AN ACT

 

1Amending Title 23 (Domestic Relations) of the Pennsylvania
2Consolidated Statutes, in child protective services, further
3providing for disposition of founded and indicated reports,
4for amendment or expunction of information <-and, for
5investigation of reports<-; and for evidence in court 
6proceedings.

7The General Assembly of the Commonwealth of Pennsylvania
8hereby enacts as follows:

9Section 1. Section 6338(a) of Title 23 of the Pennsylvania
10Consolidated Statutes is amended to read:

11§ 6338. Disposition of founded and indicated reports.

12(a) General rule.--When a report of suspected child abuse or
13a report under Subchapter C.1 (relating to students in public
14and private schools) is determined by the appropriate county
15agency to be a founded report or an indicated report, the
16information concerning that report of suspected child abuse
17shall be expunged immediately from the pending complaint file,

1and an appropriate entry shall be made in the Statewide central
2register. [Notice of the determination must be given to the
3subjects of the report, other than the abused child, and to the
4parent or guardian of the affected child or student along with
5an explanation of the implications of the determination. Notice
6given to perpetrators of child abuse and to school employees who
7are subjects of indicated reports for school employees or
8founded reports for school employees shall include notice that
9their ability to obtain employment in a child-care facility or
10program or a public or private school may be adversely affected
11by entry of the report in the Statewide central register. The
12notice shall also inform the recipient of his right, within 45
13days after being notified of the status of the report, to appeal
14an indicated report, and his right to a hearing if the request
15is denied.] Notice of the determination that a report is a 
16founded or indicated report shall be made as provided in section 
176368(c.2) (relating to investigation of reports).

18* * *

19Section 2. <-Section 6341(c) of Title 23 is amended and the 
20section is <-Sections 6341(a) and (c) and 6368(a) of Title 23 are 
21amended and the sections are amended by adding subsections to
22read:

23§ 6341. Amendment or expunction of information.

<-24* * *

25(b.1) Hearing.--The appeal hearing authorized under
26subsection (b) shall be scheduled according to the following
27procedures:

28(1) Within ten days of receipt of an appeal pursuant to
29this section, the department shall schedule a hearing on the
30merits of the appeal.

1(2) The department shall make reasonable efforts to
2coordinate the hearing date with both the appellee and
3appellant.

4(3) Proceedings before the Bureau of Hearings and
5Appeals shall commence within 45 days of the date the
6scheduling order is entered. Proceedings and hearings shall
7be scheduled to be heard on consecutive days whenever
8possible but, if not on consecutive days, then the proceeding
9or hearing shall be concluded not later than 30 days from
10commencement.

11(4) The investigative agency shall bear the burden of
12proving by substantial evidence that the report should remain
13categorized as an indicated report.

14(5) Evidence that a child has suffered child abuse of
15such a nature as would ordinarily not be sustained or exist
16except by reason of the act or failure to act of the alleged
17perpetrator shall be prima facie evidence of child abuse by
18either or both of the parents or any other person responsible
19for the child's welfare. Once the investigative agency has
20established that prima facie evidence of child abuse exists,
21the burden shall shift to the appellee to establish that the
22appellee was not the individual responsible for the welfare
23of the child or that the child was not the victim of child
24abuse by a perpetrator.

25(b.2) Testimony by closed-circuit television.--At the
26request of the investigative agency, the administrative law
27judge or hearing officer shall order that the testimony of the
28child victim or child material witness be taken under oath or
29affirmation in a room other than the hearing room and televised
30by closed-circuit equipment to be viewed by the tribunal. Only

1the attorneys for the appellant and appellee, the court
2reporter, the administrative law judge or hearing officer,
3persons necessary to operate the equipment and any person whose
4presence would contribute to the welfare and well-being of the
5child may be present in the room with the child during his
6testimony. The administrative law judge or hearing officer shall
7permit the appellee to observe and hear the testimony of the
8child but shall ensure that the child cannot hear or see the
9appellee. The administrative law judge or hearing officer shall
10make certain that the appellee has adequate opportunity to
11communicate with counsel for the purposes of providing an
12effective examination.

13(b.3) Admissibility of certain statements.--An out-of-court
14statement not otherwise admissible by statute or rule of
15evidence is admissible in evidence in a proceeding under this
16section if the following apply:

17(1) The statement was made by a child under the age of
18ten years or by a child ten years of age or older who is
19intellectually disabled.

