IN THE COMMONWEALTH COURT OF PENNSYLVANIA

NO.

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ASSOCIATION OF PENNSYLVANIA STATE COLLEGE AND

UNIVERSITY FACULTIES,
Petitioners

v.

'

PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION;

COMMONWEALTH OF PENNSYLVANIA,
Respondents

PETITION FOR REVIEW IN THE NATURE OF

AN APPLICATION FOR PRELIMINARY INJUNCTION
AND PERMANENT INJUNCTION FILED WITHIN
THE COURT'S ORIGINAL JURISDICTION

James L. Cowden
l.D. No. 20082
Jennifer A. Nachamkin
l.D. No. 200931
Strokoff & Cowden, PC
132 State Street
Harrisburg, PA . 17101
(71 7) 233-5353
Attorneys for Petitioners

::..i

The Association of Pennsylvania State College and University

Faculties, by their attorneys, Strokoff and Cowden, files this Petition for
Review in the nature of an application for a preliminary injunction and
permanent injunction, under authority of Pa.R.C.P. 1531.
1.

This Court has original jurisdiction over this Petition for

Review in the nature of an application for a preliminary and permanent

injunction under 42 Pa.C.S. 761(a)(l) because the respondent is an agency
of the Commonwealth of Pennsylvania.
2.

Petitioner, Association of Pennsylvania State College and

University Faculties ("APSCUF") is the certified bargaining agent under the

Public Employee Relations Act ("PERA"), 43 P.S. 1101.101 et seq., of a
bargaining unit of faculty members employed by the Pennsylvania State
System of Higher Education ("State System"). In academic year 2014-2015
there were over 6000 full-time and part-time employees in APSCUF's faculty
bargaining unit each semester. APSCUF has its offices at 319 North Front
Street, Harrisburg, PA 17101.
3.

Respondent, the State System, is a public corporation

created by Act 188 of 1982, 24 P.S. 20-2001-A et seq., to operate

Pennsylvania's 14 state-owned universities. It has its offices at 2986 North
Front Street, Harrisburg, PA 17110.
4.

APSCUF and the State System and the State System's

predecessor, the Commonwealth of Pennsylvania, have been parties to a

series of collective bargaining agreements ("CBA's) setting terms and

conditions of employment for State System faculty since 1971.
5.

APSCUF and the State System's last CBA expired on June

30, 2015. APSCUF has not gone on strike, and negotiations are continuing.
6.

Under Pennsylvania law as interpreted by this Court, the

terms of the expired CBA continue as long as APSCUF does not go on strike.
Luzerne Intermediate Unit No. 18 v. Luzerne Intermediate Unit Educ. Ass'n,
89 A.3d 319 (Pa.. Cmwlth. 2014).
7.

APSCUF and the State System have been negotiating for a

successor CBA since August, 2014, and have been in mediation pursuant to
80 1 of PERA, 43 P.S. 1101.801, since September, 2014. Negotiations for a
successor CBA are ongoing. Negotiations are currently scheduled for August
21 and 26, 2015.
8.

In 2014 the Pennsylvania legislature amended the Child

Protective Services Law ("CPSL"), 23 Pa.C.S. 6301 et seq., to require many

employees of institutions of higher education, including employees of the
State System, to obtain (1) criminal history records checks from the
Pennsylvania State Police and the Federal Bureau of Investigation, and (2)
certifications from the Pennsylvania Department of Human Services that
they were not subject to child abuse investigations, or had not been found to
be child abusers, as a condition of continued employment, and (3) to report
any arrests or convictions for 20 enumerated crimes to their employers. Id.
6344, 6344.3. Hereinafter, the criminal history records checks and child
3

abuse certifications are collectively called "background checks." The arrestand-conviction reporting requirements are called "reporting requirements."
9.

The date for compliance by employees subject to the 2014

version of the CPSL was set as December 3 1, 2015.

10.

In order to obtain the FBI background check, employees

must be fingerprinted.
11.

The 2014 version of the CPSL required repeated

background checks every 36 months.

12.

The 2014 amendments to the CPSL subjected most

members of the APSCUF faculty bargaining unit to the law's background

checks and reporting requirements because it applied to all employees who
came in contact with "children" in their employment. That is because almost
all faculty members advise freshmen students, and freshmen may still be
under age 18 when they matriculate in college. The CPSL defined "child" as
anyone under age 18.
13.

Under authority of the 2014 amendments to the CPSL the

Board of Governors of the State System adopted a policy requiring all State
System employees to comply with the background check and reporting
requirements of the law. A copy of the policy, entitled "Protection of Minors"
policy ("policy''), is attached as Exhibit A hereto. The State System also told
APSCUF that it would discharge persons who failed the background checks,
and stated that it would impose discipline, up to and including discharge, on

employees who failed to obtain background checks and meet its reporting
requirements.
14.

The State System did not immediately implement the

background check requirements of the law.

15.

On July 1, 2015, the CPSL was amended by Act 15 of

2015, a copy of which is attached as Exhibit B hereto. Act 15 exempts

employees of ins1'.itutions of higher education from the above-described
background check and reporting requirements of the law if their direct
contact with children is limited to "matriculated students enrolled with the
institution" and "prospective students visiting a campus." Act 15 of 20 15,
Section 5; 23 Pa.C.S. 6344 (a.1)(2). Act 15 also extends the requirement of
repeated background checks from 36months to 60 months.
16.

The effect of Act 15 is to exempt almost all employees

within APSCUF's faculty bargaining unit from the background check and
reporting requirements of the CPSL. That is because the "children" with
whom faculty members routinely have contact are matriculated students.
17.

The State System has provided APSCUF with information

stating that 760 non-matriculated high school students took one or more
courses at the 14 State System universities in the 2014-2015 academic year.
Because some of those high school students were likely 18 years old or older
APSCUF believes, and therefore afore avers, that fewer than 760 nonmatriculated "children" took courses at State System universities in the
2014-2015 academic year.
5

18.

The total student enrolment of the 14 State System

universities in the 2014-2015 academic year was about 109,606.

19.

In academic year 2014-2015, the number of high school

students, total number of students and number of individual faculty

members at each State System university was as follows:

Bloomsburg
California
Cheyney
Clarion
East
Stroudsburg
Edinboro
Indiana
Kutztown
Lock Haven
Mansfield
Millersville
Shippensburg
Slippery Rock
West Chester
System Total

High School
Students
201
71
0
119
1

Total
Students
9,998
7,978
1,022
5,712
6,820

Total
Faculty
540
412
96
316
332

76
75
1
34
46
47
20
7
62
760

6,837
14,369
9,218
4,917
2,752
8,047
7,355
8,495
16,086
109,606

371
777
457
249
192
481
480
416
957
6,076

The figures stated above for total students and faculty are for fall semester,
2014. The figures for high school students are the total for summer school,
2014, and for academic year 2014-2015, combined.
20.

APSCUF believes, and therefore avers, that non-

matriculated high school students who take university courses commonly

enroll in the same course.

2 1.

APSCUF believes, and therefore avers, that fewer than 600

of its 6000-person-plus bargaining unit have non-matriculated "children" in

the courses that they teach.
22.

APSCUF believes, and therefore avers, that fewer than 600

of the faculty members in its 6,000-person-plus bargaining unit are subject

to the background checks and reporting requirements imposed by the CPSL
as amended by Act 15 of 2015, because they have no contact with unmatriculated children.
23.

Act 15 constitutes, in part, a legislative determination that

the prior provisions of the CPSL, insofar as they applied to employees of

institutions of higher education, were excessive and not necessary. Act 15
clearly exempts many employees of institutions of higher education,
including those of the State System, from background check and reporting
requirements.
24.

On July 21, 2015, APSCUF demanded that the State

System bargain over its policy to the extent that it imposes obligations on
members of its bargaining unit in excess of the requirements of the CPSL.
25.

On July 24, 2015, the State System told APSCUF orally

that it will not bargain over exempting any employees from the aforesaid
policy imposing background checks and reporting requirements in excess of
those required by the CPSL. At the same time it told APSCUF that it would
enforce the policy by discharging employees who do not comply with it. On
August 7, 2015, the State System refused to bargain in writing.
7

26.

On July 27, 2015, APSCUF learned that as of July 10,

2015, the State System had begun to implement its policy requiring
background checks of all employees.
27.

Faculty members in APSCUF's bargaining unit resume

active employment at State System universities after the summer recess

when classes begin for the fall semester on August 24, 2015.
28.

On August 18, 2015, APSCUF filed an unfair practice

charge with the Pennsylvania Labor Relations Board ("PLRB") under

1201(a)(l) and (5) of PERA, 43 P.S. l 101.1201(a)(l) and (5), asking the
PLRB to find that the State System is violating PERA by refusing to bargain
with APSCUF over application of its policy to faculty who are not subject to
the CPSL. A copy of that unfair practices charge is attached as Exhibit C
hereto.
29.

The State System's unilateral adoption of and impending

enforcement of its policy of requiring background checks and reporting

requirements on faculty members who are statutorily exempt under the
CPSL:
(a)

abridges APSCUF's right to bargain that is protected by

(b)

disrupts the status quo that must be maintained under

PERA,

the expired CBA,

(c)

upsets the respective bargaining power of APSCUF and the

State System allowing the State System an unfair advantage in

bargaining.
30.

