[29 Pa.B. 3513]
[Continued from previous Web Page] § 3490.40. Notifications regarding indicated reports.
Comment: A commentator agreed that the change from ''right to services'' to ''services available'' from the county agency should result in a clearer articulation of the supportive services that a family can obtain; however, the family's right to services should not be diminished in light of the forthcoming changes in the ''reasonable efforts'' requirements under the Adoption and Safe Families Act (ASFA), Pub.L. No. 105-89 (amending Titles IV-B and IV-E of the Social Security Act). The notice should also be clear about the subject's right to service.
Response: The Department reviewed the comment and returned to the original language which provides notice to subjects of the report of their right to services.
§ 3490.42. Performance audit and reviews.
Comment: IRRC and numerous commentators requested the Department clearly define the required documentation and the reasons that would be acceptable in allowing child abuse reports to go beyond the 30-day time requirement.
Response: The Department considered the comment but did not change the regulation to provide a listing of reasons for exceeding the 30-day time requirement for child abuse reports. The Department cannot compile an inclusive listing and will provide direction through interpretive guidelines. Acceptable reasons for exceeding the 30-day time requirement would include awaiting the receipt of medical or psychological reports.
County Responsibilities § 3490.53. Functions of the county agency for child protective services.
Comment: One commentator questioned the language change from ''deemed'' to ''determined'' when referencing that no child may be determined to be abused based solely on injuries that result from environmental factors that are beyond the control of the person responsible for the child. The commentator believed that the statement indicated a higher standard for substantiation. Two commentators questioned the inclusion of this paragraph in that it was redundant. This portion of the definition of ''child abuse'' was included in the section while the remaining components of the definition were excluded.
Response: The Department reviewed the comments and deleted subsection (d).
§ 3490.54. Independent investigation of reports.
Comment: One commentator supported the provision allowing the county agency to rely on the law enforcement finding rather than conducting its own investigation which would reduce the need for multiple investigations and interviews.
Response: The Department considered the comment but did not change the section. The intent of the section is to enable county agencies to use the law enforcement investigation to support its finding when the allegations are substantially the same. It does not give the county agency the authority to not conduct an investigation. The first sentence of the section announces the requirement that the county agency conduct an investigation and make an independent determination. Section 6368(a) of the CPSL requires the county agency to immediately commence an appropriate investigation, see the child immediately if emergency protective custody is warranted or if safety cannot be determined, and to otherwise see the child within 24 hours. The Department supports cooperation and coordination between law enforcement officials and county children and youth agencies. The conducting of joint investigations and interviews will reduce both the number of interviews and the amount of trauma to children.
§ 3490.55. Investigations of reports of suspected child abuse.
Comment: IRRC and other commentators recommended the inclusion of the statutory provision requiring the county agency provide or arrange the services necessary to protect the child during the investigation period.
Response: The Department accepted the comment and amended § 3490.53(b) to include the provision of section 6368(a) of the CPSL which requires services be provided or arranged during the investigation period when necessary to ensure the safety of the child.
Issue: Commentators raised concern with the requirement to conduct a home visit during a general protective service assessment when responding to § 3490.235 (relating to services available through the county agency for children in need of general protective services). During review of these comments, the Department noted no similar provision was required for child abuse investigations. The Department believes that to conduct a thorough child abuse investigation, the county agency must see the child and visit the child's home during the investigation period; therefore, this requirement has been included in the section. Although reports may not indicate a need to see the child's home, the county agency must assess the condition of the home to complete the risk assessment process. The Department further recognized that the presenting problem may not be an isolated issue and it is during the course of the investigation that the family dynamics are identified and evaluated.
Comment: One commentator suggested that the Department include language similar to that in § 3490.172 (relating to coordination of an investigation) that would require joint interviews for child abuse reports which is provided in reports of student abuse.
Response: The Department considered the comment but did not change the section. Section 6353.1(b)(2) of the CPSL (relating to investigation) states that law enforcement officials and the county agency shall conduct joint interviews of the student in reports of student abuse while section 6346(c) of the CPSL (relating to cooperation of other agencies) provides for cooperation and coordination to the fullest extent possible for cases of child abuse. The Department strongly encourages conducting joint interviews in cases involving child abuse, but the statute does not authorize the Department to require joint interviews.