20(2) The statement alleges, explains, denies or describes
21any of the following:

22(i) An act of sexual penetration or contact
23performed with or on the child.

24(ii) An act of sexual penetration or contact with or
25on another child observed by the child making the
26statement.

27(iii) An act involving bodily injury or serious
28physical neglect of the child by another.

29(iv) An act involving bodily injury or serious
30physical neglect of another child observed by the child

1making the statement.

2(3) The administrative law judge or hearing officer
3finds that the time, content and circumstances of the
4statement and the reliability of the person to whom the
5statement is made provide sufficient indicia of reliability.

6(4) The proponent of the statement notifies other
7parties of an intent to offer the statement and the
8particulars of the statement sufficiently in advance of the
9proceeding at which the proponent intends to offer the
10statement into evidence, to provide the parties with a fair
11opportunity to meet the statement.

12For purposes of this subsection, an out-of-court statement
13includes a video, audio or other recorded statement.

<-14(a) General rule.--At any time:

15(1) The secretary may amend or expunge any record under
16this chapter upon good cause shown and notice to the
17appropriate subjects of the report.

18(2) Any person named as a perpetrator, and any school
19employee named, in an indicated report of child abuse may,
20within [45] 90 days of being notified of the status of the
21report, [request] appeal to the secretary to amend or expunge
22an indicated report on the grounds that it is inaccurate or
23it is being maintained in a manner inconsistent with this
24chapter.

25(3) A person named as a perpetrator in a founded report
26of child abuse may petition a court for the amendment or
27expunction of the founded report in the Statewide central
28register based on newly discovered evidence that the report
29of child abuse is inaccurate or is being maintained in a
30manner inconsistent with this chapter. The following shall

1apply:

2(i) For founded reports that are not based on a
3criminal conviction, the petition shall be filed with the
4court that determined the report to be a founded report.
5If the court determines that the report of child abuse is
6inaccurate or is being maintained in a manner
7inconsistent with this chapter, the court shall order the
8department to amend or expunge the record in the
9Statewide central register. The department shall comply
10with the court's order within 15 days of the date of the
11order.

12(ii) This paragraph does not apply to founded
13reports that are based on a criminal conviction.

14* * *

15(b.1) Good cause.--

16(1) For the amendment or expunction of a report of child
17abuse in the Statewide central register pursuant to
18subsection (a)(1), good cause shall constitute any of the
19following:

20(i) Newly discovered clear and convincing evidence
21that an indicated report of child abuse is inaccurate or
22is being maintained in a manner inconsistent with this
23chapter.

24(ii) A determination that the perpetrator in an
25indicated report of abuse no longer represents a
26significant risk to children and that no significant
27public purpose would be served by the continued listing
28of the person as a perpetrator in the Statewide central
29register, if all of the following apply:

30(A) The person did not cause serious bodily

1injury to or sexual abuse or exploitation of a child.

2(B) At least five years have passed since the
3entry of the person's name into the Statewide central
4register.

5(C) The person is not identified as the
6perpetrator in any other founded or indicated report
7of child abuse.

8(D) The person would not be prohibited from
9employment involving children under this chapter.

10(2) A person listed as the perpetrator in an indicated
11report of child abuse may make a written request that the
12secretary amend or expunge a report of child abuse in the
13Statewide central register for good cause, as provided in
14this subsection. The request shall be in a form acceptable to
15the department.

16(3) Within 90 days of the receipt of a request under
17paragraph (2), the secretary shall determine whether good
18cause exists to amend or expunge the record in the Statewide
19central register. The secretary may consider any relevant
20factor when determining whether good cause exists to amend or
21expunge the record. If the secretary determines that good
22cause exists, the department shall amend or expunge the
23record within 15 days of the secretary's determination. The
24department shall notify the person in writing within ten days
25of the secretary's determination. The notice shall include
26all of the following information:

27(i) Whether or not the record in the Statewide
28central register will be amended or expunged pursuant to
29the person's request.

30(ii) The date of the determination.

1(iii) The reasons for the determination.

2(iv) The person's right to appeal the determination
3to a court within 30 days, as provided by paragraph (4).

4(4) If the secretary determines that good cause does not
5exist to amend or expunge a record pursuant to a request
6under paragraph (2), the person making the request may appeal
7the determination to the court of common pleas in the county
8where the child abuse occurred within 30 days of the date of
9notice. The department shall be given notice of an appeal
10under this paragraph, and may participate in any court
11proceeding related to the appeal. If the court determines
12that good cause exists to amend or expunge the record, the
13court shall order the department to amend or expunge the
14record in the Statewide central register. The department
15shall comply with the court's order within 15 days of the
16date of the order.