On August 7, 2015, APSCUF filed a grievance alleging that

the application of the policy to employees exempt from the CPSL violates the
CBA betWeen APSCUF and the State System. A copy of that grievance is
attached as Exhibit D hereto.
31.

The policy's requirements that current employees who are

not subject to the CPSL provide the State System with background checks
and report arrests and convictions, and imposing the penalty of discharge for
non-compliance, are mandatory subjects for bargaining under PERA.
32.

The background checks and reports of arrest and/or

conviction that will be reported to the State System under the policy contain
life-long records of convictions and certain records of arrests, including
arrests and convictions that have no relationship to abuse of children. Such
information when communicated to the employee's employer will expose the
employee to discrimination, disadvantage and prejudice when applying for
rehire, tenure, promotion, and assignment or selection to positions of
authority and prestige, and otherwise harm the employees' stature and
reputations, and constitutes irreparable harm to such employees.
33.

An injunction prohibiting the State System from applying

the policy to employees who are exempt from the CPSL until the PLRB
determines whether or not an unfair practice has occurred is necessary to
9

preserve the bargaining rights of APSCUF and to preserve the status quo as
required by Luzerne Intermediate Unit, supra.
34.

No injury will be imposed on the State System if an

injunction issues barring application of the policy to employees who are not
subject to the background check and reporting requirements of the CPSL.
35.

By applying the policy to employees who are now exempt

from the requirements of the CPSL, thus forcingAPSCUF to attempt to

bargain for exemption from the policy, rather than have the State System
bargain for application of the policy, APSCUF's bargaining power is damaged.
This damage to APSCUF's bargaining power constitutes immediate and
irreparable injury and disrupts labor peace. Greater Nanticoke Area Educ.
Ass'n v. Greater Nanticoke Area School Dist., 938 A.2d 1177, 1185- 1186 (Pa.
Cmwlth. 2007).
36.

An injunction to preserve the status quo pending

resolution of unfair practice charges and grievances over the employer's duty
to bargain, in order to protect the bargaining rights of APSCUF, is required
under Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 985 (1981).
WHEREFORE, Petitioner APSCUF asks the Court to enter a
preliminary injunction and, after further hearing, a permanent injunction,
prohibiting Respondent State System from applying the policy insofar as it
requires background checks and imposes reporting requirements on
employees who are exempt from the background check and reporting
provisions of the Child Protective Services Law pending adjudication of the
10

aforesaid unfair practice charge and grievance or resolution of the issue

through collective bargaining.

Respectfully submitted,
STROKOFF & COWDEN, P.C.

By:

Date:

~ I!; Wt .;:

~-'Cowden
I.D. No. 20082
JennlierA.Nacham.kin
I.D. No. 200931
132 State Street
Harrisburg, PA 17101
(71 7) 233-5353

11

Page 1of 5

Policy 2014-01

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Protection of Minors on
Campus
(Download-Printable PDF)

Policy 2014-01-A: Protection of Minors

Pennsylvania's State System of Higher Education Board of Governors
Effective: December 31, 2014

See Also:
Board of Governors' Policy 2009-01
Board of Governors' Policy 1991-04-A
Board of Governors' Policy 2009-03
Board of Governors' Policy 1985-04-A
PASSHE Procedure/Standard Number 2013-15

A.

Adopted: July 8, 2014

Amended : January 22, 2015

Purpose and Scope

The purpose of this policy is to promote the safety and security of children who participate in programs held on
Pennsylvania State System of Higher Education (PASSHE) university property. This policy applies to all PASSHE
universities, their sponsoring units, and the Office of the Chancellor. All PASSHE administrators, faculty, coaches,
staff, students, independent contractors, and volunteers in PASSHE university-sponsored programs or in programs
for minors held on university property must comply with this policy.
This policy applies to all programs and activities involving minors that fall within the scope of this policy, including
graduate and undergraduate course offerings, programs operated by the university or non-university-sponsored
programs on campus, and programs under the direction and authority of the university at locations off campus. This
policy applies to such programs and activities whether they are limited to daily activities or involve the housing of
minors. Examples of programs governed by this policy include, but are not limited to, summer camps, specialty
camps (e.g., academic and patient camps), outreach activities, workshops, conferences, tutoring, educational
programs, licensed child care facilities and programs, and affiliated entity activities. All programs subject to state
licensure are required to comply with applicable laws and regulations. Program administrators should consult with
the appropriate vice president and university legal counsel regarding licensure questions.
Except for the reporting of child abuse, this policy does not apply to: (1) events on campus that are open to the
general public and which minors attend at the sole discretion of their parents or legal guardians, (2) private events
where minors attend under parental or legal guardian supervision, or (3) other programs as may be designated by
the university president or designated official in advance and in writing as exempt from this policy or specific
provisions of this policy.

B.

Definitions
Affiliated Entity: A private organization (typically classified as a 501 (c)(3) nonprofit organization for federal tax
purposes) that exists solely for the benefit of the university and is recognized as such by the university's council of
trustees or the Board of Governors, including, but not limited to, foundations, alumni associations, and student
associations. For more information on affiliated entities, see Board of Governors' Policy 1985-04-A: Universifr

EXHIBIT

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Policy 2014-01

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.External Finar:icial Support, and PASSHE Procedure/Standard Number 2013 15, Relationships wffh Affiliated
Entities.
Authorized Adults or Program Staff: Individuals; paid or unpaid, who may have direct contact, interact with, treat,
supervise, chaperone, or otherwise oversee minors. This includes, but is not limited to, faculty, staff, volunteers,
graduate and undergraduate students, interns, employees of temporary employment agencies, and independent
contractors. Roles of authorized adults or program staff include, but are not limited to, positions as counselors,
chaperones, coaches, instructors, health care providers, and outside providers running programs in leased facilities.
This definition does not include temporary guest speakers, presenters, or other individuals who have no direct
contact with program participants other than short-term activities supervised by program staff; or fellow students_
whose only role is as a participant in the education, services, or program offered.

Child Abuse: Child abuse is defined in 23 Pa. C.S. 6303. That definition includes nonaccidental actions or
omissions that cause serious physical or mental injunes to a child, or sexual abuse/sexual exploitation of a child
including:

1. Physical Abuse: Acts or omissions that cause, or fail to prevent, a serious physical injury to a child.
2. Sexual Abuse: Includes, but is not limited to, rape, sexual assault, molestation, incest, indecent exposure, or
otherwise exploiting a child in a manner in which the child is used for gratification or sexual enjoyment by another
person.
3. Emotional or Mental Abuse: Acts or omissions that have an actual or likely severe negative impact on a child's
emotional and behavioral development, including those resulting from persistent or severe emotional
mistreatment.
4. Neglect: A severe or persistent failure to provide for a child's physical, emotional, or basic needs.
Direct Contact: Providing care, supervision, guidance, or control; or routine interaction with minors.
Independent Contractor: An individual who provides a program, activity, or service to a State System entity that is
responsible for the care, supervision, guidance, or control of children.
Mandated Reporter: In a situation of suspected child abuse, all PASSHE administrators, faculty, coaches, staff,
student workers, independent contractors, and volunteers are considered mandated reporters.
Minor/Child: A person under 18 years of age. Minors may be enrolled undergraduate/graduate students; students
"dually enrolled" with the university and in elementary, middle, or high school; employees; or participants in program
activities.
One-on-One Contact: Personal, unsupervised interaction between any authorized adult or program staff and a
participant without at least one other authorized adult or program staff, parent, or legal guardian being present.
Program, Activity or Service: Programs, activities, or services offered by various academic or administrative units
of the university, or by nonuniversity groups using university facilities where the parents or legal guardians are not
responsible for the care, custody, or control of their children. This includes, but is not limited to, workshops, services ;
camps, conferences, campus visits, and similar activities. These do not include organized events where parents or
legal guardians are responsible for minors.
Program Administrator: The person(s) who has primary and direct operational responsibility for managing a
program.
Registry: An official record or list of authorized adults or programs.
Sponsoring Unit: The academic or administrative unit of the university that offers a program or gives approval for
the use of university facilities.
State System Entity: One of the State System universities or the Office of the Chancellor.
University Facilities: Facilities owned by or under the control of a State System entity, including spaces used for
educatiorJ, athletics, dining, recreation, university housing, and on-campus affiliate-owned housing.
University-Sponsored Programs: Programs that are directly managed by university faculty, staff, and affiliated
entities on behalf of the university. All university-sponsored programs must be registered.
Non-University-Sponsored Programs: Programs that are not operated on behalf of the university or under the
university's control.

C.

PoUcy

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Policy 2014-01

Page 3of5

Each State System entity offering or approving programs that involve minors within the scope of this document will
establish and implement policies and procedures consistent with this policy. The chancellor, after consultation with
the chair of the Finance, Administration, and Facilities Committee of the Board, may promulgate procedures,
standards, and guidelines as necessary to ensure proper Implementation of this policy. The locally established
policies and procedures will, at a minimum, include the following requirements.

