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Child Protective Services Law Background Clearances Update

As Published in the November, 2015 Issue of the PELRAS Newsletter

Published on: Mon 8th Aug, 2016 By: Julie Aquino

You probably know that the Child Protective Services Law ("CPSL") was amended to require background checks for all paid employees, age 14 or older, who have "direct contact with children" or who are "responsible for the welfare of a child." The update on this front is that the General Assembly further changed some of the provisions of this law through additional amendments enacted on July 1, 2015. 

The 2014 amendments to the CPSL were a major change in the law for Pennsylvania employers, requiring criminal background clearances for covered employees. The three clearances required come from the Pennsylvania State Police ("PSP"), the FBI, and the Pennsylvania Department of Human Services ("DHS"). For new hires covered under this law, the clearances must be submitted to the employer prior to commencement of employment. For current employees not previously subject to these clearances, the employee must submit them to the employer no later than December 31, 2015. Covered employees are also required to self-report arrests and convictions of certain enumerated criminal offenses within seventy-two (72) hours. Similar, although not identical, requirements also apply to adult volunteers.
So what changed in July 2015 regarding these requirements? One major change is that the 2014 version of the law required a new set of background clearances every thirty-six (36) months, which was changed under the July 2015 amendments to a recurring period of every sixty (60) months. In regard to this obligation, be aware that an "employer, administrator, supervisor or other person responsible for employment decisions" that intentionally fails to require an applicant or employee to submit the required clearances commits a third degree misdemeanor. Another minor change is that the Commonwealth reduced the cost of the report from PSP and DHS from $10.00 to $8.00 each, although the cost of the FBI clearance still remains the same, $27.50. 

The July amendments also inserted the phrase "program, activity or service" into the provision requiring clearances of paid employee who have "direct contact with children," or are responsible for a child’s welfare. It remains to be seen how insertion of this phrase, which has its own detailed definition, impacts coverage under the law. 
Other July 2015 amendments pertain to adult volunteers. The good news for volunteers is that they can now obtain one set of clearances at no cost every fifty-seven (57) months, which cannot be used, however, for employment purposes. New covered adult volunteers must obtain the background clearances by August 25, 2015, while existing covered volunteers now have until July 1, 2016. Adult volunteers are not required to obtain the FBI clearance if they have been a resident of the Commonwealth for the entirety of the previous ten (10) years and they swear or affirm in writing that they have not been convicted of certain enumerated criminal offenses. 

The amendments also attempted to narrow, to some extent, under what circumstances adult volunteers are required to obtain clearances, by including a separate definition of "direct volunteer contact." Per this new definition, DHS provides the following instruction: "When determining whether a volunteer is responsible for the welfare of a child consider whether the volunteer is acting in lieu of or on behalf of a parent. If they are acting in lieu of or on behalf of a parent, they will need certifications. If a determination is made that the volunteer is not responsible for the welfare of a child, you then move on to the second avenue for consideration; whether they have direct volunteer contact with children . . . because they provide care, supervision, guidance or control of children and have routine interaction with children. As the terms care, supervision, guidance or control are not defined in the statute we suggest that the common meaning of these terms be used, with child safety serving as the paramount consideration. With regard to routine interaction with children, consideration should be given to what the volunteer’s role is within the agency. Is their contact with children regular and repeated contact that is integral to their volunteer responsibilities?"

The July amendments also include an exception to the background clearance requirement for students who volunteer at events on school grounds, under certain conditions. Student volunteers interested in understanding whether they are required to obtain background clearances should review the specific criteria for this exemption. 

Lastly but not least important, remember that the CPSL was also amended in 2014 to expand requirements for the "mandatory reporting" of "child abuse" to a greater number of employees and volunteers, and under less narrow circumstances. Individuals who are mandatory reporters of child abuse due to their employment or volunteer work are required to report suspected child abuse to the Commonwealth’s ChildLine system, which is accomplished by calling 1-800-932-0313. For details regarding these significant mandatory reporting obligations, see the June 2015 PELRAS Update.