PRINTER'S NO. 3717
No. 2519 Session of 2004
INTRODUCED BY BIRMELIN, ARMSTRONG, BAKER, BENNINGHOFF, COLEMAN,
DAILEY, DeLUCA, GEIST, HICKERNELL, LEH, MILLARD, RUBLEY,
STERN, THOMAS, TIGUE, WATSON, WEBER, WILT, SATHER AND
S. MILLER, APRIL 13, 2004
REFERRED TO COMMITTEE ON CHILDREN AND YOUTH, APRIL 13, 2004
AN ACT
1 Amending Title 23 (Domestic Relations) of the Pennsylvania
2 Consolidated Statutes, further providing for grounds for
3 denying employment and for existing or transferred employees;
4 and providing for certificate of employability for certain
5 applicants or employees and for powers and duties of the
6 Bureau of Professional and Occupational Affairs.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Section 6303(a) of Title 23 of the Pennsylvania
10 Consolidated Statutes is amended by adding a definition to read:
11 § 6303. Definitions.
12 (a) General rule.--The following words and phrases when used
13 in this chapter shall have the meanings given to them in this
14 section unless the context clearly indicates otherwise:
15 * * *
16 "Bureau." The Bureau of Professional and Occupational
17 Affairs in the Department of State.
18 * * *
19 Section 2. Section 6344(c) and (k) of Title 23 are amended
1 to read:
2 § 6344. Information relating to prospective child-care
3 personnel.
4 * * *
5 (c) Grounds for denying employment.--
6 (1) In no case shall an administrator hire an applicant
7 where the department has verified that the applicant is named
8 in the central register as the perpetrator of a founded
9 report of child abuse committed within the five-year period
10 immediately preceding verification pursuant to this section.
11 (2) In no case shall an administrator hire an applicant
12 if the applicant's criminal history record information
13 indicates the applicant has been convicted of one or more of
14 the following offenses under [Title 18] 18 Pa.C.S. (relating
15 to crimes and offenses) or an equivalent crime under Federal
16 law or the law of another state:
17 Chapter 25 (relating to criminal homicide).
18 Section 2604 (relating to murder of unborn child).
19 Section 2605 (relating to voluntary manslaughter of
20 unborn child).
21 Section 2606 (relating to aggravated assault of unborn
22 child).
23 Section 2702 (relating to aggravated assault), if it is
24 graded as a felony of the first degree.
25 Section 2709.1 (relating to stalking).
26 Section 2901 (relating to kidnapping).
27 Section 2902 (relating to unlawful restraint).
28 Section 3121 (relating to rape).
29 Section 3122.1 (relating to statutory sexual assault).
30 Section 3123 (relating to involuntary deviate sexual
20040H2519B3717 - 2 -
1 intercourse).
2 Section 3124.1 (relating to sexual assault).
3 Section 3125 (relating to aggravated indecent assault).
4 Section 3126 (relating to indecent assault).
5 Section 3127 (relating to indecent exposure).
6 Section 4302 (relating to incest).
7 Section 4303 (relating to concealing death of child).
8 Section 4304 (relating to endangering welfare of
9 children).
10 Section 4305 (relating to dealing in infant children).
11 A felony offense under section 5902(b) (relating to
12 prostitution and related offenses).
13 Section 5903(c) or (d) (relating to obscene and other
14 sexual materials and performances).
15 Section 6301 (relating to corruption of minors).
16 Section 6312 (relating to sexual abuse of children).
17 Section 6320 (relating to sexual exploitation of
18 children).
19 The attempt, solicitation or conspiracy to commit any of
20 the offenses set forth in this paragraph.
21 (3) In no case shall an administrator hire an applicant
22 if the applicant's criminal history record information
23 indicates the applicant has been convicted of a felony
24 offense under the act of April 14, 1972 (P.L.233, No.64),
25 known as The Controlled Substance, Drug, Device and Cosmetic
26 Act, committed within the five-year period immediately
27 preceding verification under this section.
28 (4) In no case shall an administrator hire an applicant
29 required to submit information under subsection (a) if the
30 applicant's criminal history record information indicates the
20040H2519B3717 - 3 -
1 applicant has been convicted within a ten-year period
2 preceding the date of the report, not including any time
3 spent in incarceration, of one of the following offenses
4 under 18 Pa.C.S. or an equivalent crime under Federal law:
5 Section 2702, unless graded as a felony of the first
6 degree.
7 Section 2713 (relating to neglect of care-dependent
8 person).
9 Section 2904 (relating to interference with custody of
10 children).
11 Section 2909 (relating to concealment of whereabouts of a
12 child).
13 An offense under one of the following provisions of 18
14 Pa.C.S. which is graded as a misdemeanor:
15 Section 2910 (relating to luring a child into a motor
16 vehicle).