1. Authorized Adults and Program Registration

Each university is responsible for establishing and maintaining a registry of university-authorized adults, program
staff, and programs for minors. All programs must be registered within sufficient time to meet the requirements of
this policy, and policy requirements should be met no later than 30 days before the program start date. Programs
must be registered annually.

2. Program Registration Requirements

The following topics must be addressed in planning and evaluating registered programs:
a. Identification, selection, and screening of authorized adults or program staff, including criminal background
checks.
b. Training for authorized adults or program staff.
c. Supervision ratio.
d. Safety and security planning .
e. Participation requirement forms.
f. Transportatia11.
g. Housing.
h. Response protocols when there is an injury or illness.
i. Response protocols when an authorized adult or program staff is accused of misconduct.
j . Response protocols when a participant is accused of misconduct.
k. Program orientation or information for minors and parents.
I. Insurance requirements.
m. Record retention.

3. Authorized Adults or Program Staff Code of Conduct

Authorized adults or program staff should be positive role models for minors and act in a responsible manner
that is consistent with the mission of the State System entity. Authorized adults or program staff are required to
comply with all applicable laws and PASSHE Board of Governors' and university policies. Authorized adults or
program staff working in programs covered by this policy must follow these expectations.
a. Do not engage in any sexual activity, make sexual comments, tell sexual jokes, or share sexually explicit
material with mineirs or assist in any way to provide access to such material to minors.
b. Do not engage or allow minors to engage you in romantic or. sexual conversations or related matters.
Similarly, do not treat minors as confidantes; refrain from sharing sensitive personal information about
yourself. Examples of sensitive personal information that should not be shared with minors are information
about financial challenges, workplace challenges, drug or alcohol use, and romantic relationships.
c. Do not touch minors in a manner that a reasonable person could interpret as inappropriate. All personal
contact should generally only be in the open, and in response to the minor's needs, for a purpose that is
consistent with the program's mission and culture, or for a clear educational, developmental, or healthrelated purpose (e.g., treatment of an injury). Any refusal or resistance from the minor should be respected.
d. Do not use harassing language that would violate Board of Governors' Policy 2009-03: Social Equity, or
university harassment policies .
e. Do not be alone with a minor. If one-on-one contact is required, meet in open, well-illuminated spaces or
rooms with windows observable by other authorized adults or program staff, unless the one-on-one contact is
expressly authorized by the program administrator or is being undertaken for medical care.

f. Do not meet with minors outside of established times for program activities. Any exceptions require written
parental authorization and must include more than one authorized adult_or program staff.
g. Do not invite individual minors to your home or other private locations. Any exceptions require authorization
by the program administrator and written authorization by a parent/guardian.
h. Do not provide gifts to minors or their families independent of items provided by the program.

i.

Do not engage or communicate with minors except for an educational or programmatic purpose; the content
of the communication must be consistent with the mission of the program and the university.

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Policy 2014-01

j.

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Do not engage in any abusive conduct of any kind toward, or in the presence of, a minor, including, .b ut not
limited to, verbal abuse, striking, hitting, punching, poking, spanking, or restraining. If restraint is necessary to
protect a minor or other minors from harm, all incidents must be documented and disclosed to the program
administrator and the minor's parent/guardian.

k. Do not use, possess, or be tinder the influence of alcohol or illegal drugs while on duty, or in the presence of
minors involved in a program, or when responsible for a minor's welfare.
I.

Do not provide alcohol or illegal substances to a minor.

m. Do not provide medication to a minor unless authorized by the program's medication management
guidelines.
n. When transporting minors, more than one authorized adult or program staff from the program must be
present in the vehicle, except when multiple minors will be in the vehicle at all times through the
transportation. Avoid using personal vehicles if possible and comply with the program's transportation
guidelines.
Violations of any of the forgoing shall be reported to the program administrator.

4. Criminal Background Screening

At a minimum, all employees and volunteers are required to have criminal background screening clearances in
accordance with applicable procedures, standards, and guidelines as established by the chancellor.
Before being allowed to use or lease university facilities, program administrators and/or independent contractors
of non-university-sponsored programs, or nonuniversity groups and/or independent contractors providing
services to university-sponsored programs are required to certify that they have conducted criminal background
checks and determined the fitness of all authorized adults and program staff..

5. Participant Requirements
Minors and parents or legal guardians of minors must submit required forms before minors will be allowed to
participate. These forms may include, but are not limited to, a participation agreement, health form, emergency
contact form, proof of medical insurance, photo and recording release, and participant code of conduct.
6. Training
All authorized adults or program staff working with minors are required to be trained on policies and issues
related to minor safety and security. The training will be offered and completed when needed and may vary
based on the role of the authorized adult. Documentation of training completion is required to be maintained by
the program administrator. Program administrators of non-university-sponsored programs or nonuniversity
groups providing services to university-sponsored programs are required to certify that they have satisfactorily
completed required training before being allowed to use university facilities. Training will include topics such as:
a.
b.
c.
d.
e.
f.

g.

Detecting and reporting child abuse.

First aid/CPR and medication management.
Participant conduct management and disciplinary procedures.
Authorized adult or program staff code of conduct.
Sexual and other unlawful harassment.
Safety and security protocols.
Crime reporting procedures.

7. Reporting Obligations
a. Reporting of.Child Abuse
In a situation of suspected child abuse, all members of the university community, contractors, and volunteers are
mandated reporters under this policy. Everyone who is deemed a mandated reporter pursuant to this policy shall
be trained as if designated ~ mandated reporter by Pennsylvania law.
All mandated reporters shall make an immediate report of suspected child abuse or cause a report to be made if
they have reasonable cause to suspect that a child is a victim of child abuse under any of the following
circumstances:
(1) The mandated reporter comes into contact with the child in the course of employment, occupation, and
practice of a profession or through a regularly scheduled program, activity, or service.

(2) The mandated reporter Is directly responsible for the care, supervision, guidance, or training of the
child, or is affiliated with an agency, institution, organization, school, regularly established church or

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Policy 2014-01

Page 5of5

religious organization, or other entity that is directly responsible for the care, supervision, guidance, or
training of the child.
(3) A person makes a specific disclosure to the mandated reporter that an identifiable child is the victim of
child abuse.
(4) An individual 14 years of age or older makes a specific disclosure to the mandated reporter that the
individual has committed child abuse.
The minor is not required to come before the mandated reporter in order for the mandated reporter to make a
- child abuse. The mandated reporter does not need to determine the identity of the person
PUBUC AFFAIRS child abuse to make a report of suspected child abuse.
---

-~--.

.............. Maiiaated repo'fters must immediately make an oral report of suspected child abuse to the Department of Human
Services (OHS) by calling 1-800-932-03.13, or a written report to OHS using electronic technologies when
available. If an oral report is made, a written report shall also be made within 48 hours to OHS or the county
agency assigned to the case as prescribed by OHS.
Immediately following the report to OHS, the mandatory reporter must notify the designated person in charge at
the university who will assume responsibility for facilitating the university's cooperation with the Investigation of
the report. More than one report of the suspected abuse is not required.

b. Reporting of Arrests and Convictions

All employees, volunteers, and program administrators must provide written notice to the designated person in
charge at the university if they or an authorized adult or program staff are: (1) arrested for, or convicted of, an
offense that would constitute grounds for denial of employment or participation in a program, activity, or service;
or (2) are named as a perpetrator in a founded or indicated report under the Child Protective Services Law (23
Pa.C.S. 6301, et seq.). The employee, volunteer, or program administrator shall provide such written notice
within 72 hours of arrest, conviction, or notification that the person has been listed as a perpetrator in the
statewide database. The failure of an employee or program administrator to make a written notification, as
required, is a misdemeanor of the third degree.
.
If the employer or program administrator has a reasonable belief that an employee or volunteer has been
arrested or convicted of a reportable offense or was named as perpetrator in a founded or indicated report under
the Child Protective Services Law, or if an employee or volunteer has provided notice of activity that would be
sufficient to deny employment or program participation, the employer must immediately require the employee or
volunteer to immediately submit current information for required criminal background screening clearances in
accordance with applicable procedures, standards, and guidelines as established by the chancellor.

8. Facilities Use Agreements

Universities licensing, leasing, or allowing the use of university facilities for noo-university-sponsorep programs
or events primarily serving minors are required to include language in the agreement requiring identification of
authorized adults or program staff, supervision ratios, adult code of conduct, training, and background screening.

consistent with this policy.

D.

Effective Date: December 31, 2014.

I I

- Ii
"'"1 ...