17(b.2) Hearing.--A person making an appeal under subsection
18(a)(2) shall have the right to a timely hearing to determine the
19merits of the appeal. A hearing on the appeal of a person named
20as a perpetrator authorized under subsection (a)(2) shall be
21scheduled according to the following procedures:

22(1) Within 30 days of receipt of an appeal pursuant to
23this section, the department shall schedule a hearing on the
24merits of the appeal.

25(2) The department shall make reasonable efforts to
26coordinate the hearing date with both the appellee and
27appellant.

28(3) After reasonable efforts required by paragraph (2)
29have been made, the department shall enter a scheduling
30order, and proceedings before the Bureau of Hearings and

1Appeals shall commence within 45 days of the date the
2scheduling order is entered, unless good cause for extending
3this deadline can be shown. In no circumstance may
4proceedings commence more than 90 days after a scheduling
5order is entered. Proceedings and hearings shall be scheduled
6to be heard on consecutive days whenever possible but, if not
7on consecutive days, then the proceeding or hearing shall be
8concluded not later than 30 days from commencement.

9(4) The investigative agency shall bear the burden of
10proving by clear and convincing evidence that the report
11should remain categorized as an indicated report.

<-12(b.4) (b.3) Prompt decision.--The administrative law judge
13or hearing officer's decision <-in a hearing under subsection
14(b.2) shall be entered, filed and served upon the parties within
<-1515 45 days of the date upon which the proceeding or hearing is
16concluded unless, within that time, the tribunal extends the
17date for the decision by order entered of record showing good
18cause for the extension. In no event shall an extension delay
19the entry of the decision more than <-30 60 days after the
20conclusion of the proceeding or hearing.

21(c) [Review of refusal of request.--If the secretary refuses
22the request under subsection (a)(2) or does not act within a
23reasonable time, but in no event later than 30 days after
24receipt of the request, the perpetrator or school employee shall
25have the right to a hearing before the secretary or a designated
26agent of the secretary to determine whether the summary of the
27indicated report in the Statewide central register should be
28amended or expunged on the grounds that it is inaccurate or that
29it is being maintained in a manner inconsistent with this
30chapter. The perpetrator or school employee shall have 45 days

1from the date of the letter giving notice of the decision to
2deny the request in which to request a hearing. The appropriate
3county agency and appropriate law enforcement officials shall be
4given notice of the hearing. The burden of proof in the hearing
5shall be on the appropriate county agency. The department shall
6assist the county agency as necessary.] Reconsideration and 
7appeal.--Parties to a proceeding or hearing held under <-this 
8section <-subsection (b.2) have 15 calendar days from the mailing 
9date of the final order of the Bureau of Hearings and Appeals to 
10request the secretary to reconsider the decision or appeal to 
11Commonwealth Court. Parties to a proceeding or hearing held 
12under this section have 30 calendar days from the mailing date 
13of the final order of the Bureau of Hearings and Appeals to 
14perfect an appeal to the Commonwealth Court. The filing for 
15reconsideration shall not toll the 30 days provided.

16(c.1) Notice of decision.--Notice of the decision shall be
17made to the central register, the appropriate county agency, any
18appropriate law enforcement officials and all subjects of the
19report.

20* * *

<-21Section 3. Section 6368 of Title 23 is amended by adding
22subsections to read:

23§ 6368. Investigation of reports.

<-24(a) General rule.--Upon receipt of each report of suspected
25child abuse, the county agency shall immediately commence an
26appropriate investigation and see the child immediately if
27emergency protective custody is required or has been or shall be
28taken or if it cannot be determined from the report whether
29emergency protective custody is needed. Otherwise, the county
30agency shall commence an appropriate investigation and see the

