurs, an interpretation that most closely aligns with the actual language of the law is the most legally-conservative option.
By what dates do all volunteers need to have clearances?
The effective dates of the volunteer provisions are unclear from a technical reading of the law. As per 23 Pa C.S. §6344.2, all prospective volunteers are required to have clearances, effective December 31, 2014. However, a separate and distinct provision, 23 PA C.S. 6344.4, clearly indicates that the 36-month certification-renewal provision is effective as of July 1, 2015. This could be interpreted as requiring prospective volunteers to have their clearances available prior to becoming a volunteer but allowing those already volunteering within the school prior to December 31, 2014 to have a few extra months – until July 1 of this year – to obtain the requisite clearances. DHS has issued formal, written guidance, dated 12/19/14, ignoring the December 31, 2014 effective date for prospective volunteers and stating that the effective date for the requirement of clearances from all volunteers is July 1, 2015. This appears to be contrary to the requirements of the law, so schools should proceed with caution.
Since reliance on government-issued written guidance is not a definitive defense for non-compliance with a specific legal mandate, we suggest that schools consider a two-part rollout of clearance requirements for volunteers. We suggest requiring that clearances be immediately provided for all prospective volunteers and those beginning their service on or after January 1, and requiring that all volunteers who have provided services before December 31, 2014 receive clearances by July 1, 2015.
The “Pass The Trash” Law
What is the “Pass the Trash” Law?
A new section, sometimes referred to as the “Pass the Trash” law, has been added to the school code at 24 P.S. 1-111.1 requiring a comprehensive employment history review prior to the hiring of new employees for positions involving direct contact with children. PDE has issued a new BEC (Basic Education Circular) on the topic as well as forms required by employees and past school employers.
What do applicants have to do under this new law?
Under this law, all applicants provide a list of all former school employers as well as all former employers where the applicant was employed in a position involving direct contact with children. Applicants must also certify, in writing, that they have not been disciplined, discharged, non-renewed, asked to resign; have not resigned or otherwise separated from employment; and/or have not had a professional license or certificate suspended, surrendered or revoked due to or pending investigation regarding abuse or sexual misconduct (or allegations of the same). Applicants who fail to provide the requisite information may not be hired.
What are the hiring schools required to do?
Schools are required, under this section, to perform a review of the employment history disclosed by the applicant and are required to request from each employer a statement indicating that none of the above-listed actions have indeed occurred during the applicant’s employment, which, under the School Code, is required to be provided by the former employer on a PDE-created form. Such employers are afforded civil and criminal immunity for the disclosure of the information.
The school must also utilize PDE’s new database, TIMS (Teacher Information Management System), established pursuant to the 2014 amendments to the Educator Discipline Act, to ascertain the status and history of the teacher’s certification and past professional discipline (if any) as well as whether PDE has received notification of criminal charges against the applicant.
What are the former-employer schools required to do?
Former employers have 20 days to provide the information requested by the hiring school. Based upon the information provided, the hiring school may request additional information regarding what was disclosed by the former school. Under the law, the former school then has 60 days to respond to such a request for more information.
Is there a provisional employment allowance under this law?
Yes. Where the hiring administrator has no knowledge of information pertaining to the applicant that would disqualify him or her from employment, an applicant may be hired provisionally for up to 90 days where the applicant has provided all of the requisite information and certified, in writing, that he/she is not disqualified from employment. In such cases, the provisional employee may not be permitted to work alone with children and must work within the immediate vicinity of a permanent employee.
Child Abuse/Act 126 Trainings
All school employees still need the 3-hour training on the CPSL and Educator Discipline Act mandated by Act 126, right?
Yes. The PA School Code section 1206.5 (commonly referred to as Act 126) requires all school employees who have direct contact with children to complete a 3-hour training consisting of a specifically-enumerated set of topics, which are set forth in that law.
Whose responsibility is it to provide the training?
Under the School Code, it is the responsibility of each school to provide the training to its employees.
Does my school need to train all of its contractors, 3rd-party services providers and volunteers?
Contractors and other 3rd-party providers contracting with the schools, including contracted bussing companies, are also required to have the training, but the burden is on the contracting entity to provide that training, not the schools. Many schools, as a cost-sharing measure, are arranging for the training and then inviting contractors to participate.
Do schools need to provide Act 126 training or any other training to volunteers?
No. Volunteers are not covered under Act 126 and do not need the 3-hour training. Many schools do prove some degree of volunteer awareness information or training regarding child abuse, but this is not required by law.
Do all state-approved training providers and/or programs meet the requirements found in Act 126?
No. Many of the 3-hour training offerings to not fully comply with Act 126, which is specific to schools. Most programs cover the required Child Protective Service Law topics but are designed for a general audience and do not cover the school-specific required components, such as the Educator Discipline Act, mandatory reporting to PDE by educators (click here for detailed chart) and chief school administrators, the definition and implications of “sexual misconduct” under the School Code and maintaining appropriate professional relationships with students. Unfortunately, even PDE approval of a program does not guarantee full Act 126 compliance, as PDE has approved providers in the past that offered only the CPSL portions of the mandated training and did not offer the school-specific components required by the School Code.
How do I know if a particular training satisfies the requirements found in Act 126?
Because this is such an important decision that schools are legally-required to get right, and because the School Code has such specific requirements, the best way to ensure that your school’s program meets the requirements of Act 126 is to have the program reviewed by legal counsel.
If my school’s training covered only the CPSL topics and not the school-specific topics, does that mean that we need to do the entire training again?
Not necessarily. The school would need to supplement those topics that are legally-required but were not originally provided. For instance, if the school utilized a DPW/DHS approved provider that offered only the legally-required CPSL portions of the training, the school would then be required to supplement the school-specific portions, but would not necessarily need to re-train on the CPSL. With all of the new changes, however, many schools who need to supplement their original training for this reason are simply choosing to re-train with the updated CPSL information.
Does KingSpry offer Act 126-compliant trainings and/or school-specific supplement trainings?
Greyfriars Institute, KingSpry’s affiliate entity dedicated to professional development on legal topics, offers live, recorded, web-based and train-the-trainer programs that satisfy the full legal requirements of Act 126 as well as shorter, supplementary programs containing only the school-specific Educator Discipline Act and School Code-required information necessary for full Act 126 compliance. All Greyfriars Institute trainings have been created and reviewed by experienced school law attorneys and were designed to comply with the specific mandates of Act 126. Please contact firstname.lastname@example.org for more information about any of these programs.
If my school already offered the training, but it covered the former CPSL provisions and not the amendments, do we need to offer it again?
The law does not require schools to re-train on the new law for Act 126-compliance, however, many schools are providing shorter “CPSL update” trainings to ensure that their employees understand the new changes. We recommend this, and we do offer supplementary trainings and/or print materials that provide a brief but comprehensive overview of the new changes.
If a new employee comes to my school from another school that has already received the training, can/should the school accept proof of the other training in lieu of being re-trained?
This is a tricky question. Schools may accept such proof in lieu of re-training, but it is generally not a good idea to do so. Because there is so much confusion over trainers and programs, and because there are so many programs being offered that do not fully meet the requirements of Act 126, it is almost impossible for an employer to know whether the training that the new employee received at his/her former school was legally-compliant. In short, unless a school has reason to know that the employee 1) did, in fact, complete the training; and 2) that the training provided to the employee was fully legally-compliant, it is better to just re-train the new employee. Most schools are simply re-training all new employees to guarantee full compliance and avoid the administrative hassle.
If you have any other questions regarding these requirements, please contact your legal counsel, or one of the education attorneys at KingSpry.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.