Previously on the Fox Rothschild Physician Law Blog, we reported on the July 2015 amendments to the PA Child Protective Services Law.  See our August 31, 2015 post here:  What You Need to Know about PA’s Child Protective Services Law.  In particular, we noted that the PA Medical Society interpreted the amendments to the Law as requiring all health care practitioners and practice staff having direct contact with children to obtain child abuse clearances.

After further review of the Law and consultation with the PA Department of Human Services (DHS), the PA Medical Society issued a retraction of its prior statement.  On December 1, 2015, the PA Medical Society reported that it had confirmed with the DHS that physicians and other employees of a medical practice or hospital (including administrative employees) are not required to obtain child abuse clearances under the Law.  See the PA Medical Society’s Clarification here:  PA Medical Society Child Abuse Clearances Clarification.

Although the Law used to require physicians (and other health care practitioners) to obtain child abuse clearances, the July amendments to the Law limited the clearance requirement to certain programs, activities and services.  As a result, a long-standing rule that physicians must obtain child abuse clearances appears to have been eliminated.

In our post, we also reported that the PA Department of Health (DOH), which licenses hospitals and other health care facilities, had continued to require such facilities to ensure that their health care practitioners obtained child abuse clearances, even after the amendments were passed.  The DOH has not yet confirmed its position on the Law after the recent clarification by the DHS.

While the Law appears not to require health care practitioners to obtain child abuse clearances in Pennsylvania, be sure to consult your legal counsel before making an administrative decision for your practice or health care facility.

As of December 1, 2015, the PA Medical Society has retracted its opinion that physicians, health care practitioners and practice staff must obtain child abuse clearances under the PA Child Protective Services Law.  The PA Department of Human Services has also informally agreed that such practitioners and staff are not required to obtain clearances.  Please see our updated post on this issue at: PA Child Abuse Clearances Update

In addition, as always, be sure to consult your legal counsel for legal advice.

Pennsylvania’s Child Protective Services Law received a major overhaul after the Penn State child abuse scandal.  On July 1, 2015, Gov. Wolf signed into law the third, and perhaps final, legislation on the matter.  The new legislation broadens the scope of individuals who must obtain and maintain child abuse clearances.

If you’re a physician or an administrator of a health care facility, you’re probably interested in whether your non-professional staff must obtain and maintain clearances.  You may also want to know what the law requires, now that it has been revised.

Here’s a snapshot of the key aspects of the law that are applicable to physician practices and health care facilities:

Who is Required to Obtain and Maintain Clearances?

  • Here is the new, revised definition: Any volunteer or any individual applying for or holding a paid position as an employee who has direct contact with children must obtain and maintain current child abuse clearances.  “Direct contact with children” includes (1) the care, supervision, guidance or control of children, or (2) routine interaction with children, which is defined as “regular or repeated contact that is integral to the individual’s employment or volunteer responsibilities.”
  • “Regular or repeated contact” does not have to be with the same child, so the definition can be seen as encompassing any (1) health care professional who provides patient care, and (2) administrative staff that have direct contact with children (such as front desk staff).
  • The PA Medical Society (although it does not have any legal authority) agrees that administrative staff of a physician practice or health care facility having contact with children as a result of their job responsibilities should obtain and maintain the necessary clearances. [Accessible here: http://www.pamedsoc.org/MainMenuCategories/Laws-Politics/Analysis/Laws-Analysis/Child-abuse/Child-abuse-reporting-2.pdf]  This interpretation of the law is also consistent with recent FAQs issued by the PA Department of Human Services, which provide that child safety should serve as the “paramount consideration” of any employer when determining if an applicant or employee must obtain and maintain clearances.  [Accessible here: http://keepkidssafe.pa.gov/cs/groups/webcontent/documents/document/C_135246.pdf ]

What Must Employers Do?

Regarding applicants, employers must:

  1. Require all applicants covered by the law to produce the required clearances before the applicant accepts or commences employment (whichever is earlier).
  2. Require the employee to provide a written statement that the individual has not been disqualified from employment or convicted of certain felonies (which include child-related felonies and controlled substances-related felonies, among others) (the “Felonies”) since the date of the clearances.
  3. Deny employment to any applicant who has been convicted of one of the Felonies (with certain minor exceptions).

For existing employees who do not have clearances, employers must require such employees to obtain and submit the required clearances to the employer by December 31, 2015.  (The employees also have this obligation.)

For existing employees who have the necessary clearances, employers must require the employees to update their clearances every 60 months.  If the employee’s clearances are currently older than 60 months, then the employer must require the employee to update the clearances by December 31, 2015.  (The employees also have this obligation.)

Other important responsibilities of the employer:

  • Employers must ensure that covered employees maintain the required clearances throughout their employment.
  • The employer must require any covered employees to submit updated clearances to the employer if the employer has been notified or has a reasonable belief that the employee was arrested or convicted of one of the Felonies or was named a perpetrator in a founded or indicated child abuse report.
  • The employer must discipline or terminate an employee who fails to report to the employer within 72 hours after being arrested or convicted of one of the Felonies or for being named as a perpetrator in a founded or indicated child abuse report.
  • The employee is responsible for paying for the clearances; however, an employer may reimburse the employee or set up accounts with the agencies generating the clearances in order to pay for the clearances of all of the employer’s employees.

Note that any obligation of the “employer” discussed above to require an employee to obtain or maintain clearances is also an obligation of the individual responsible for employment decisions for the employer (e.g., the administrator or supervisor).

Penalties for Employers

If the employer (or the person responsible for employment decisions for the employer) “intentionally fails” to require an applicant or an existing employee to submit the required clearances, the employer (and the person responsible for employment decisions) commits a misdemeanor of the third degree, which is punishable by imprisonment for up to one (1) year and a fine of up to $2,500.

What Clearances are Required?

  • State criminal history report from the Pennsylvania State Police
  • Child Abuse History Certification from the PA Department of Human Services (previously the Department of Public Welfare)
  • Fingerprint-based federal criminal history report (which may be obtain through the State Police or FBI)

Final Thoughts

Keep in mind that the Child Protective Services Law does not restrict Pennsylvania agencies, such as the Department of Health, from using part or all of these restrictions (or additional restrictions) for the agency’s own purposes.  For example, the Department of Health may require certain professionals or staff of health care facilities (including independent contractors) to obtain and maintain the necessary clearances in order for the facility to receive DOH licensure.

Note also that this law has similar provisions that apply to volunteers of physician practices or health care facilities having direct contact with children.

We recommend that you consult your legal counsel for legal advice specific to your situation prior to taking any actions under the law.

Beginning May 13, 2015, employers must provide paid sick leave to employees who work in Philadelphia, per the City of Brotherly Love’s newly enacted Promoting Healthy Families and Workplaces Ordinance. The ordinance will undoubtedly elicit feelings of frustration rather than love because it requires employers to provide employees who work in Philadelphia with one hour of paid sick leave for every 40 hours worked. Paid sick leave is capped at a maximum of 40 hours per year. – See more details regarding the ordinance HERE.