Comment: Subsection (a). Two commentators questioned the need to see all children within 24 hours of the receipt of the report. Child abuse reports involving serious physical injury may be received based on allegations that occurred within 2 years and for sexual abuse, serious mental injury and serious physical neglect there is no statute of limitations. The perpetrators in these cases may no longer be involved with the family or the incident could have occurred several years ago. It is suggested that at those times when the victim is over the age of 18, that the victim need not be seen within 24 hours.
Response: The Department considered the comment but did not change the section. Section 6368(a) of the CPSL requires that all children be seen within 24 hours of the receipt of a report of alleged child abuse. The Department would not require the county agency to see a victim over the age of 18 within 24 hours. When there are indications that an alleged perpetrator of a report where the victim is over the age of 18 would have contact with a child as defined in § 3490.4, the Department requires the county agency see those minor children within 24 hours.
Comment: Subsection (h). Several commentators raised concern that needed medical examinations where serious physical injury is indicated have not been incorporated into the current needs-based budgets.
Response: The Department notified the county agencies of this requirement and the need to include costs associated with these medical examinations in their needs-based budgets. The cost of these medical examinations may be covered through the HealthChoices program.
Comment: Subsections (f) and (g). One commentator questioned the language of these subsections as they require the county agency to obtain color photographs and medical evidence or consultation whenever possible and appropriate. The commentator inquired whether the Department will question the county agency's determination of the appropriateness in these circumstances.
Response: The Department considered the comment but did not change the subsections and will provide direction through interpretive guidelines. Color photographs are necessary when children have visible injuries and medical evidence should support the agency determination in child abuse reports.
Comment: Subsection (h). A commentator suggested that the term ''certified medical practitioner'' be expanded to include registered nurses as school nurses often complete medical examinations when there is an indication of serious physical injury.
Response: The Department considered the comment but did not change the subsection. The Department recognizes that often school nurses have contact with children who are the subjects of abuse reports. However, they are not included in the definition of ''certified medical practitioner.'' They may not conduct the examination to determine that an injury meets the definition of ''serious physical injury'' under the statute. They will document injuries for reporting purposes and are required reporters.
§ 3490.56. County agency investigation of suspected child abuse perpetrated by persons employed or supervised by child care services and residential facilities.
Comment: Numerous comments were received concerning the need for the county agency to approve the safety plan of child care and residential facilities when investigating reports of child abuse within these facilities. Commentators perceived the Department as abdicating responsibility for licensing these facilities to the county agency. Several commentators felt that they were placed in awkward positions and that conflicts of interest may arise. There were also comments that not all child care facilities obtain ChildLine and State Police clearances because it is inconvenient. One commentator reported that investigation of these reports burdens the county agency and that county agencies have no jurisdiction over these facilities.
Response: The Department considered the comment but did not change the section. The county agency is required to investigate reports of suspected child abuse when the alleged perpetrator is employed by a child-care facility. It is during these investigations that the county agency would need to approve the safety plan developed to assure the safety of the children within the care of the facility. The county agency is then required to submit the safety plan to the Department. The Department does not require the county agency to license the child-care facility. The Department would assume the responsibility to investigate these reports and to obtain the safety plan when the facility is an agent of the county agency as defined in § 3490.81 (relating to responsibilities of the Department and the county agency) and section 6362(b) of the CPSL (relating to responsibilities of county agency for child protective services).
§ 3490.58. Notifications.
Comment: Subsection (a)(1). Several commentators requested clarification regarding the need to provide the alleged perpetrator with the specific allegations prior to the interview because a description may compromise the investigation. Commentators further requested the Department develop a uniform notification letter to the subjects of the report.
Response: The Department recognized that notification of specific allegations at the onset of the interview could compromise the investigation and revised the subsection. The initial notification may be limited to the existence of the report and type of suspected abuse. This will be confirmed in writing within 72 hours under § 3490.58(b). The Department will develop a model notification letter.
