STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS [49 PA. CODE CHS. 48 AND 49] Child Abuse Reporting Requirements [35 Pa.B. 5525] The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors (Board) proposes to add §§ 48.51--48.57 and 49.51--49.57 to read as set forth in Annex A. The proposed regulations relate to child abuse reporting requirements pertaining to licensed marriage and family therapists and licensed professional counselors.
Effective Date
The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
The Board is authorized to adopt regulations necessary for the administration of its enabling statute under section 6(2) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (63 P. S. § 1906(2)) and 23 Pa.C.S. Chapter 63 (relating to Child Protective Services Law) (CPSL), specifically sections 6311(b) and 6383(b)(2) of the CPSL (relating to persons required to report suspected child abuse; and education and training).
Sunset Date
The Board continuously monitors its regulations. Therefore, no sunset date has been assigned.
Background and Purpose
The proposed regulations are responsive to the statutory mandate of section 6383(b)(2) of the CPSL, which requires that each licensing board with jurisdiction over professional licensees identified as mandated reporters of child abuse promulgate regulations on the responsibilities of mandated reporters. The mandated reporters enumerated in section 6311(b) of the CPSL include mental health professionals. The Board has fulfilled its rulemaking responsibilities pertaining to licensed social workers. With the enactment of the act of December 21, 1998 (No. 136, P. L. 1017), which created the new licensure classifications of marriage and family therapists and professional counselors, the Board now intends to promulgate similar reporting provisions for licensed marriage and family therapists and professional counselors.
The child abuse reporting requirements proposed by these regulations are, with few exceptions, recapitulations of the statutory requirements imposed upon persons required to report suspected child abuse under the CPSL. Following is a description of the proposed rulemaking.
§§ 48.51 and 49.51. Definitions relating to child abuse reporting requirements.
Definitions are proposed in §§ 48.51 and 49.51 for the following words and phrases used throughout the regulations: ''child abuse,'' ''ChildLine,'' ''individual residing in the same home as the child,'' ''perpetrator,'' ''person responsible for the child's welfare,'' ''recent acts or omissions,'' ''serious mental injury,'' ''serious physical injury'' and ''sexual abuse or exploitation.'' With the exception of the definition of ''ChildLine'' which is tailored after the Department of Public Welfare's definition found in 55 Pa. Code § 3490.4 (relating to definitions), the proposed definitions provided for the terms are those contained in section 6303 of the CPSL (relating to definitions).
§§ 48.52 and 49.52. Suspected child abuse--mandated reporting requirements.
Proposed §§ 48.52 and 49.52 announce mandatory reporting requirements for persons required to report suspected child abuse under section 6311 of the CPSL. Subsection (a) states the general rule that licensed marriage and family therapists and licensed professional counselors who come into contact with children shall make a report of suspected child abuse. Subsection (b) states the reporting requirements under section 6311(c) of the CPSL for licensed marriage and family therapists and professional counselors who are staff members of a medical or other public or private institution, school, facility or agency. Subsections (c) and (d), respectively, state the procedures for reporting child abuse as required under section 6313 of the CPSL (relating to reporting procedure). Proposed subsection (c) instructs licensees that reports of suspected child abuse shall be made immediately by telephone to ChildLine, and in writing within 48 hours after the oral report, to the appropriate county children and youth social service agency.
§§ 48.53 and 49.53. Photographs, medical tests and X-rays of child subject to report.
Under section 6314 of the CPSL (relating to photographs, medical tests and X-rays of child subject to report), persons or officials who are required to report cases of suspected child abuse are permitted to take photographs of the child who is subject to a report and, if clinically indicated, cause to be performed a radiological examination and other medical tests on the child. Proposed §§ 48.53 and 49.53 advises licensed marriage and family therapists and professional counselors of this information and of other relevant information which shall be forwarded to the appropriate county children and youth social service agency concurrently with the written report or as soon thereafter as possible.
§§ 48.54 and 49.54. Suspected death as a result of child abuse--mandated reporting requirement.