- Ii'

2986 N 2nd Street. Harrisburg. PA 17110-1201

(717) 720-4000

About Us .
Job Opportunities
Doing Business with the State System
Right to Know
Feedback
Staff Directory

Dixon University Center

PASSHE Center City Philadelphia
Marine Science Consortium
Map of State System Universities
Fraud, Waste and Abuse Hotline

Ad min

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Act of Jul. 1, 2015,P.L 94, No. 15 ci: 23 - DOMESTIC RELATIONS CODE (23 PAC.S.) - OMNIBUS AMENDMENTS

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Act of Jul. 1, 2015, P.L. 94, No. 1 5
Cl. 23
Sess ion of 2 015
No . 2 015-1 5

HB 1 2 76
AN ACT
Amending Title 2 3 (Domestic Relations ) of the Pennsylvania
Consolidated Statutes, in child protective services, further
providing for definit i ons, for persons required to report
suspected child abuse, for access to information in
Statewide database, for release of information in
confidential reports, for emp l oyees having contact with
children and adoptive and fos t er parents, for information
relating to certified or registered day-care home residents,
for volunte e rs having contact with children, for continued
employment or participation in program, activity or service,
for certification compliance, for education and training and
for mandatory reporting of children under one year of age.
The General Assembly of the Commonwea l th of Pennsylvania
hereby enacts as follows:
Section 1.
The definitions of "child-care services, "
"independent contractor," "perpetrator," "person responsible
for the child's welfare," "program, activity or service,"
" school" and "school employee" in section 6303(a) of Title 23
of the Pennsylvania Consolidat e d Statutes are amended and the
se ction is amended by adding definitions to read:
6303.
Definitions.
(a)
General rule.--The following words and phrases when
used in this chapter shall have the meanings given to them in
this section unless the context clearly indicates otherwise:

*"Adult
* *

family member." A person 18 years of age or older

who has the responsibility to provide care or services to an
individual with an intellectual disability or chronic
psychiatric disability.

* * *

"Child-care services." Includes any of the following :

(1)
Child day-care centers.
(2 ) Group day-care homes.
( 3 ) Family [day-care ] child-care home s .
(4)
Foster homes.
(5)
Adoptive parents .
(6)
Boarding homes for children.
(7)
Juvenile detention center services or programs for
delinquent or dependent children.
--~~...
( 8)
Mental heal th services for children.
I
EXHIBIT
I
(9) Services for children with intellectual
disabilities.
(10)
Early intervention services for children.
(11)
Drug and alcohol services for children.
(12)
Day-care servi ces or programs that are offered by
a school.
(13)
Other child-care services that are provided by or

.i

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Act of Jul. 1, 2015,P.L 94, No. 15CI. 23 - DOMESTIC RELATIONS CODE (23 PAC.S.) - OMNIBUS AMENDMENTS

subject to approval, licens.ure, registration or

certificition by the department or a county social services
agency or that are provided pursuant to a contract with the
department or a county social services agency.
The term does not apply to services provided by administrative
or other support personnel unless the administrative or other
support personnel have direct contact with children.

*"Direct
* *

volunteer contact." The c~re, supervision, guidance

or control of children and routine interaction with children.
nEducation enterprise.n An educational activity in this
Commonwealth:
(1)
for which college credits or continuing education
units are awarded, continuing professional education is
offered or tuition or fees are charged or collected; and
(2)
that is sponsored by a corporation, entity or
institution that is incorporated or authorized by other
means in a state other than this Commonwealth and is
approved and authorized -to operate in this Commonwealth
under 15 Pa.C.S. Pt. II Subpt. B (relating to business
corporations) or C (relating to nonprofit corporations) and
24 Pa.C.S. Ch. 65 (relating to private colleges,
universities and seminaries).

* * *

"Family child-care home . " A residence where child day care

is provided at any time to no less than four children and no
more than six children who are not relatives of the caregiver.

*"Immediate
* *

vicinity." An area in which an individual is

physically present with a child and can see, hear, direct and
assess the activities of the child.
"Independent contractor." An individual who provide s a
program, activity or service to an agency, institution,
organization or other entity, including a school or regularly
established religious organization, that is responsible for th e
care, supervision, guidance or control of children. The t e rm
does not [include an individual who has no] apply to
administrative or other support personnel unless the
administrative or other support personnel have direct contact
with children.

* * *

riinstitution of higher education." Any of the following:

(1)
A community college which is an institution now or
hereafter created pursuant to Article XIX-A of the act of
March 10, 1949 (P.L.30, No.14), known as the Public School
Code of 1949, or the act of August 24, 196.3 (P.L.1132,
No.484), known as the Community College Act of 1963.
(2 ) An independent institution of higher education
which . is an institution of higher education located in and
incorporated or chartered by the Commonwealth, entitled to
confer degrees as set forth in 24 Pa.C.S. 6505 . (relating
to power to confer degrees) and entitled to apply to itself
the designation "college," "university" or "seminary" as
provided for by standards and qualifications prescribed by
the State Board of Education under 24 Pa.C.S. Ch. 65.
(3)
A State-owned institution.
(4)
A State-related institution.
(5)
An education e nterprise.

*nMatriculated
* *
student."
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A student who is enrolled in an

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institution of higher education and pursuing a program of study

that results in a postsecondary credential, such as a
certificate, diploma or degree.

* * *

"Perpetrator." A person who has committed child abuse as

defined in this section. The following shall apply:
(1)
The term includes only the following:
(i)
A parent of the child.
(ii)
A spouse or former spouse of the child ' s
parent.
(iii)
A paramour or f ormer paramour of the c hild's
parent .
(iv)
A person 14 years of age or older and
responsible for the child' s welfare or having direct
contact with children as an employee of child-care
services, a .school or through a program, activity or
service.
_ (v)
An individual 14 years of age or older who
resides in the same home as the child.
(vi)
An individual 18 years of age or older who do es
not reside in the same home as the child but is related
within the third degree of consanguinity or affinity by
birth or adoption to the child.
(2)
Only the following may be considered a perpetrator
for failing to act, as provided in this section:
(i)
A parent of the child.
(ii)
A spouse or former spouse of the child ' s
parent.
(iii)
A paramour or former paramour of the child's
parent.
(iv)
A person 18 years of age or older and
responsible for the child's welfare.
(v)
A person 18 years of age or older who resides in
the same home as the child.

* * *

"P e rson responsible for the child ' s welfare." A person who
provides permanent or temporary care, supervision, mental
health diagnosis or treatment, training or control of a child
in lieu of parental care, supervision and control. [The term
includes any such person who has direct or regular contact with
a child through any program, activity or s~rvice sponsored by a
school, for-profit organization or religious or other not-forprofit organization.]

* * *

"Program, activity or s ervice."

[A public or private
educational, athletic or o ther pursuit in which children
participate. The term includes, but is not limited to, the
following:] Any of the following in which children participate
and which is sponsored by a school or a public or private
organization:
(1)
A youth camp or program.
(2)
A recreational camp or program.
(3)
A sports or athletic program.
(4)
[An] A community or social outreach program.
(5)
An enrichment or educational program.
(6)
A troop, club or similar organization.

* * *

"Routine interaction." Regular and repeated contact that is

integral to a person's employment or volunteer
responsibilities.
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* * *

School. 11 A facility providing elementary, secondary or

postsecondary educational services. The t erm includes the
following:
(1)
Any school of a school district.
(2)
An area vocational-t e chnical school.
(3)
A joint school.
(4)
An intermediate unit.
(5)
A charter school or reg i onal charter school.
(6)
A cyber charter school.
(7)
A private school licensed under the act of January
2 8, 1988 (P.L.24, No.11), known as the Private Academi c
Schools Act.
(8)
A private school accredited by an accrediting
association approved by the State Board of Education.
(9)
A nonpublic school.
(10)
[A corrununity college which is an institution now
or hereafter created pursuant to Article XIX-A of the act of
March 10, 1949 (P.L.30, No.14), known as the Pub l ic School
Code of 1949, or the act of August 24, 1963 (P.L.1132,
No.484), known as the Community College Act of 1963.
(11)
An independent institution of higher education
which is an institution of higher education which is
operated not for profit, l ocated in and incorporated or
chartered by the Commonwealth, entitled to confer degrees as
set forth in 24 Pa.C.S. 6505 (relating to power to confer
degrees) and entitled to apply to itself the designation
"college" or "university" as provided for by standards and
qua l ifications prescribed by the State Board of Education
pursuant to 24 Pa.C.S. Ch. 65 (relating to private colleges,
universities and seminaries).
(12) A State-owned university.
(13)
A State-related university. ] An institution of
11

higher educa ti.on.

(14)
A privat e school l icensed under the act of
December 15, 1986 ( P.L.1585, No. 174 ) , known as the Priva te
Licensed Schools Act.
(15 ) The Hiram G. Andrews Center.
(16)
A private residential rehabilitative institution
as defined in section 914.1-A(c) of the Public Schoo l Code
of 1949.
"School employee." An individual who is employed by a
school or who provides a program, activity or service sponsored
by a school. The term [excludes an individual who has no] does
not apply ~o administrative or other support personnel unless
the administrative or other support personnel have direct

contact with children.

* * *

Section 2 . Section 6311(a ) (7) and (12) of Title 23 ar e

amended and the subsection is amended by adding a paragraph to
read:
6311.
Persons required to report susp e cted child abuse.
(a)
Mandated reporters.--The following adults shall make a
report of suspected child abuse, subject to subsection (b), i f
the person has reasonable cause to suspe c t that a child is a
victim of child abuse:

* * *

(7)
An individual paid or unpaid, who, on the basis of
the individual's role as an integral part of a regularly
scheduled program, activity or service, [accepts
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re sponsibility for a child] is a person responsible for the

child's welfare or has direct contact with children.