Comment: One commentator raised concern that reference is made to the right of the subjects to written notification of the existence of the report and a copy of the report. Clarification was requested of what information a subject may receive and requested a clear delineation of the confidentiality of the referral source.
Response: The Department referenced the confidentiality of the referral source throughout the chapter, specifically in §§ 3490.37, 3490.91, 3490.94 and 3490.104. It also appears in section 6340(c) of the CPSL (relating to release of information in confidential reports); therefore, there is no need for inclusion. The subjects of the report are entitled to copies of the Report of Suspected Child Abuse (CY-47), Child Protective Service Investigation Report (CY-48), and Child Protective Service Supplement Report (CY-49).
§ 3490.59. Action by the county agency after determining the status of the report.
Comment: Subsection (b). Two commentators, including IRRC, raised concern that when reports are unfounded and the agency determines that the family is in need of services, the county shall advise the family of social services available. The commentators were concerned that the county agencies may refuse to accept families for service when they have in fact determined that the family is in need of services. Clarification of the Department's intent was requested. IRRC further requested that there be a cross reference to services available through Subchapter C.
Response: The Department amended the section to state that if the report is unfounded and the county agency determines that there is a need for services other than those services provided by the county agency, the county agency will notify the family of other services available.
§ 3490.60. Services available through the county agency.
Comment: One commentator expressed concern that the county agency may incur increased fiscal burdens as a result of being required to provide or arrange or otherwise make available the enumerated services for the prevention and treatment of child abuse and inquired if the Department would provide the resources necessary to provide these services. The commentator inquired if the county agency would need to develop self-help groups if there are none located in the county and whether the county agency would be responsible to incur medical expenses during the course of child abuse investigations.
Response: The Department adopted the regulatory language directly from section 6365 of the CPSL (relating to services for prevention, investigation and treatment of child abuse) and therefore, made no changes. The county agency is responsible for services that are deemed necessary to treat and prevent child abuse. If self-help groups would be the most effective treatment for families, the county would need to assure that those services are available to the family either directly, through purchase of service or by referral. Investigative medical expenses incurred, not covered through Medical Assistance, HealthChoices, insurance or paid by the family would become the responsibility of the county agency as required by the statute.
Comment: Paragraph (3). One commentator suggested the inclusion of language in the section to allow participation in State or local child death review teams.
Response: The Department amended the paragraph to permit participation in local or State child death review teams. Section 6365 of the CPSL requires each county agency to make available, among its service for the prevention and treatment of child abuse, a multidisciplinary team (MDT). The review of child deaths through use of MDTs is necessary to review county action and to identify similarities among cases. The local child fatality review team would be convened by the county agency to complete case specific review of circumstances relating to a child death. The purpose of the local MDT would be the investigation of a child death and the development and promotion of strategies to prevent child abuse in the family or in others.
The inclusion of the regulatory citation to sections 6343(b) and 6365 of the CPSL provides clarification of the authority to convene a State or local child fatality review to review a child death in this Commonwealth. It is a significant strategy to prevent child death. The Department contends sharing information among members of the team is necessary to fulfill its responsibility to abate child abuse and to reduce the number of child deaths in this Commonwealth.
§ 3490.61. Supervisory review and child contacts.
Comment: Subsection (a). Four commentators, including IRRC, raised concern that the ''10 day supervisory review'' was deleted from the section and replaced with ''regular and ongoing basis.'' Commentators stated the section provides an unclear standard. A commentator stated the supervisor should review the case in the beginning of the investigation because it relates to child safety. Commentators requested further clarification on whether notations made in the case record dictation would constitute the supervisory log.
Response: The Department acknowledged the need for clarity regarding regular and ongoing supervisory review and documentation and added requirements for reviews of these cases every 10-calendar days during the investigation period. The Department would accept notations made in the case record at 10-day intervals provided those notations address child safety and risk. This does not preclude supervisors from having a separate log.
Comment: Subsection (b)(2)(ii). Two commentators requested the term ''oversight'' be defined.