Section 6317 of the CPSL (relating to mandatory reporting and postmortem investigation of deaths) provides that a person or official required to report cases of suspected child abuse who has reasonable cause to suspect that a child died as a result of child abuse shall report that suspicion to the appropriate coroner. Proposed §§ 48.54 and 49.54 advise licensed marriage and family therapists and professional counselors of this statutory mandate.
§§ 48.55 and 49.55. Immunity from liability.
Proposed §§ 48.55 and 49.55 advise licensed marriage and family therapists and professional counselors that under section 6318 of the CPSL (relating to immunity from liability), those who participate in good faith in the making of a report of suspected child abuse, cooperating with an investigation, testifying in a proceeding or taking photographs, shall have immunity from civil and criminal liability that might result by reason of the licensed marriage and family therapist's or professional counselor's actions. The proposed sections also inform licensed marriage and family therapists and licensed professional counselors that under section 6318 of the CPSL, the good faith of the licensed marriage and family therapist or licensed professional counselor will be presumed for the purpose of any civil or criminal proceeding. The Board also proposes in §§ 48.55 and 49.55 to extend the good faith presumption to disciplinary proceedings against a licensed marriage and family therapist or licensed professional counselor that results by reason of the licensed marriage and family therapist's or professional counselor's actions in participating in good faith in the making of a report of suspected child abuse.
§§ 48.56 and 49.56. Confidentiality--waived.
Section 6383(b)(2) of the CPSL requires that the regulations promulgated by licensing boards having jurisdiction over professional licensees identified as mandated reporters ''shall clarify that the provisions of this chapter take precedence over any professional standard that might otherwise apply in order to protect children from abuse.'' Sections 48.56 and 49.56 propose to address this statutory mandate by clarifying that the child abuse reporting requirements announced in these chapters take precedence over any client confidentiality, ethical principle or professional standard that might otherwise apply.
§§ 48.57 and 49.57. Noncompliance.
Proposed §§ 48.57 and 49.57 advise licensed marriage and family therapists and licensed professional counselors of the consequences of noncompliance with the child abuse reporting requirements of §§ 48.52--48.54 and §§ 49.52--49.54 (relating to suspected child abuse-mandated reporting requirements; photographs, medical tests and X-rays of child subject to report; and suspected death as a result of child abuse-mandated reporting requirement). As proposed, licensed marriage and family therapists and licensed professional counselors are advised under subsection (a) that a willful failure to comply with the reporting requirements will result in disciplinary action under section 11 of the act (63 P. S. § 1911). Subsection (b) advises licensed marriage and family therapists and professional counselors of the criminal penalties available under section 6319 of the CPSL (relating to penalties for failure to report), for the same willful noncompliance with the reporting requirements.
Fiscal Impact and Paperwork Requirements
The proposed rulemaking will have no fiscal impact on the Commonwealth or its political subdivisions. As mandated reporters, licensed marriage and family therapists and professional counselors may incur additional paperwork in complying with the child abuse reporting requirements announced by these proposed regulations.
Sunset Date
The Board continuously monitors its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 26, 2005, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis form to the Independent Regulatory Review Commission (IRRC), and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations and objections raised.
Public Comment
Interested persons are invited to submit written comments, recommendations or objections regarding the proposed rulemaking to Sandra Matter, Administrative Assistant, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin.
RONALD E. HAYS,
ChairpersonFiscal Note: 16A-6910. No fiscal impact; (8) recommends adoption.
Annex A TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS PART I. DEPARTMENT OF STATE Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS Chapter 48. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS--LICENSURE OF MARRIAGE AND FAMILY THERAPISTS CHILD ABUSE REPORTING REQUIREMENTS § 48.51. Definitions relating to child abuse reporting requirements.
The following words and terms, when used in this section and §§ 48.52--48.57 (relating to child abuse reporting requirements), have the following meanings, unless the context clearly indicates otherwise:
Child abuse--The term includes any of the following:
(i) A recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age.
(ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iii) A recent act, failure to act or series of acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide the essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning.
ChildLine--An organizational unit of the Department of Public Welfare, which operates a 24-hour a day Statewide toll free telephone system for receiving reports of suspected child abuse, referring reports for investigation and maintaining the reports in the appropriate file.
Individual residing in the same home as the child--An individual who is 14 years of age or older and who resides in the same home as the child.
Perpetrator--A person who has committed child abuse and is a parent of the child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child's parent.
Person responsible for the child's welfare--
(i) 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.
(ii) The term does not include a person who is employed by or provides services or programs in a public or private school, intermediate unit or area vocational-technical school.
Recent acts or omissions--Acts or omissions committed within 2 years of the date of the report to the Department of Public Welfare or county agency.
Serious mental injury--A psychological condition, as diagnosed by a physician or licensed psychologist including the refusal of appropriate treatment, that does one or more of the following:
(i) Renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child's life or safety is threatened.
(ii) Seriously interferes with a child's ability to accomplish age-appropriate developmental and social tasks.
Serious physical injury--An injury that causes a child severe pain or significantly impairs a child's physical functioning, either temporarily or permanently.
Sexual abuse or exploitation--The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct or a simulation of sexually explicit conduct for the purpose of producing a visual depiction, including photographing, videotaping, computer depicting or filming, of sexually explicit conduct or the rape, sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, molestation, incest, indecent exposure, prostitution, statutory sexual assault or other form of sexual exploitation of children.
§ 48.52. Suspected child abuse--mandated reporting requirements.
(a) General rule. Under 23 Pa.C.S. § 6311 (relating to persons required to report suspected child abuse), licensed marriage and family therapists who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made to the Department of Public Welfare when they have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is a victim of child abuse.
(b) Staff members of public or private agencies, institutions and facilities. Licensed marriage and family therapists who are staff members of a medical or other public or private institution, school, facility or agency, and who, in the course of their employment, occupation or practice of their profession, come into contact with children shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge when they have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is a victim of child abuse. Upon notification by the licensed marriage and family therapist, the person in charge or the designated agent shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with subsections (a), (c) and (d).
(c) Reporting procedure. Reports of suspected child abuse shall be made by telephone and by written report.
(1) Oral reports. Oral reports of suspected child abuse shall be made immediately by telephone to ChildLine, (800) 932-0313.
(2) Written reports. Written reports shall be made within 48 hours after the oral report is made by telephone. Written reports shall be made on forms available from a county children and youth social service agency.
(d) Written reports. Written reports shall be made in the manner and on forms prescribed by the Department of Public Welfare. The following information shall be included in the written reports, if available:
(1) The names and addresses of the child and the parents or other person responsible for the care of the child, if known.
(2) Where the suspected abuse occurred.
(3) The age and sex of the subjects of the report.
(4) The nature and extent of the suspected child abuse including any evidence of prior abuse to the child or siblings of the child.
(5) The name and relationship of the persons responsible for causing the suspected abuse, if known, and any evidence of prior abuse by those persons.
(6) Family composition.
(7) The source of the report.
(8) The person making the report and where that person can be reached.
(9) The actions taken by the reporting source, including the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner.
(10) Other information which the Department of Public Welfare may require by regulation.
§ 48.53. Photographs, medical tests and X-rays of child subject to report.
A licensed marriage and family therapist may take or cause to be taken photographs of the child who is subject to a report and, if clinically indicated, cause to be performed a radiological examination and other medical tests on the child. Medical summaries or reports of the photographs, X-rays and relevant medical tests taken shall be sent to the county children and youth social service agency at the time the written report is sent or as soon thereafter as possible. The county children and youth social service agency shall have access to actual photographs or duplicates and X-rays and may obtain them or duplicates of them upon request.
§ 48.54. Suspected death as a result of child abuse--mandated reporting requirement.
