Major Changes to Laws Protecting Minors: Pennsylvania as Bellwether for New Child Protection Legislation?

Saul Ewing Arnstein & Lehr LLP

In the wake of several high-profile cases of child abuse, Pennsylvania’s General Assembly has been on the vanguard of state legislatures’ efforts to reduce the risk of harm to children.   Since 2013, Pennsylvania’s lawmakers have passed twenty-three new pieces of legislation relating to child protection.  The reforms were the product of a task force on child protection aimed at restoring the public confidence in the ability of the state to effectively protect the victims of child abuse.  Collectively, these changes represent what may be the most aggressive state effort affecting “minors on campus” to date – and other states may soon be following suit. 

            Most relevant for institutions of higher education, the new Pennsylvania laws include major changes to (1) background check requirements for both employees and volunteers, and (2) mandated reporting of child abuse.  These new requirements present significant implementation challenges for Pennsylvania colleges and universities, and as other states take up similar pieces of legislation, institutions of higher education across the country should consider the Pennsylvania experience as a possible sign of things to come.  This article is a high level summary of some of the most salient aspects of the new laws.

Background Checks

            The most publicized aspect of Pennsylvania’s changes to child protection laws is the new background check requirements imposed by Act 153.  Under Act 153 as enacted, all individuals in Pennsylvania who either work or volunteer in a capacity where they have “direct contact” with children must now undergo certain background checks.  Employees must provide state criminal history results, federal criminal history (which requires fingerprinting), and child abuse report screening.  Volunteers need the same clearances (although long-term in-state volunteers are exempt from the fingerprinting requirement).

            In terms of timing, applicants for paid employment must now present proof that they have applied for the clearances, and need the completed clearances within 90 days of beginning work.  Applicants for volunteer positions will need completed clearances starting July 1, 2015 – and there is no provisional period for Pennsylvania residents.  Per guidance from the Pennsylvania Department of Human Services, existing employees will be required to submit clearances by the end of 2015.  Likewise, guidance suggests that existing volunteers must complete the background checks by July 1, 2016.  Clearances must be renewed every 36 months.

            Apart from the cost of processing the clearances (almost $50 per individual, payable by the applicant or the hiring institution), the major compliance challenge for institutions of higher education is figuring out who needs the background checks in the first place.  “Direct contact” with children, under the statute, is defined broadly enough to arguably include almost anyone affiliated with a college or university (“[t]he care, supervision, guidance or control of children or routine interaction with children.”)

Mandated Reporting

            The package of child protection bills also included important changes to mandated reporting requirements.  First, the new laws change the definition of “school” so as to now specifically include institutions of higher education.  Second, the laws change which individuals are “mandated reporters” required to report child abuse both externally to state authorities and internally within their organizations.  Now, all school employees (including those in higher education) who have direct contact with children must report child abuse.  In addition, all attorneys who are affiliated with a school (including institutions of higher education), regardless of their level of contact with children, are also mandated reporters.

            Third, the procedure for reporting abuse has changed.  Mandated reporters must now “report out” by calling and making a written report to the state-run child abuse hotline.  Then, mandated reporters employed by a school must report the abuse to the designated individual within the institution.  Institutions, in turn, are tasked with ensuring that the report was made to the state, and that the institution cooperates with any subsequent state investigation into the abuse.  This constitutes a dramatic shift from the old procedure, in which the mandated reporter would first report within the institution, which would then assume the responsibility of making the report to state officials.  

Public Reaction and Institutional Response

In addition to the sweeping changes described above, the new laws changed the definition of child abuse, provided protocols for training, and updated both immunities for compliance with the law and penalties for failure to comply.  Unsurprisingly, the public’s reactions to the legislature’s efforts have been mixed.  While few would argue that child protection is not a worthy goal, the loudest criticisms of the laws are that they are overbroad and difficult to implement. 

In the higher education context, the language of the new laws present special challenges.  For example, many (if not all) colleges and universities enroll seventeen-year-olds as first-year students; these students are considered “children” for purposes of the statute.  At the same time, the law contemplates teenagers fourteen years of age and over receiving background checks if they are employed where they will have contact with “children” (again, meaning anyone under eighteen).  It is doubtful that the legislature intended these incongruous results; nevertheless, these challenges are now the reality for colleges and universities implementing these laws.

Directions for the Future

In Pennsylvania, it is likely that the new child protection laws are here to stay.  While there are some efforts underway to refine the laws (for example, reducing both the scope of individuals who need background checks and the burden of obtaining clearances), many people will still be subject to mandated reporting and background check requirements.  Moreover, at the time of this writing, there is proposed legislation which would expand the reach of these laws; for example, expanding the definition of what constitutes “child abuse” for purposes of mandated reporting.

It is without question that the new Pennsylvania laws are the direct result of the child abuse perpetrated by Gerald Sandusky and other child predators within the state.  Likewise, child protection laws in other states have often been the result of specific reactions to local child abuse scandals. 

However, as state lawmakers become aware of the requirements other jurisdictions have implemented, it is likely that legislatures will continue to strengthen their own states’ protections of minors.  To do so, they will borrow ideas from across state lines – and legislative overhauls in this area have not been limited to Pennsylvania.  Connecticut recently added higher education employees to the ranks of mandated reporters. New Jersey and Delaware now require that all people make a report to authorities when they have a reasonable belief that child abuse has occurred. 

Finally, these types of laws may also have an effect on the standard of care advocated by plaintiffs in civil litigation, regardless of the actual law in your jurisdiction.  Institutions of higher education should be aware of the challenges of compliance with these new child protection laws, and should keep apprised of developments in their home states and beyond.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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