Response: The Department considered the comment but did not include a definition of the term ''oversight.'' Oversight is a routine responsibility of supervision in assuring that the agency case management responsibilities are met.
Issue: Subsection (f). The Department included in the subsection that the county agency, as a provision of the family service plan require the parent to notify the county agency of any change of residence within 24 hours. This clarified regulation increases parental accountability and assures the safety of children by reducing the number of persons who elude county agency involvement.
§ 3490.62. Repeated child abuse.
Comment: IRRC and one commentator raised concern that an MDT is not convened until after three substantiated reports of child abuse. Commentators recommended that the MDT be convened after two substantiated reports of abuse in an attempt to prevent future incidents of abuse and assure child safety.
Response: The Department accepted the recommendation and amended the section to require an MDT review after one substantiated report of abuse and the receipt of a subsequent report of suspected child abuse. After the receipt of the subsequent report of suspected child abuse, the section requires a review of the family service plan by the administrator or a designee, the supervisor and the caseworker. The county agency shall provide a recommendation to the MDT related to the appropriateness of the plan and the need for additional services to protect the child.
3490.65. Staffing and staff qualifications.
Comment: IRRC commented this section requires a county agency to have sufficient qualified staff and to be organized to perform the functions required by the statute. The section does not provide guidance on how this is to be accomplished or how it will be evaluated and recommended addition of a reference to § 3130.32 (relating to staffing requirements).
Response: The Department deleted this section and amended § 3490.341 (relating to staff-to-family ratios) which requires county agencies to have qualified staff to perform the functions required by the statute which includes a reference to § 3130.32 (relating to staffing requirements).
§ 3490.67. Written reports to ChildLine.
Comment: Subsection C. Three commentators raised concern related to the addition of ''pending criminal court jurisdiction'' as an interim disposition on reports of alleged child abuse. They advised that this would seem to hamper the criminal proceeding in that the district attorney's office would not be able to use the indicated disposition in the criminal proceeding and that defense attorneys would be able to use the lack of a disposition to their advantage. Commentators also believed that the potential for appeals within the criminal proceeding could lengthen the time frame for the county's determination and would prohibit the county from developing a permanency plan as required by Adoption and Safe Facilities Act of 1997 (42 U.S.C.A. §§ 678, 673b and 678b).
Response: The Department did not intend for the county agency to delay the status determination of a report if there was sufficient evidence for disposition. The Department amended the regulation for clarification. In cases when the county agency would be approaching the 60-day time limit and is unable to make a determination, the pending criminal court status could be utilized. The section does not preclude the county from making a determination if substantial evidence exists.
§ 3490.70. Expunction, sealing and amendment of report by the county agency.
Comment: One commentator raised concern that the county agency shall notify persons to whom they provided child abuse information of the need to expunge this information when the county agency is notified by ChildLine. The process of retrieving this information and providing the notification is potentially time consuming and a clarification was requested on whether the notification should be verbal or written.
Response: The county agency has discretion on the manner the notification is provided to persons required to receive notice. A county agency should develop an internal policy to efficiently implement a notice system.
Comment: Two commentators, including IRRC, advised that section 6341 of the CPSL (relating to amendment or expunction of information) eliminates the sealing of reports and recommended the deletion of the reference.
Response: The Department reviewed the comment and has deleted the reference to sealing of reports throughout the section. The CPSL no longer grants the Secretary the statutory authority to seal reports of child abuse or to access sealed records.
§ 3490.71. Guardian ad litem or court designated advocate.
Comment: One commentator inquired if the Department should determine a maximum age for which the guardian ad litem would determine the child's wishes.
Response: The Department considered the comment but did not change the section. There are numerous developmental variables included in the decision making process of representation of the child's wishes to the court which should not be unilaterally based on age.
Comment: Five commentators, including IRRC, recommended amending regulatory language that would allow cooperation of the county agency with both a guardian ad litem and a court designated advocate. As proposed, the section appeared to limit cooperation to one or the other. Commentators recommended the word ''or'' be changed to ''and.''