A licensed marriage and family therapist who has reasonable cause to suspect that a child died as a result of child abuse shall report that suspicion to the coroner of the county where death occurred or, in the case where the child is transported to another county for medical treatment, to the coroner of the county where the injuries were sustained.
§ 48.55. Immunity from liability.
Under 23 Pa.C.S. § 6318 (relating to immunity from liability), a licensed marriage and family therapist who participates in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs shall have immunity from civil and criminal liability that might result by reason of the licensed marriage and family therapist's actions. For the purpose of any civil or criminal proceeding, the good faith of the licensed marriage and family therapist shall be presumed. The Board will uphold the same good faith presumption in any disciplinary proceeding that might result by reason of a licensed marriage and family therapist's actions in participating in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs.
§ 48.56. Confidentiality--waived.
To protect children from abuse, the reporting requirements of §§ 48.52--48.54 (relating to suspected child abuse--mandated reporting requirements; photographs, medical tests and X-rays of child subject to report; and suspected death as a result of child abuse--mandated reporting requirement) take precedence over the provisions of any client confidentiality, ethical principle or professional standard that might otherwise apply.
§ 48.57. Noncompliance.
(a) Disciplinary action. A licensed marriage and family therapist who willfully fails to comply with the reporting requirements in §§ 48.52--48.54 (relating to suspected child abuse mandated reporting requirements; photographs, medical tests and X-rays of child subject to report; and suspected death as a result of child abuse--mandated reporting requirement) will be subject to disciplinary action under section 11 of the act (63 P. S. § 1911).
(b) Criminal penalties. Under 23 Pa.C.S. § 6319 (relating to penalties for failure to report), a licensed marriage and family therapist who is required to report a case of suspected child abuse who willfully fails to do so commits a summary offense for the first violation and a misdemeanor of the third degree for a second or subsequent violation.
CHAPTER 49. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS--LICENSURE OF PROFESSIONAL COUNSELORS CHILD ABUSE REPORTING REQUIREMENTS § 49.51. Definitions relating to child abuse reporting requirements.
The following words and terms, when used in this section and §§ 48.52--48.57 (relating to child abuse reporting requirements), have the following meanings, unless the context clearly indicates otherwise:
Child abuse--A term meaning any of the following:
(i) A recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age.
(ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iii) A recent act, failure to act or series of acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide the essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning.
ChildLine--An organizational unit of the Department of Public Welfare, which operates a 24-hour a day Statewide toll free telephone system for receiving reports of suspected child abuse, referring reports for investigation and maintaining the reports in the appropriate file.
Individual residing in the same home as the child--An individual who is 14 years of age or older and who resides in the same home as the child.
Perpetrator--A person who has committed child abuse and is a parent of the child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child's parent.
Person responsible for the child's welfare--
(i) 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.
(ii) The term does not include a person who is employed by or provides services or programs in a public or private school, intermediate unit or area vocational-technical school.
Recent acts or omissions--Acts or omissions committed within 2 years of the date of the report to the Department of Public Welfare or county agency.
Serious mental injury--A psychological condition, as diagnosed by a physician or licensed psychologist including the refusal of appropriate treatment, that does one or more of the following:
(i) Renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child's life or safety is threatened.
(ii) Seriously interferes with a child's ability to accomplish age-appropriate developmental and social tasks.
Serious physical injury--An injury that causes a child severe pain or significantly impairs a child's physical functioning, either temporarily or permanently.
Sexual abuse or exploitation--The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct or a simulation of sexually explicit conduct for the purpose of producing a visual depiction, including photographing, videotaping, computer depicting or filming, of sexually explicit conduct or the rape, sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, molestation, incest, indecent exposure, prostitution, statutory sexual assault or other form of sexual exploitation of children.
§ 49.52. Suspected child abuse--mandated reporting requirements.
(a) General rule. Under 23 Pa.C.S. § 6311 (relating to persons required to report suspected child abuse), licensed professional counselors who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made to the Department of Public Welfare when they have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is a victim of child abuse.