1child within 24 hours of receipt of the report. The
2investigation shall include a determination of the risk of harm
3to the child or children if they continue to remain in the
4existing home environment, as well as a determination of the
5nature, extent and cause of any condition enumerated in the
6report, any action necessary to provide for the safety of the
7child or children and the taking of photographic identification
8of the child or children to be maintained with the file. During
9the investigation, the county agency shall provide or arrange
10for services necessary to protect the child while the agency is
11making a determination pursuant to this section. If the
12investigation indicates serious physical injury, a medical
13examination shall be performed on the subject child by a
14certified medical practitioner. Where there is reasonable cause
15to suspect there is a history of prior or current abuse, the
16medical practitioner has the authority to arrange for further
17medical tests or the county agency has the authority to request
18further medical tests. The investigation shall include
19communication with the department's service under section 6332
20(relating to establishment of Statewide toll-free telephone
21number). The investigation shall include interviews with all 
22subjects of the report, including the alleged perpetrator. If a 
23subject of the report is not able to be interviewed or cannot be 
24located, the county agency shall document its reasonable efforts 
25to interview the subject and the reasons for its inability to 
26interview the subject. Prior to interviewing a subject of the
27report, the county agency shall orally notify the subject who is
28about to be interviewed of the existence of the report, the
29subject's rights under 42 Pa.C.S. §§ 6337 (relating to right to
30counsel) and 6338 (relating to other basic rights) and the

1subject's rights pursuant to this chapter in regard to amendment
2or expungement. Within 72 hours following oral notification to
3the subject, the county agency shall give written notice to the
4subject. The notice and interview may be reasonably delayed if
5notification is likely to threaten the safety of the victim, a
6nonperpetrator subject or the investigating county agency
7worker, to cause the perpetrator to abscond or to significantly
8interfere with the conduct of a criminal investigation. However,
9the written notice must be provided to all subjects prior to the
10county agency's reaching a finding on the validity of the
11report.

12* * *

13(c.1) Review of indicated reports.--A final determination
14that a report of suspected child abuse is indicated shall be
15made by the county agency solicitor and the county administrator
16or the designee of the administrator.

17(c.2) Notice of final determination.--<-Immediately upon
18conclusion of the child abuse investigation, the county agency
19shall provide notice of its determination to the department, in
20a form acceptable to the department. Within 24 business hours of
<-21the conclusion of the child abuse investigation, the
22investigator <-receipt of notice from the county agency, the
23department shall send notice of the final determination to the
24subjects of the report and the mandated reporter if a report was
25made under section 6313 (relating to reporting procedure). The
26notice shall include the following information:

27(1) The status of the report.

28(2) The perpetrator's right to request the secretary to
29amend <-or expunge the report.

30(3) The right of the subjects of the report to services

1from the county agency.

2(4) The effect of the report upon future employment
3opportunities involving children.

4(5) The fact that the name of the perpetrator, the
5nature of the abuse and the final status of <-the a founded or
6indicated report will be entered in the Statewide central
7register.

8(6) The perpetrator's right to file an appeal of an
9indicated finding of abuse pursuant to section 6341 (relating
10to amendment or expunction of information) within <-45 90 days
11of the <-conclusion of the investigation that determined the
12report to be indicated <-date of notice.

13(7) The perpetrator's right to a fair hearing on the
14merits on an appeal of an indicated report filed pursuant to
15section 6341.

16(8) The burden on the investigative agency to prove its
17case by <-substantial clear and convincing evidence in an
18appeal of an indicated report.

<-19(c.3) Reasonable efforts to provide notice.--If the
20investigative agency is unable to provide notice as required in
21subsection (c.2), it shall notify the department in writing of
22the efforts made. If the department concludes that due diligence
23was made to provide notice, no further efforts to provide notice
24shall be required.

<-25(c.3) Reasonable efforts to provide notice.--If the
26department has mailed the notice required by subsection (c.2),
27but the notice is returned as undeliverable, the department
28shall make reasonable efforts to provide notice and document the
29reasons for its inability to provide notice. If the department
30is unable to provide notice with respect to an indicated report,

1the entry in the Statewide central register shall include
2information that the department was unable to provide notice.
3No further efforts to provide notice shall be required, except
4that the department shall resume reasonable efforts to provide
5notice if new information is received regarding the whereabouts
6of an individual who is entitled to receive notice under
7subsection (c.2).

8* * *

<-9Section 3. Section 6381 of Title 23 is amended by adding a
10subsection to read:

11§ 6381. Evidence in court proceedings.

12* * *

13(e) Child victims and witnesses.--In addition to the
14provisions of this section, any consideration afforded to a
15child victim or witness pursuant to 42 Pa.C.S. Ch. 59, Subch. D
16(relating to child victims and witnesses) in any prosecution or
17adjudication shall be afforded to a child in child abuse
18proceedings in court or in any department administrative hearing
19pursuant to section 6341 (relating to amendment or expunction of
20information).

21Section 4. This act shall take effect in <-60 120 days.

 

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