Response: The Department reviewed the comments and made the necessary change to provide release of information to both the guardian ad litem and the court designated advocate.
Confidentiality § 3490.91. Persons to whom child abuse information shall be made available.
Comment: Subsection (a)(1). One commentator advised that a guardian ad litem may release information obtained in the course of representing a child with persons who are not enumerated in regulation but are in need of the information. The language relating to civil and criminal penalties for releasing the information should not apply to a guardian ad litem.
Response: The Department reviewed the comment but did not change the section. The statute does not provide immunity from civil or criminal liability to guardians ad litem who release information to persons not permitted to receive the information.
Comment: Subsection (a)(1). Two commentators expressed concern relating to the release of the name of the reporter. One commentator requested the term ''legitimate'' be defined. The remaining commentator advised that the release of the reporter's name places the agency in a precarious position in determining whether other agencies can assure the confidentiality of the reporter.
Response: The Department added language to provide clarity. ''Legitimate'' was not defined but language was added that links the release of the reporter's name to child protection.
Comment: Subsection (a)(3). Five commentators recommended the term ''or'' be changed to ''and'' which would allow the release of child abuse information to both the guardian ad litem and the court designated advocate. One commentator further recommended that the Department include a definition of ''court designated advocate.''
Response: The Department made the necessary regulatory change to allow for release of information to both the guardian ad litem and a court designated advocate. The Department added a definition of ''court designated advocate'' to § 3490.4.
Comment: Subsection (a)(5). Two commentators stated that a written court request for child abuse information is not required by statute and is cumbersome. One of the commentators requested clarification of the reason the court must contact the Department.
Response: The Department included the provision requiring the written court request of child abuse records to authenticate the request. Requests made by telephone would be difficult to verify; however, the Department will accept requests from the court by means of facsimile. The regulation includes the specific documents available from the Department. ChildLine will forward written court requests for additional information not on file with ChildLine to the county agency administrator for compliance. Written court requests to the Department would include Statewide child abuse reports while information at the county agency level may not include child abuse reports from other county agencies.
Comment: One commentator recommended the inclusion of district justices in the enumeration of persons who may have access to child abuse information because this has been introduced in House Bill 1992.
Response: The Department considered the comment but did not change the subsection. The Department cannot include the release of information to district justices because the statute does not currently allow for a release. The Department will immediately implement any statutory changes and provide notice of amendment to county agencies.
Comment: Subsection (a)(5)(ii). One commentator suggested the regulation appears to unduly restrict custody courts to acquire all information maintained on a child or family by the county agency. The commentator also recommended the deletion of the second sentence of subparagraph (ii) which provided for release of only the investigatory information.
Response: The Department deleted the second sentence of subparagraph (ii), thus allowing the court to receive all information from the county agency. This information is needed to ensure that all related information is available when making custody decisions for children to assure that the safety of the child is maintained.
Issue: Subsection (a)(10). The Department has added the word ''immediately'' to provide consistency with section 6340 of the CPSL which requires the immediate referral of reports of child abuse to law enforcement officials.
Comment: One commentator recommended the addition of language which would allow members of a local or State child death review team access to confidential child abuse information.
Response: The paragraph was amended to include the CPSL citations that grant the Secretary the explicit, discretionary authority to complete a performance audit of any CPSL activity. Section 6343(b) of the CPSL provides: ''Not withstanding any other provision of this chapter, the Secretary or a designee of the secretary may direct, at their discretion, and after reasonable notice to the county agency, a performance audit of any activity engaged pursuant to this chapter.'' The Secretary's discretionary authority to convene a child fatality review is outside the scope of section 6340 of the CPSL. The Secretary used her authority to conduct child fatality reviews to determine regulatory compliance and to abate future child abuse.
The inclusion of the regulatory citation to sections 6343(b) and 6365 of the CPSL provides clarification of the authority to convene a State and local child fatality review to review a child death in this Commonwealth. It is a significant strategy to prevent child death. The Department contends sharing information among members of the team is necessary for the Department to fulfill its responsibility to abate child abuse and to reduce the number of child deaths in this Commonwealth.