17 * * *
18 (k) Existing or transferred employees.--[A person employed
19 in child-care services on January 1, 1986, shall not be required
20 to obtain the information required in subsection (b)(1) and (2)
21 as a condition of continued employment. A person who has once
22 obtained the information required under subsection (b)(1) and
23 (2) may transfer to another child-care service established and
24 supervised by the same organization and shall not be required to
25 obtain additional reports before making the transfer.]
26 (1) A person employed in child-care services on the
27 effective date of this subsection shall be required to obtain
28 the information required in subsection (b)(1) and (2) as a
29 condition of continued employment. A person who has obtained
30 the information required under subsection (b)(1), (2) and (3)
20040H2519B3717 - 4 -
1 may transfer to another child-care service established and
2 supervised by the same organization and shall not be required
3 to obtain additional reports before making the transfer.
4 (2) A person employed in child-care services on the
5 effective date of this paragraph shall, within 12 months of
6 the effective date of this paragraph, comply with subsection
7 (b) as a condition of continued employment. The following
8 shall apply to a current child-care service employee:
9 (i) If the information obtained under subsection
10 (b)(1), (2) and (3) reveals that the employee is
11 disqualified from employment under subsection (c)(4), and
12 the employee needs to apply for a certificate pursuant to
13 section 6344.1 (relating to certificate of
14 employability), the administrator shall have the
15 discretion to place the employee on suspension without
16 pay or to continue the employee's employment under
17 supervision with no unsupervised direct contact with
18 children until such time as a certificate is issued. The
19 department shall develop guidelines regarding the
20 supervision of employees under this subparagraph.
21 (ii) If the employee fails to file an application
22 for a certificate within 30 days of being suspended or
23 placed under supervision by a child-care service
24 receiving the information under subsection (b)(1), (2)
25 and (3), the employee shall be immediately dismissed by
26 the administrator.
27 (iii) At no time may the employee be dismissed from
28 employment on the basis of an offense resulting in
29 disqualification from employment under subsection (c)(4)
30 while an application is pending before a final
20040H2519B3717 - 5 -
1 determination of that application is made pursuant to
2 section 6344.1(f).
3 * * *
4 Section 3. Title 23 is amended by adding a section to read:
5 § 6344.1. Certificate of employability.
6 (a) General rule.--An applicant or employee who would
7 otherwise be precluded from employment in a child-care service
8 under section 6344 (relating to information relating to
9 prospective child-care personnel) may apply for a certificate of
10 employment provided that at least five years, not including any
11 time spent in incarceration, have passed since the applicant's
12 or employee's conviction of any offense listed under section
13 6344(c)(4). A certificate of employment granted under this
14 section shall be applicable for any child-care service subject
15 to this chapter. The issuance of a certificate shall permit an
16 applicant or employee to seek, possibly obtain or retain
17 employment within a child-care service, but does not require an
18 administrator to offer a position of employment to the
19 individual.
20 (b) Hearing.--The bureau shall conduct a hearing on any
21 application filed by an applicant or employee who would
22 otherwise be precluded from employment under section 6344(c)(4)
23 and determine whether the individual demonstrates
24 rehabilitation. A hearing under this section shall be
25 adjudicated by the bureau's hearing officers and conducted in
26 accordance with the provisions of 2 Pa.C.S. (relating to
27 administrative law and procedure). A determination by a hearing
28 officer shall be a final determination of an agency with a right
29 to appeal to Commonwealth Court.
30 (c) Evidence.--The applicant or employee applying for a
20040H2519B3717 - 6 -
1 certificate must prove, by a preponderance of the evidence, the
2 individual's fitness to work in a child-care service. The
3 determination of the bureau shall include, but not be limited
4 to, the following factors:
5 (1) Proof of release from incarceration and the amount
6 of time that has elapsed since the last conviction.
7 (2) The length and stability of the individual's
8 employment history, particularly in the field in which the
9 individual is seeking work.
10 (3) The circumstances of the offense for which the
11 individual was convicted and the nature of the conviction.
12 (4) Other evidence of postconviction rehabilitation,
13 including, but not limited to, history of community service,
14 psychological counseling and character references.
15 (5) In addition to evidence submitted by the applicant
16 or employee applying for a certificate, the bureau may
17 consider testimony and letters of recommendation relevant to
18 the factors under paragraph (1), (2), (3) or (4), if
19 testimony and letters of recommendation are provided to the
20 bureau prior to the scheduled hearing date or, at the
21 bureau's option, provided at the scheduled hearing from any
22 of the following:
23 (i) Licensed professionals.
24 (ii) Members of the community.
25 (iii) Public officials.
26 (iv) Former employees.
27 (v) An employer intending to hire the individual.
28 (vi) Others with knowledge of the individual or
29 other evidence relevant to the application.