(b) Staff members of public or private agencies, institutions and facilities. Licensed professional counselors who are staff members of a medical or other public or private institution, school, facility or agency, and who, in the course of their employment, occupation or practice of their profession, come into contact with children shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge when they have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is a victim of child abuse. Upon notification by the licensed professional counselor, the person in charge or the designated agent shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with subsections (a), (c) and (d).
(c) Reporting procedure. Reports of suspected child abuse shall be made by telephone and by written report.
(1) Oral reports. Oral reports of suspected child abuse shall be made immediately by telephone to ChildLine, (800) 932-0313.
(2) Written reports. Written reports shall be made within 48 hours after the oral report is made by telephone. Written reports shall be made on forms available from a county children and youth social service agency.
(d) Written reports. Written reports shall be made in the manner and on forms prescribed by the Department of Public Welfare. The following information shall be included in the written reports, if available:
(1) The names and addresses of the child and the parents or other person responsible for the care of the child, if known.
(2) Where the suspected abuse occurred.
(3) The age and sex of the subjects of the report.
(4) The nature and extent of the suspected child abuse including any evidence of prior abuse to the child or siblings of the child.
(5) The name and relationship of the persons responsible for causing the suspected abuse, if known, and any evidence of prior abuse by those persons.
(6) Family composition.
(7) The source of the report.
(8) The person making the report and where that person can be reached.
(9) The actions taken by the reporting source, including the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner.
(10) Other information which the Department of Public Welfare may require by regulation.
§ 49.53. Photographs, medical tests and X-rays of child subject to report.
A licensed professional counselor may take or cause to be taken photographs of the child who is subject to a report and, if clinically indicated, cause to be performed a radiological examination and other medical tests on the child. Medical summaries or reports of the photographs, X-rays and relevant medical tests taken shall be sent to the county children and youth social service agency at the time the written report is sent or as soon thereafter as possible. The county children and youth social service agency shall have access to actual photographs or duplicates and X-rays and may obtain them or duplicates of them upon request.
§ 49.54. Suspected death as a result of child abuse--mandated reporting requirement.
A licensed professional counselor who has reasonable cause to suspect that a child died as a result of child abuse shall report that suspicion to the coroner of the county where death occurred or, in the case where the child is transported to another county for medical treatment, to the coroner of the county where the injuries were sustained.
§ 49.55. Immunity from liability.
Under 23 Pa.C.S. § 6318 (relating to immunity from liability), a licensed professional counselor who participates in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs shall have immunity from civil and criminal liability that might result by reason of the licensed professional counselor's actions. For the purpose of any civil or criminal proceeding, the good faith of the licensed professional counselor shall be presumed. The Board will uphold the same good faith presumption in any disciplinary proceeding that might result by reason of a licensed professional counselor's actions in participating in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs
§ 49.56. Confidentiality--waived.
To protect children from abuse, the reporting requirements of §§ 49.52--49.54 (relating to suspected child abuse--mandated reporting requirements; photographs, medical tests and X-rays of child subject to report; and suspected death as a result of child abuse--mandated reporting requirement) take precedence over the provisions of any client confidentiality, ethical principle or professional standard that might otherwise apply.
§ 49.57. Noncompliance.
(a) Disciplinary action. A licensed professional counselor who willfully fails to comply with the reporting requirements in §§ 49.52--49.54 (relating to suspected child abuse--mandated reporting requirements; photographs, medical tests and X-rays of child subject to report; and suspected death as a result of child abuse--mandated reporting requirement) will be subject to disciplinary action under section 11 of the act (63 P. S. § 1911).
(b) Criminal penalties. Under 23 Pa.C.S. § 6319 (relating to penalties for failure to report), a licensed professional counselor who is required to report a case of suspected child abuse who willfully fails to do so commits a summary offense for the first violation and a misdemeanor of the third degree for a second or subsequent violation.
[Pa.B. Doc. No. 05-1855. Filed for public inspection October 7, 2005, 9:00 a.m.]