§ 3490.92. Requests by and referrals to law enforcement officials.
Comment: Subsection (b)(7). Two commentators expressed concern with the requirement to complete the written referral to law enforcement officials on the next work day following the verbal report.
Response: The Department considered the comment but did not change the subsection. The written referral to law enforcement officials within this time frame is necessary so that they have the information in a timely manner to insure a thorough and efficient review.
Comment: Subsection (c). Two commentators advised that the subsection provides for inconsistent referrals to law enforcement.
Response: The Department considered the comment but did not change the subsection. Section 6340 of the CPSL authorizes the immediate referral to law enforcement officials of cases involving homicide, serious bodily injury, sexual abuse or cases perpetrated by nonfamily members which are investigated by county agencies. The Department cannot include referral of reports not enumerated in the statute. It should be noted that when the alleged perpetrator is not a person responsible for a child's welfare, the county agency is required to immediately report the allegations to law enforcement officials.
Comment: One commentator recommended the Department devise a form for reporting referrals which do not meet the criteria for investigation by the county agency to law enforcement.
Response: The Department considered the comment but did not change the regulation. A form for reporting other allegations concerning child abuse to law enforcement agencies should be developed at the county level to meet the local law enforcement needs.
General Requirements for Child Protective Services § 3490.104. Release of information to a subject of a report.
Comment: Two commentators, including IRRC, advised that the provision of information to the District Attorney for dissemination to criminal defendants violates due process and section 6340(b) of the CPSL which allows for release of child abuse information to subjects of the report upon written request.
Response: The Department amended the section to provide for the release of child abuse information in the county agency's possession to the criminal defendant and the District Attorney.
§ 3490.105. Request by the subject of a founded or indicated report for expunction, amendment or sealing of an abuse report received by ChildLine prior to July 1, 1995.
Comment: IRRC and another commentator suggested the deletion of references to sealing of reports because section 6341 of the CPSL rescinds the authority to seal reports.
Response: The Department reviewed the comment and deleted references of the Secretary's authority to seal reports. The CPSL no longer grants the Secretary the authority to seal reports of child abuse or to access sealed records.
Comment: Two commentators, including IRRC, inquired about the inclusion of the distinction of reports received prior to July 1, 1995.
Response: The Department differentiated between reports received prior to July 1, 1995, and those received after that date. Persons who were entitled to request the amendment or expunction a founded report received prior to July 1, 1995, maintain this right.
§ 3490.105b. Request by a nonperpetrator subject to amend an indicated report of child abuse received after June 30, 1996.
Comment: Seven commentators expressed concern that nonperpetrator subjects are given the right to appeal unfounded reports. One commentator further stated that giving nonperpetrators appeal rights is an excessive and unreasonable right not afforded in criminal proceedings.
Response: The Department deleted the section to be consistent with section 6341(a) of the CPSL.
Comment: IRRC advised the section does not include a provision for notifying the county agency if a request for amending a report is granted.
Response: The Department deleted the section to be consistent with section 6341(a) of the CPSL.
§ 3490.106a. Hearings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995.
Comment: Subsection (g). IRRC and two commentators expressed concern that the statute places the burden of proof in these appeals on the county agency while the subsection places the burden of proof on the perpetrator.
Response: The Department amended the subsection to place the burden of proof on the county agency. The Department deleted reference to the perpetrator bearing the burden of proof in appeals.
Verification of the Existence of Child Abuse and Student Abuse Records for Child Care Services § 3490.124. Departmental procedures for replying to a request for verification.
Comment: One commentator supported the exemption of workfare participants from the payment of the fee for verifications.
Response: The Department did not amend the section based on support for this provision.
Verification of the Existence of Child Abuse and Student Abuse Records for School Employes § 3490.131. Definitions.
Comment: IRRC and two commentators requested clarification regarding the definition of ''administrator.'' IRRC advised the definition deviated from the statutory definition. Another commentator noted that the definition was limited in that governing bodies are responsible for hiring decisions, but normally delegate these responsibilities to other personnel.