* * *
An individual supervised or managed by a p er son
{12)
l i s ted under paragraphs (1), {2), (3), {4), (5), (6), {7),
(8), (9), (10) [and], (11) and (13), who has direct contact
with children in the course of employment.
* -*

(16)
An adult family member who is a person responsible
for the child's welfare and provides s ervices to a child in
a family living home, coilllltt1nity home for individuals with an
intellectual disability or host home for children which are
subject to supervision or licensure by the department under
Articles IX and X of the act of June 13, 1967 (P.L.31,
No.21), known as the Public Welfare Code.

* * *
Section 3. Section 6335 (e) of Title 23, amended Octob er 22 ,
2014 (P.L.2529, No.153), is amended to read:
6335.
Access to information in Statewide databas e.
* * *
(e )
[Clearances ] Certifications.--Information provided in
respons e to inquiries under section 6344 (relating to employe e s
having contact with children; adoptive and'foster parents),
6344.1 (relating to information relating to certified or
[ registered day-c are ] licensed child-care home residents) or
6344.2 {relating to volunteers having contact with children)
shall not include unfounded reports of child abuse or reports
related to general protective services and shall be limited to
the following:
. (1)
Whether the person was named as a perpetrator of
child abuse in a founded .or indicated report.
(2)
Whether there is an investigation pending in which
the individual is an alleged perpetrator.
(3)
The number, date of the incidents upon which the
report is based and the type of abuse or neglect involved in
any reports identified under paragraph (1) .

* * *

Section 4.
Section 6340 (a) of Title 2 3, amended October 22,
2014 (P.L.2529, No.153 ) , is amended by adding a paragraph to
read:
6340.
Release of information in confidential reports.
{a)
General rule.--Report s specified in section 6339
(relating to confidentiality of reports) shall only be made
available to:

*(18)
* *

The Department of the Auditor General in

conjunction with the performances of the duties designated
to the Office of Audi.tor General, except that the Auditor
General may not remove identifiable reports or copies
thereof from the department or county agency.

* * *
Section 5. Section 6344 (a ) , (a.1) , . (b), (b.1), (b.2), {d)
(4.1), (5), (6) and (8) and (e ) of Title 23, amended October
22, 20 1 4 (P.L.2529, No.153), are amended and the s ection is
amended by adding subsections to read:
6344.
Employees having contact with children; adoptive and
foster parents.
(a)
Applicability.--Beginning December 31, 2 014, thi s
section applies to the following individuals:
(1)
An employee of child-care services.
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(2 ) A foster parent.
(3)
A prospective adoptive parent.
(4)
A se lf-employed provider of child-care services in
a f amily [day-care provider] child-care home.
(5)
[An ] (i)
Except as provided under subparagraph
(ii), an individual 14 years of age or older who is
applying for or holding a paid position as an employe e
with a program, activity or service, as a person
responsible for the [welfare of a child] child's welfare
or having direct contact with children.
(ii)
If the program, activity or service is an
internship, externship, work study, co-op or similar
program, an adult applying for or holding a paid
position with an employer that participates in the
internship, externship ,. work study, co-.op or similar
program with a school and whom the employer and the
school identify as the child's supervisor and the person
responsible for the child's welfare while the child
participates in the program with the employer. The adult
identified under this subparagraph as the person
responsible for the child's welfare is required to be in
the immediate vicinity at regular intervals with the
child during the program.
(6)
Any individual seeking to provide child-care
s ervices under contract with a cnild-care facility or
program.
(7)
An individual 18 years of age or older who resides
in the home of a foster parent for at least 30 days in a
calendar year or who resides.in the home of a prospective
adoptive parent for at least 30 days in a calendar year.
(8)
An individual 18 years of age - or older who resides
for at least 30 days in a calendar year in the following
homes which are subject to supervision or lice_rtsure by the
department under Articles IX and X of the act of June 13,
1967 (P.L.31, No.21), known as the Public Welfare Code:
(i)
A family living home.
(ii)
A community home for individuals with an
intellectual disability.
(iii)
A host home for children.
This paragraph does not include an individual with an
intellectual disability or chronic psychiatric disability
receiving services in a home.
(a.l)
School employees.--This section shall apply to school
employees as follows:
(1)
School employees governed by the provisions of the
act of March 10, 1949 (P.L.30, No.14), known as the Public
School Code of 1949, shall be subject to the provisions of
section 111 of the Public School Code of 1949, except that
this section shall apply with regard to the [information]
certification required under subsection (b) (2).
(2)
(i)
School employees not governed by the
provisions of the Public School Code of 1949 shall be
governed by this section.
(ii)
This paragraph shall not apply to an employee
of an institution of higher education whose direct
contact with children, in the course of employment, is
limited to either:
(A)
prospective students visiting a campus
operated by the institution of higher education; or
(B)
matriculated students- who are enrolled with
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the institution.
(iii)
The exemption under subparagraph (ii) (B) shall
not apply to students who are enrolled in a secondary
school.
(a.2)
Minors.--An individual between 14 and 17 years of age
who applies for or holds a paid position as an employee who is
a person responsible for the child's welfare or a person with
direct contact with children through a program, activity or
service prior to the commencement of employment or under
section 6344.4 (relating to recertification) shall be required
to submit only the information under subsection (b) (1) and (2)
to an employer, administrator, supervisor or other person
responsible for employment decisions, if the following apply:
(1)
The individual has been a resident of this
Commonwealth during the entirety of the previous 10-year
period or, if not a resident of this Commonwealth during the
entirety of the previous 10-year period, has received
certification under subsection (b) (3) at any time since
establishing residency in this Commonwealt~ and provides a
copy of the certification to the employer.
(2)
The individual and the individual's parent or legal
guardian swear or affirm in writing that the individual is
not disqualified from service under subsection (c) or has
not been convicted of an offense similar in nature to those
crimes listed in subsection (c) under the laws or former
laws of the United States or one of its territories or
possessions, another state, the District of Columbia, the
Commonwealth of Puerto Rico or a foreign nation, or under a
former law of this Commonwealth.
(a.3)
Exchange visitor.--An individual in possession of a
nonimmigrant visa issued pursuant to 8 U.S.C. llOl(a) (15) (J)
(relating_to definitions) to an exchange visitor, commonly
referred to as a "J-1" Visa, shall not be required to submit
information under subsection (b) if all of the following apply:
(1)
The individual is applying for or holds a paid
position with a program, activity or service for a period
not to exceed a total of 90 days in a calendar year.
(2)
The individual has not been employed previously in
this Commonwealth or another state, the District of Columbia
or the Commonwealth of Puerto Rico.
(3)
The individual swears or affirms in writing that
the individual is not disqualified from service under
subsection (c) or has not been convicted of an offense
similar in nature to the crimes listed under subsection (c)
under the laws or former laws of the United States or one of
its territories or possessions, another state, the District
of Columbia, the Commonweal th of Puerto Ri.co or a foreign
nation, or under a former law of this Commonwealth.
(b)
Information to be submitted.--An individual identified
in subsection (a) (7) or (8) at the time the individual meets
the description set forth in subsection (a) (7) or (8) and an
individual identified in s ubsection (a) (1), (2), (3), (4), (5)
or (6) [or], (a.l) or (a.2) prior to the commencement of
employment or service or in accordance with section 6344.4 .
shall be required to submit the following information to an
employer, administrator, supervisor or other person responsible
for employment decisions or involved in the selection of
volunteers:
(1)
Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
history record information) , a report of criminal history
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record information from the Pennsylvania State Police or a

statement from the Pennsylvania State Police that the State
Police central repository contains no such information
re lating to that person. The criminal history record
information shall be limited to that which is disseminated
pursuant to 18 Pa.C.S. 9121 (b) (2) (relating to general
regulations).
(2)
A certification from the department as to whether
the applicant is named in the Statewide databas e as the
alleged perpetrator in a pending child abuse investigation
Or as the ~erpetrator of a founded report or an indicated
report.
(3)
A report of Federal criminal history record
information. The applicant shall submit a full set of
fingerprints to the Pennsylvania State Police for the
purpose of a record check, and the Pennsylvania Stat e Pol i ce
or its authorized agent shall submit the fingerprints to the
Federal Bureau of Investigation for the purpose of verifying
the identity of the applicant and obtaining a current re cord
of any criminal arrests and convictions.
(b.1)
Required documentation to be maintained and
produced. - -The employer, administrator, supervisor or other
person responsible for employment decisions or acceptance of the individual to serve in any capac i ty identified in
subsection (a) (1), (2), (3), (4), (5 ) or (6) [or], (a.1) or
(a.2) shall maintain a copy of the required information and
require the individual to [produce ] submit the [original
document ] required documents prior to employment or acceptance
to serve in any such capacity or as required in section 6344.4,
except as allowed under subsection (m) .
(b.2)
Investigation.--An employer, administrator,
supervisor or other person responsible for employmen~ decisions
shall require an applicant to submit the required documentation
set forth in this chapter or as required in section 6344.4. An
employer, administrator, supervisor or other person responsible
for employment decisions that intentionally fails to require an
applicant to submit the re quired documentation before the
applicant's hiring or upon recertification commits a
misdemeanor of the third degree.
(b.3)
Volunteer certification prohibition.--An employer,
administrator, supervisor or other person responsible for
employment decisions is prohibited from accepting a
certification that was obtained for volunteering purposes under
section 6344.2 (relating to volunteers having contact with
children) .