30 (6) The bureau may consider, if provided to the bureau
20040H2519B3717 - 7 -
1 prior to the scheduled hearing date or, at the bureau's
2 option, provided at the scheduled hearing, any testimony,
3 letter or recommendation submitted by:
4 (i) The district attorney of the county where any
5 offense listed under section 6344(c)(4) occurred.
6 (ii) The victim of any offense under section
7 6344(c)(4), the parent or guardian of the victim, if the
8 victim is a minor, or family members of the victim, if
9 the victim is deceased.
10 (7) At least 30 days prior to a hearing on an
11 application for a certificate of employment, the bureau shall
12 provide notice of the hearing to the district attorney of the
13 county where any offense listed under section 6344(c)(4)
14 occurred and shall make all reasonable efforts to provide
15 notice of the hearing to the victim of any offense under
16 section 6344(c)(4), the parent or guardian of the victim, if
17 the victim is a minor, or family members of the victim, if
18 the victim is deceased.
19 (d) Submission.--An applicant or employee shall submit any
20 and all evidence listed under subsection (c) within 30 days of
21 the initial filing of the application for a certificate. Any
22 submission of evidence listed under subsection (c) after the 30-
23 day period shall be accepted at the discretion of the hearing
24 officer.
25 (e) Investigation.--The bureau shall establish procedures to
26 conduct investigations of all evidence submitted by an
27 applicant, employee or others in regard to an application for a
28 certificate. These procedures shall include, but not be limited
29 to:
30 (1) Time periods for a response to an investigator's
20040H2519B3717 - 8 -
1 request for further documentation or evidence from the
2 applicant or employee.
3 (2) Time periods for a response from any notice sent by
4 the hearing officer under subsection (c)(7).
5 Any information submitted after these established time periods
6 shall be accepted at the discretion of the hearing officer.
7 (f) Determinations.--The bureau shall conduct a hearing on
8 an application for a certificate within 90 days of the completed
9 application being received and issue a decision within 30 days
10 of the hearing, unless additional time is requested by the
11 applicant, employee or upon a showing of good cause by the
12 Commonwealth. Determinations by the bureau shall be communicated
13 to the department. The department shall keep a record of all
14 determinations for certificates of employability for five years.
15 (g) Civil immunity.--An administrator of a child-care
16 service may not be held civilly liable for any action directly
17 related to good faith compliance with this section.
18 (h) Rules and regulations.--
19 (1) The bureau shall establish rules and regulations for
20 the review of the applications for a certificate consistent
21 with the guidelines established under this section.
22 (2) Notwithstanding any provision of Commonwealth law to
23 the contrary, for the purposes of the act of June 25, 1982
24 (P.L.633, No.181), known as the Regulatory Review Act, the
25 Aging and Youth Committee of the Senate or its successor and
26 the Children and Youth Committee of the House of
27 Representatives or its successor shall have jurisdiction over
28 the bureau for regulations promulgated under this section.
29 (3) The bureau may conduct hearings pursuant to any rule
30 or regulation already promulgated under the provisions of the
20040H2519B3717 - 9 -
1 act of July 2, 1993 (P.L.345, No.48), entitled "An act
2 empowering the General Counsel or his designee to issue
3 subpoenas for certain licensing board activities; providing
4 for hearing examiners in the Bureau of Professional and
5 Occupational Affairs; providing additional powers to the
6 Commissioner of Professional and Occupational Affairs; and
7 further providing for civil penalties and license
8 suspension."
9 (4) Copies of the rules and regulations shall be made
10 available for distribution to the public.
11 (i) Fees.--
12 (1) No application for a certificate shall be considered
13 by the bureau unless accompanied by a fee established by the
14 bureau. All fees imposed shall be sufficient to cover the
15 costs of implementing this section.
16 (2) Fees shall be effective upon publication in the
17 Pennsylvania Bulletin and shall not be subject to the act of
18 July 31, 1968 (P.L.769, No.240), referred to as the
19 Commonwealth Documents Law, the act of October 15, 1980
20 (P.L.950, No.164), known as the Commonwealth Attorneys Act or
21 the act of June 25, 1982 (P.L.633, No.181), known as the
22 Regulatory Review Act.
23 (3) The fees imposed by the bureau shall be paid into
24 the Professional Licensure Augmentation Account established
25 pursuant to the act of July 1, 1978 (P.L.700, No.124), known
26 as the Bureau of Professional and Occupational Affairs Fee
27 Act.
28 (j) Notice to applicants and employees precluded from
29 employment.--Notification of the provisions of this section
30 shall be provided by the administrator, in a form designated by
20040H2519B3717 - 10 -
1 the department, to each applicant or employee precluded from
2 employment.
3 Section 4. This act shall take effect in 60 days.
D6L23DMS/20040H2519B3717 - 11 -