Response: The Department adopted the statutory definition of ''administrator.''
Comment: IRRC recommended use of the statutory definition of ''applicant.'' The regulatory definition refers to a person who applies for employment as opposed to the statutory definition that refers to a person who applies for a position.
Response: The Department amended the section to define an applicant as a person who applies for a position. However, the Department included a volunteer at a charter or regional charter school in the definition of ''applicant'' to be consistent with the act of June 19, 1997 (P. L. 225, No. 22).
Comment: IRRC and two commentators requested clarification regarding the term ''direct contact'' with students. Further clarification was requested for the phrase ''unsupervised access'' within this definition.
Response: The Department considered the comment but did not change the regulation. A person who has contact with a student who is not supervised directly by a person with a clearance needs to be screened. This contact does not need to be scheduled contact and would apply to a person who has unsupervised contact with a child while in the school setting. This would include independent contractors the school would procure for all purposes. The intent of the requirement is focused on child protection.
Comment: Three commentators, including IRRC, raised concern related to the term ''position.'' One commentator believed that the definition was too narrow and that persons who are administratively reassigned would need to receive a clearance statement. Although the chapter addresses this in § 3490.132, the commentator does not believe this foreclosed potential problems. Another commentator also believed the definition was too narrow but that the provisions of the statute addressed situations where employes move from one school or assignment to another which includes persons who transfer from one building to another. IRRC requested an explanation of the categories of employment which would be considered positions.
Response: The Department considered the comment but did not change the section. Persons who change job classifications would be required to be screened. The Department does not believe that the statute contemplates that persons be screened when they transfer from one school building to another, within the same school district, and have not changed job classification.
Comment: IRRC and two commentators recommended the inclusion of charter schools in the definition of ''public school.''
Response: The Department amended the definition to include charter schools in the definition of ''public school.''
Comment: IRRC requested clarification on the distinction between ''employment'' and ''position'' in the definition of the term ''transfer.''
Response: The Department through the definitions of ''applicant'' and ''transfer'' require an applicant who changes job classification to obtain a new verification of child abuse clearance statement. The term ''position'' is used consistently throughout the CPSL and this chapter.
§ 3490.132. Responsibilities of an administrator.
Issue: Subsections (b) and (c). The Department amended the subsections to include language that is consistent with section 6355 (a)(2)(i) and (ii) of the CPSL (relating to requirement).
Comment: Subsection (g). One commentator stated that the subsection seems inconsistent with the interpretation of ''position'' and requires a substitute teacher provide a recent clearance check for each school when application is made for inclusion on the school substitute list.
Response: The Department considered the comment but did not change the subsection. A person employed by more than one school district shall provide a verification of child abuse clearance statement to each school district.
§ 3490.133. Responsibilities of an applicant.
Comment: Subsection (a). IRRC stated that the proposed subsection requires the fee for the clearance statement may not exceed $10 and questions how an applicant will know what amount should be provided in the check or money order. The recommendation was made to add language which advises that applicant to submit the amount specified on the form. IRRC noted the information on where to obtain and submit the form is located in § 3490.137 and suggested this information be incorporated into this section.
Response: The Department amended the subsection for clarity. The subsection provides that payment by a check or money order in the amount specified on the application be submitted to the Department. The Department incorporated § 3490.137 within this section which informs applicants where to obtain and submit the clearance forms. As a result of this change, the Department deleted § 3490.137.
§ 3490.134. Information relating to prospective school employes.
Comment: Subsection (a). IRRC raised concern that the requirements are similar to the CPSL. However, the CPSL provides for exemption if one of the criteria are met.
Response: After discussion with IRRC, the objection to the Department's interpretation of the statute was withdrawn.
Comment: Subsection (b). IRRC advised that the proposed subsection includes allowing applicants to submit the request for clearance check within 24 hours of provisional employment. The statute requires that the employe demonstrates application prior to employment.
Response: The Department deleted the provision for application within 24 hours.
Subchapter B. Abuse of Students in School
Introduction § 3490.143. Definitions.