* * *

(d)
Prospective adoptive or foster parents.--With regard to
prospective adoptive or prospective foster parents, .the
following shall apply:

* * *

(4.1)
If a foster parent, prospective adoptive parent
or an individual over 18 years of age residing in the home
is arrested for or convicted of an offense that would
constitute grounds for denying approval under this chapter
or is named as a perpetrator in a founded or indicated
report, the foster parent or prospective adoptive parent
shall provide the foster family care agency or the agency
listed to provide adoption services with written notice not
later than 72 hours after the arrest , conviction or
notification that the [fost er parent ] individual was named
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as a perpetrator in the Statewide database.

(5)
Foster parents and prospective adoptive parents
shall be required to report any other change in the [foster ]
family household composition within 30 days of the change
for review by the foster family care a gency or the agency
listed to provide adoption services~ I f any individual over
18 years of age, who has resided outside this Commonwealth
at any time within the previous five-year period, ~begins
residing in the home of an approved foster family or a
prospective adoptive family, that individual shall, within
30 days of beginning residence, submit to the foster f amily
care agency or the agency listed to provide adoption
services a certification obtained from the Statewide
database, or its equivalent in each state in which the
person has resided within the previous five-year period, as
to whether the person is named as a perpetrator. If the
certification. shows that the person is named as a
perpetrator within the previous five-year period, the foster
family care agency or the agency listed to provide adoption
services shall forward the certification to the department
for review. If .the department determines that the person is
named as the equivalent of a perpetrator of a founded report
within the previous five-year period and the person does not
cease residing in the home immediately, the county agency
shall immediately seek court authorization to remove the
foster child or children from the home. In emergency
situations when a judge cannot be reached, the county agency
shall proceed in accordance with the Pennsylvania Rules of
Juvenile Court Procedure.
.
(6 ) In cases where foster parents knowingly fail to
submit the mat~rial information required in paragraphs (4.1)
and (5) and section 6344.4 [(relating to certification
compliance)] such tha t it would disqualify them as fost er
parents, the county agency shall immediately seek court
authorization to remove the foster child or children from
the home. In emergency situations when a judge cannot be
reached, the county agency shall proceed in accordance with
the Pennsylvania Rules of Juvenile Court Procedure.

* * *

(8)
The department shall require information ba se d upon
certain criteria for foster and adoptive parent
applications. The criteria shall include, but not be limit ed
to, information provided by the applicant or other sources
in the following areas:
(i)
Previous a ddresses within the last [ten ] 10
years.
(ii ) Criminal history background [clearance ]
certification generated by the process outlined in this
section.
(iii ) Child abuse [clearance] certification
generated by the process outlined in this section .
(iv)
Composition of the resident family unit.
(v)
Protection from abuse orders filed by or against
either parent, provided that such orders are ~ccessibl e
to the c ounty or private agency.
(vi)
Details of any proceedings brought in family
court, provided that such records in such proceedings
are accessible to the county or private agency.
(vii)
Drug-related or alcohol-related arrests, if
criminal charges or judicial pro cee dings ar e pending,
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and any convictions or hospitalizations within the la~t

five years. If the applicant provides information
regarding convictions or hospitalizat i ons in that five year period, then information on the prior five years
shall be requested related to any additional convictions
or hospitalizations.
(viii)
Evidence of financial stability, including
income verification, employment history, current liens
and bankruptcy findings within the last [ten] 10 years.
(ix)
Number of and ages of foster children and other
dep e ndents currently placed in the home.
(x)
Detailed information regarding children with
special needs currently living in the home.
(xi)
Previous history as a foster parent, including
number and types of children served.

(xii)
Related education, training or personal
experience working with foster children or the child
welfare system.

*(d.* 3)*

Family livl.ng homes, community homes for individuals

with an intellectual disability and host homes.-(1)
The following shall apply to an individual over 18
years of age residing in a family living home, a community
home for individuals with an intellectual disability or a
host home for children, which are subject to supervision or
licensure by the department under Articles IX and X of the
Public Welfare Code:
(i)
If an individual is arrested for or convicted of
an offense that would constitute grounds for denying
approval under this chapter, or is named as a
perpetrator in a founded or indicated report, the
individual shall provide the agency with written notice
not later than 72 hours after the arrest, conviction or
.notification that the individual was named as a
perpetrator in the Statewide database.
(ii)
The adult family member who is providing
services to a child in the home shall be required to
report any other change in the household composition
within 30 days of the change for review by the agency.
If any individual over 18 years of age, who has resided
outside this Commonwealth at any time within the
previous five-year period, begins residing in the home,
that individual shall, within 30 days of beginning
residence, submit to the agency a certification obtained
from the Sta~ewide database, or its equivalent in each
state in which the individual has ~esided within the
previous five~year period, as to whether the person is
named as a perpetrator. If the certification shows that
the person is named as a perpetrator within the previous
five-year period, the agency shall forward the
certification to the department for review.
(2)
This subsection shall not apply to an individual
with an intellectual disability or chronic psychiatric
disability receiving services in a~home.
(3) As used in this subsection, the term "agency" means
a family living home agency, community home agency for
individuals with an intellectual disability or a host home
agency.
(e)
Self-employed family [day-care] child-care providers. -Self-employed family [day ~care ] child-care providers who apply
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for a [ certificate of registration] license with the department

shall submit with.their [registration] licensure application
the information se t forth under subsection (b) for review in
accordance with this section.
* * *
Section 6.
Section 6344.1 heading, (a) and (c) of Tit l e 23,
amended October 22, 2014 (P.L.2529, No.153 ) , are amended to
rea d :
6344.1.
Information re lating to certified or [registered
day-care] licensed child-care home residents.
(a)
General rule.--In addition to the requirements of
se ction 6344 (relating to employees having contact with
children; adoptive and foster parents), an individual who
applies to the department for a certificate of compliance or a
[registration certificate] license .to provide child day care in
a res idence shall include criminal history record and child
abuse record information required under section 6344(b) for
every individual 18 years of age or older who resides in the
home for at least 3 0 days in a calendar year.
* * *
(c)
Effect on certification or [registration] licensure.-The department shall r e fuse to issue or renew a certificate of
compliance or [ registration certificate] license or sha ll
revoke a certificate of compliance or [r e gistration
certificate ] license if the day-care home provider or
individual 1 8 years of age or older who has resided in the home
for at leas t 30 days in a calendar year:
(1)
is named in the Statewide database as the
perpetrator of a founded report committed within the
immediately preceding five-year period; or
(2)
has been convicted of an offense enumerated in
section 6344 (c).
* * *
Section 7.
Section 6344.2 (a ) , (b), (b.1), (e ) and (f) of
Ti tle 23 , amended October 22, 2 014 (P.L.2529, No . 153), are
amended and the section is amended by adding subs e ctions to
read:
6344.2.
Volunteers having contact with children.
(a)
Applicability.--This section applies to an adult
applying for or holding an unpaid position as a volunteer with
a child-care service, a school or a program, activity or
service as a person responsible for the [welfare of a chi ld]
child's welfare or having direct volunteer contact with
children.
(b)
Investigation.--Employers, administrators, supervisors
or other persons responsible for selection of volunteers shall
require an applicant to submit to all requirements set forth in
section 6344(b) (relating to employees having contact with
children; adoptive and foster parents) except as provided in
subsection (b. 1). An employer, administrator, supervisor or
other person responsible for selection of volunteers regarding
an applicable prospective volunteer under this section that
intentionally fails to require the submissions . before [hiring]
approving that individual commits a misdemeanor of' the third
degree.
(b.1)
Exception. -(1)
A person responsible for the selection of
volunteers under this chapter sha ll require an applicable
prospective volunteer prior to the commencement of service
to submit only the information under section 6344(b) (1) and
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(2 ) , if the following apply:

(i)
The posi t ion the prospective volunteer is
applying for is unpaid.
(ii)
The prospective volunte e r has been a resident
of this Commonwealth during the entirety of the previous
[ten-year period.] 10-year period or, if not a resident
of this Commonwealth during the entirety of the previous
10-year period, has received certification under section
6344(b) (3) at any time since establishing residency in
this Commonwealth and provides a.copy of the
certification to the person responsible for the
selection of volunteers.
(iii)
The prospective volunteer swears or affirms in
writing that the prospective . volunteer is not
disqualified from service pursuant to section 6344 (c) or
has not been convicted of an offense similar in nature
to those cTimes listed in section 6344(c) under the laws
or former laws of the United States or one of its
territories or possessions, anothe r state, the District
of Columbia, the Commonwealth of Puerto Rico or a
foreign nation, or under a former law of this
Commonwealth.
(2)
If the information obtained pursuant to sec tion
6344(b) reveals that the prospective volunteer applicant i s
di s qualified from service pursuant to section 6344(c), the
applicant shall not be approved for service.
(3)
If all of the following apply, an individual shall
not be required to obtain the certifications required under
subsection (b) :
(i)
The individual is currently enrolled in a
school.
(ii)
The individual is not a person responsible for
the child ' s welfare.
(iii)
The individual is volunteering for an event
that occurs on school grounds.
(iv)
The event is sponsored by the school in which
the individual is enrolled as a student.
(v)
The event is not for children who are in the
care of a child-care service.