Comment: IRRC and one commentator suggested clarification be provided relating to the term ''administrator.'' IRRC advised the definition deviates from the statute while the remaining commentator suggested that in some schools, the principal may not be the person designated to report incidents of student abuse.
Response: The Department adopted the statutory definition of ''administrator.''
Comment: IRRC advised the definition of ''school'' differs from the statutory definition in that intermediate unit or area vocational technical school was deleted from the regulatory definition.
Response: The Department adopted the definition of ''school'' used in § 3490.131.
School Responsibilities § 3490.151. Required reporting.
Comment: One commentator noted that school employes are required to report suspected student abuse on the basis of professional or other training and experience. The commentator identified the importance of being able to properly make this determination. The commentator believes the Department should provide adequate training and cooperate with school entities to aid personnel in recognizing the signs of child abuse.
Response: The Department considered the comment but did not change the section. The Department recognizes the need for training and will assist in the development of training material. The Department will work cooperatively with the Department of Education in training school personnel. County agencies also assist local school districts with this training.
§ 3490.152. Responsibilities of administrators and school employes.
Comment: Subsection (a). Two commentators, including IRRC, expressed concern with the language which requires school employes in certain cases to report suspected student abuse directly to law enforcement officials and the district attorney. Clarification was requested defining what ''certain cases'' school employes would be required to report, other than when the administrator is the alleged perpetrator of the student abuse.
Response: The Department clarified the regulatory language requiring school employes to report suspected student abuse to law enforcement and the district attorney when the administrator is the alleged perpetrator.
Comment: Subsection (c). IRRC suggested the information on obtaining the form for reporting suspected student abuse be included in the section.
Response: The Department amended the section to provide direction on where to obtain the forms for reporting suspected student abuse.
§ 3490.154. Release of information by a school employe including an administrator.
Comment: Subsection (a). IRRC advised the information in reports of suspected student abuse is confidential and the statute enumerates who may receive this information. IRRC pointed out the regulation appears to include persons who are not authorized to obtain this information and those persons should be deleted. One commentator requested that guardian ad litems and court designated advocates be included as persons to whom this information may be provided.
Response: The Department amended the subsection to comply with the statutory authority of section 6352(a) of the CPSL (relating to school employes).
County Responsibility § 3490.171. Receipt and investigation of reports of suspected student abuse.
Comment: Subsection (b). IRRC recommended that the subsection include the information contained in the county agency's oral report to ChildLine.
Response: The Department added clarifying language which includes the required information when making oral reports of student abuse.
Comment: Subsection (d). IRRC raised concern related to reports that are not received by the Department within 60-calendar days from the date of oral report which are considered unfounded. It was recommended that the Department verify the report was unfounded to ensure the paperwork was not lost.
Response: The Department included clarifying language requiring ChildLine to contact the county agency to verify the report was not completed within 60-calendar days prior to expunction of the report.
Comment: Subsection (f). IRRC recommended changing the citation which references the submission of a new report when a final status determination is made. There is no reference to the Child Protective Services Investigation Report Form in subsection (a).
Response: The Department corrected the citation referencing subsection (e).
§ 3490.173. Notifications by the county agency.
Comment: IRRC advised the section provides for written notification to the subjects of the report within 72 hours of the oral notification of the rights regarding amendment and expunction. Section 6353.2(d) of the CPSL (relating to responsibilities of county agency) permits delaying the notice if the notification is likely to threaten the safety of the student or the county agency worker, to cause the school employe to abscond or to significantly interfere with the conduct of a criminal investigation while the section does not.
Response: The Department amended the section to include language which allows for delaying the notification under section 6353.2(d) of the CPSL.
General Requirements for Student Abuse § 3490.192. Request for a hearing from a school employe for indicated reports of student abuse.
Issue: As a result of several comments received on related student abuse issues, the Department amended the regulation to provide consistency with the statutory requirement placing the burden of proof on the county agency in requests for hearings relating to appeals of the Secretary's decision to deny amendment and expunction of student abuse cases. A similar concern was raised regarding appeals relating to child abuse reports in § 3490.106.
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