* * *

[( e ) Construction.--Nothing in this section shall b e

construed to prohibit an organization from requiring additional
information as part of the clearance process for volunteers who
are responsible for the welfare of a child or have direct
contact wi th children.]
(f)
[Provi~ional clearances for volunteers] Nonresident
volunteer certification. -- Employers, administrators,
superviso r s or other persons responsible for selecti~n of
volunteer s may allow a volunteer to serve on a provisional
basis [for a singl e period] not to excee d a total of 30 days in
a calendar year if the volunteer is in compliance with the
clearance standards under the law of the jurisdiction where the
volunteer is domiciled. The nonresident volunteer must provide
the employer, administrator, supervisor or other person
responsible for selection of volunteers with documentation of
certifications.
(g)
Waiver of fees for certain background certifications.- The fees for certificationa required under section 6344(b) (1)
and (2) which a volunteer is required to submit under this
section shall be waived, and the certifications shall be
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provided free of charge to the volunteer under the following

conditions:
(1)
The background certifications are necessary to
comply with the requirements of subsection (b).
(2)
The background certifications may not be used and
shall not be valid to satisfy the requirements for
employment under _section 6344(b) or any _other law for which
a similar background check may be required.
(3)
Back~round certifications shall only be provided
free of charge to a volunteer once every 57 months .
The volunteer swears or affirms, in writing, under
. (4)
penalty of 18 Pa.C.S. 4904 (relating to unsworn
falsification to authorities), the following:
(i)
The background certifications are necessary to
satisfy the requirements under subsection (b) .
(ii)
The volunteer has not received background
certif~cations free of charge within the previous 57
months.
(iii)
The volunteer understands that the
certifications shall not be valid or used for any other
purpose.
(h)
Presumption of good faith.--For the purposes of
criminal liability under this section, an employer,
administrator, supervisor or other persons responsible for the
selection of volunteers are presumed to have acted in good
faith when identifying individuals required to submit
certifications and maintain records as required by this
section.
Section 8.
Sections 6344.3(e) and (f) and 6344.4 of Title
23, added October 22, 2 014 (P.L.2529, No.153), are amended to
read:
6344 .3 .
Continued employment or participation in program,
activity or service.

* * *

(e)
Noninterference with decisions .- -Nothing in this
chapter shall be construed to otherwis e interfere with the
ability of an employer or person responsible for a program,
activity or service to make employment, discipline or
termination decisions or from establishing additional
[ clearance] standards as part of the hiring or selection
process for employees or volunteers.
(f)
[Transfer] Portability of certification.-[ (1)
Any person who has obtained the information
required under this chapter may transfer or provide services
to another subsidiary or branch established and supervised
by the same organization, _or serve in a volunteer capacity
for any program, service or activity, during the length of
time the person's certification is current pursuant to
section 6344.4 (relating to certification compliance).
(2)
Any employee who begins employment with a new
agency, institution, organization or other entity that is
responsible for the care, supervision, guidance or control
of chi l dren shall b e re quired to obtain a new certification
of compliance as re quired by this chapter.]
(1)
Subject to the restrictions under section 6344(b.3)
(relating to employees having contact with children;
adoptive and foster parents), if an individual's
certifications are current under section 6344.4 (relating to
recertification) and the individual completes an affirmation
under paragraph (2) , the individual may use the
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certifications as follows:
(i)
to apply for employment as identified in section
6344 (relating to employees having contact with
children; adoptive and foster parents);
(ii)
to serve as an employee as identified in
section 6344;
(iii)
to apply as a volunteer under section 6344.2
(relating to volunteers having contact with children) ;
and
(iv)
to serve as a volunteer under section 6344.2.
(2)
Prior to commencing employment or service, an
individual must swear or affirm in writing that the
individual has not been disqualifie4 from employment or
service under section 6344(c) or has not been convicted of
an offense similar in nature to a crime listed in section
6344(c) under the laws or former laws of the United States
or one of its territories or possessions, another state, the
District of Columbia, the Commonwealth of Puerto Rico or a
foreign nation, or under a former law of this Commonwealth.
(3)
An employer, administrator, supervisor, other
person responsible for employment decisions. or other person
responsible for the selection of volunteers shall make a
determinatio-n of employment or volunteer matters based on a
review of the information required under section 6344(b)
prior to employment or acceptance to service in any such
capacity and must maintain a copy of the required
information.

* * *

6344.4.
[Certification compliance] Recertification.
New certifications shall be obtained in accordance with the
following:
(1)
Effective December 31, 2014:
( i)
[A] Except as provided in subparagraph (v) , a
person identified in section 6344 (relating to employees
having contact with children; adoptive and foster
parents) shall be required to obtain the certifications
re quir e d by this chapter every [36] 60 months.
(ii)
School employees identified in section
63 4 4 (a. 1) ( 1) shall be required to obtain reports unde r
section 111 of the act of March 10, 1949 (P.L.30,
No.14), known as the Public School Code of 1949, and
under section 6344(b) (2) eve ry [36] 60 months.
(iii)
Any person identified in section 6344 with a
current certification issued prior to the effective date
of this section shall b e re quired to obtain the
certifications required by this chapter within [36] 60
months from the date of [their most recent] the person's
oldest certification or, if the current certification is
older than [36] 60 months, within one year of the
effective date of this section.
(iv)
A person identified in section 6344 without a
certif ic.a ti on or who was pr~viously not required to have
a certification shall be required to obtain the
certif-ications required by this chapter no later than
December 31, 2015.
(2)
(i)
Effective [July 1, ] August 25, 2015, a person
identified in section 6344. 2 (relating to volunteers
having contact with children) shall be required to
obtain the certifications required by this chapter every
[36] 60 months[.] from the date of the person's most

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7128/2015

recent certification or, if the current certification is

older than 60 months, within one year of the effective
date of this section.
(ii)
A person identified under section 6344.2
without a certification or who was previously not
required to have a certification shall be required to
obtain the certifications required by this chapter no
later than July 1, 2016.
(3)
For renewals of certification required under this
chapter, the date for required renewal under this section
shall be from the date of the oldest certification under
section 6344(b).
Section 8.1.
Sections 6383(c1 (1), (2 ) and (3 ) and 6386 (a )
of Title 23 are amended to read:
6383.
Education and training.

* * *
(c)

Training of persons subj e ct to department regulat,ion. -(1)

The following persons shall be required to meet the
child abuse recognition and reporting training requirement s
o~ this subsection:
(i)
Operators of institutions, facilities or
agencies which care for children and are subject to
supervision by the department under Article IX of the
Public Welfare Code, and their employees who have dir ec t
contact with children.
(ii)
Foster parents.
(iii)
Operators of facilities and agencies which
care for children and are subject to licensure by the
department under Article X of the Public Welfare Code
and their employees who have direct contact with
children.
(iv)
Caregivers in family [day care] child-care
homes which are subject to [registration] licensure by
the department under [Subarticle ( c) of] Article X of
the Public Welfare Code and their employees who have
direct contact with children.

(v)
The adult family member who is a person
responsible for the child's welfare and is providing
services to a child in a family living home, a community
home for individuals with an intellectual disability or
a host home which is subject to supervision OR licensure
by the department under Articles IX and X of the Public
Welfare Code.
(2 ) Within six months of the effective date of thi~
subsec t ion, operators a nd .caregivers shall receive three
hours of training prior to the issuance of a license[, ] or
approval [or registration] certificate and three hours of
training every five years thereafter.
(3)
Employees who have direct contact with children and
foster parents shall receive three hours of training within
six months of the issuance of a license[,] or approval [or
registration] certificate and three hours of training every
five years. thereafter. New employees and new foster parents
shall receive three hours of training within 90 days of hire
or approval as a foster parent and three hour s of training
every five years thereafter.

* * *

6386.
Mandatory report i ng of children under one year of age.
(a ) Wh en report to be made.--A health care provider shall
immediately make a report or cause a report to be made to the

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7/2812015 , .

appropriate county agency if the provider is involved in the

lielivery or care of a child under one year of age who i s born
and identified as being affected by any of the following:
(1)
Illegal substance abuse by the child's mother.
(2)
Withdrawal symptoms resulting from prenatal drug
exposure[ .] unless the child's mother, during the pregnancy,
was: .
(i)
under the care of a prescribing medical
professional; and
(ii)
in compliance with the directions for the
administration of a presc-ription drug as directed by the
prescribing medical professional.
(3)
A Fetal Alcohol Spectrum Disorder.

* * *

Section 9.
The amendment of 2 3 Pa.C.S. 6344.4( 2 ) (i) if
enacted after July 1, 2015, shall be retroactive to July 1,
2015.
Section 10.
This act shall take e ffect immediat e ly.
APPROVED- - Th e 1st day of July, A.D. 2 01 5 .
TOM WOLF

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16116

.
.
ASSOCIATION OF PENNSYLVANIA STATE
COLLEGE AND UNIVERSITY FACULTIES

CHARGE OF UNFAIR PRACTICE(S)

UNDER THE PUBL1C EMPLOYE
RELATIONS ACT

COMPLAINANT

DO NOT WRITE IN THIS SPACE

CASE NO.

v.

PENNSYLVANIA STATE SYSTEM OF HIGHER

EDUCATION,

DATE FILED

RESPONDENT
TO THE HONORABLE, THE MEMBERS OF THE PENNSYLVANIA LABOR RELATIONS BOARD:
COMPLAINANT INFORMATION

Association of Pennsylvania State College and University Faculties

Public Employe, Employe Organization or Public Employer

Julie A. Reese

Director
Trtle

Name of Person filing charge on behalf of Complainant

319 North Front Street

Address

Harrisburg

17101

PA

City

State

Zip

(717) 236-7486
Telephone

HEREBY CHARGES THAT:

RESPONDENT INFORMATION

Pennsylvania State System of Higher Education,

Public Employer, Employe Organization or Public Employe alleged to have committed unfair practice(s)

2986 North Second Street

Address

Harrisburg

17110

PA

City

State

Zip

(717) 720-4000
Telephone

HAS ENGAGED IN UNFAIR PRACTICE(S) CONTRARY TO THE PROVISIONS OF THE

PUBLIC EMPLOYE RELATIONS ACT, SECTION 1201 AS FOLLOWS:

Choose one:
subsection (a)
0 subsection (b)

D
0

Choose all that apply:

0 clause (1)
D clause (4)
D clause (2)
IZl clause (5)
D clause (3)
D clause (6)

D clause (7)
D clause (8)
D clause (9)

Check here if more than one respondent and list on separate sheet
Check here if a grievance relating to this issue has been filed and enclose three (3) copies of the grievance
and one (1) copy of the Collective Bargaining Agreement to assist in ra\tiew of this charge . .
FAILURE TO ENCLOSE THESE DOCUMENTS WILL CAUSE A DELAY IN PROCESSING.

PERA-9 REV 5-09(Page 1)

EXHl.BIT

SPECIFICATION OF CHARGES
Set forth all of the events alleged to constitute the unfair practice(s). Include specific facts, dates, names, addresses, place of
occurrence, and Qther relevant facts. If additional space is needed, please continue on additional sheet(s).

The above-named Employer violated 1201 (a)(1) and (5) of the Act on July 24, 2015, when it refused APSCUF's demand
to bargain over application of its policy requiring (1) criminal background checks of current faculty members and (2)
requiring faculty members to report arrest or conviction for 20 listed crimes, even though those faculty members are not
subject to the background checks and reporting requirements of the Child Protective Services Law, as amended effective
July 1, 2015. On July 27, 2015, APSCUF learned that the Employer had begun to enforce this policy. On or about July
24, 2015, the Employer also told APSCUF that it would discharge employees whose criminal background checks showed
c~mvictions of certain crimes, and that it would disciple or discharge employees who failed to obtain background checks.

WHEREFORE, the Complainant respectfully requests the Pennsylvania Labor Relations Board to enter the charge upon the Docket of
the said Board and to issue and cause to be served upon the Respondent above named a Complaint stating the charge(s) of unfair
practice(s).

COMMONWEAL TH OF PENNSYLVANIA
SS

COUNTY OF

On this

/8 11:::-

kf'-..

day of

e4v3 r+LL

County and State, personally appeared

:JV l;ie.

20

IS'

before me, a

. .

.4 {2.e ~ ,z,

in and for said

duly sworn according to law, deposes and

says that he/she is the person filing the foregoing CHARGE OF UNFAIR PRACTICE(S) and is aware of the contents hereof and that
the matters and facts set forth herein are true and c~5JitM.io.the.best Qf h~ or her knowledge, information and belief.
0NWtA1.TH OF PENNSYLVANJA
SWORN AND. SUBSCRIBED TO before me
the day and year first aforesaid.

Notarial Seal
Luz Espinal, Notary Public
Qty of Harrisburg, Dauphin County
My Commission Expires June 14, 2017

MEMBER, PEHNSYLVANIA "5SOCIATION OF NOTAAIES

{?(~V'.Q
. . I

FAILURE TO FILE AN ORIGINAL AND THREE (3) COPIES OF THE CHAAGE

AND ALL ACCOMPANYING EXHIBITS MAY CAUSE A DELAY IN PROCESSING.
Commonwealth of Pennsylvania

PERA-9 REV >09 (Page 2)

I Pennsylvania

Labor Relations Board I 651 Boas Street, Room 418

717.787.1091 I Fax 717.783.2974 I www.dli.state.pa.us

I Harrisburg,

Auxiliary aids and services are available upon request to individuals with disabilities.
Equal Opportunity Employer/Program

PA 17121-0750

\J

~~APSCUF
'

ASSOCIATION OF PENNSYLVANIA
STATE COLLEGE & UNIVERSITY FACULTIES

BLOOMSBURG
EDINBORO
MILLERSVILLE

CALIFORNIA
INDIANA

CHEYNEY

KUTZTOWN

SHIPPENSBURG

"CLARION

LOCK HAVEN
SLIPPERY ROCK

EAST STROUDSBURG
MANSFIELD
WEST CHESTER

August 7, 2015

Via Email (hard copy to follow by U. S. Mail)

Ms. Lisa A. Sanno

Assistant Vice Chancellor for Labor Relations
Pennsylvania State System of Higher Education
Dixon University Center
2986 North Second Street
Harrisburg, PA 17110
RE:

ST APSCUF - Protection of Min.ors Policy and Background Check Policy

APSCUF #2015-002ST

Dear Ms. Sanno:

APSCUF is filing the above-referenced grievance directly at Step Three of the grievance
procedure.
I will appreciate an early reply.

MRDQ/arb
Attachment
cc w/ attachment: Statewide Executive Council
State APSCUF Meet & Discuss Team
Chapter Presidents

EXHIBIT

~
319 N. Front.Street, Harrisburg, PA 17101
P (717) 236-7486 TF (800) 932-0587 F (717) 236-1883
www.apscuf.org

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.: . . . :. '. .Local .Grievance#

. State Grievance#

:~~~~ ~ept of Grievant Kenneth M. Mash. President

p,\. >_.,-_~~~~ ~ddress 319 N. Front Street, Harrisburg, PA 17101
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writt~n statement of the grievance, citations of the articles violated as well .as the re.quested re1ief.

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... , . .~ . <;J-~~vance Chair's Signature

Date_ _ _ _ _ _ _ __

.:.. ,. .: ...Attached is a written statement of the grievance~ citations of the articles violated as wen as the requested relief.
.Re~~ipt by President/Designee

Signature

Date

Disposition by President/Designee: Attach written response and send copies to the Grievant and APSCUF Grievance

.Chairperson.
,.

Received by Grievance Chair

Signature

Date

STEP THREE:. This ~has not~ resol.ved at Step Two and is submitted to Step Three.

~~- ~

Grievant'sSignature
Grievance Chair's Signature
Hbg. APSCUF Staff

ts:.

Signature~ ~C&JJ

Date

K-']-f')'

Dato.
Date

i-7-rS

aar:6/C

PROTECTION .OF 1v1INORS POLICY GRIEVANCE

CBA sections violated: Art. 1, 13, 15, 31
The State System is violating the collective bargaining agreement by (1)
continuing to apply its Protection of Minors policy, adopted pursuant to
amendments to the Child Protective SerVices Law effective Dec. 31, 2014, to
employees who are now exempt from application of the law by Act 15 of2015,
effective July 1, 2015~ and (2) requiring renewal of background checks more
frequently than the newly amended law requires. The Employer is also violating
the CEA by threatening employees with discharge and discipline for failing to
comply with its improper policy.

APSCUF learned of the continuing application of the policy to exempt employees

on July 27, 2015.
Relief requested: Cease and desist from applying the above-named policy to
employees exempt from the criminal history check and child abuse certification
reporting requirements of the law; destroy all criminal history checks and child
abuse certifications obtained about exempt employees, and any materials related
thereto, including but not limited to fingerprints; for any employees subject to the
law, cease and desist from requiring background checks and child abuse
certifications more frequently than the law requires.

VERIFICATION

I, JULIE A. REESE, certify that I am employed as director of the

labor relations department of the Association of Pennsylvania State College
and University Faculties ("APSCUF"), and that I am authorized by APSCUF to
verify the foregoing document. I certify that the statements made in the
foregoing document are true and correct to the best of my knowledge,
information and belief. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification
to authorities.

u
~--~--=::::..:...._

s::J~0\._

Julie .N. R
eese
Date:

o-~-1'6-\'5

12

f)

CERTIFICATE OF SERVICE

I certify that I have this day served a true and correct copy of the
foregoing document by hand delivery to:

Office of the Chief Counsel

Pennsylvania State System of Higher Education
2986 North Second Street
Harrisburg, PA 17110

Date:

18 2-0 r ~

By:~
~

13