What You Really Need to Know about Act 153 Clearances

Act 153, although just becoming effective on December 31, 2014, has had quite an impact on school districts.  Prior to and after its effective date, as new information has become available, the Pennsylvania School Boards Association (PSBA), the Pennsylvania Department of Human Services (DHS), Maiello, Brungo, & Maiello, LLP, and others have been providing updates to answer school district questions about Act 153.  Based upon the best information known at this time, the following will outline and simplify what school districts, volunteers, school employees, and service providers need to know about the Act 153 background clearances.

Covered Individuals    

  1. Volunteers – Any adult (18 years or older) applying for an unpaid position as a volunteer responsible for the welfare of a child or having direct contact with children.
  2. School employees, unless they have no direct contact with children.
  3. Any other paid individuals such as independent contractors working at schools who have direct contact with children.

DIRECT Contact with Children

Volunteers – A volunteer is required to have Act 153 background clearances if the volunteer is responsible for the welfare of a child or has direct contact with children:

Responsible for the welfare of a child Determining whether an adult volunteer is responsible for the welfare of a child means that the volunteer is acting in lieu of or on behalf of a parent.  For example, if a volunteer is solely responsible for a student on a field trip, the volunteer would likely be considered responsible for the welfare of the student.

Direct Contact with childrenAn adult volunteer is considered to have direct contact with children, if the volunteer provides care, supervision, guidance or control of children or has “routine interaction with children” where the contact with children is “regular, ongoing contact that is integral” to the volunteer’s responsibilities. 

Employees and other paid individuals – School districts must identify those employees and paid service providers who have direct contact with children, as defined above, using the same analysis as used with volunteers.  If the employee or paid service provider have direct contact with children, that individual is required to obtain the indicated Act 153 clearances below.

Background Clearances

Volunteers
Responsible for the welfare of a child:
Usually only 2 Clearances are Required (Updated Every 36 Months)
If a volunteer is responsible for the welfare of a child or has direct contact with children, he/she is required to have the following clearances:

  • Report of criminal history from the Pennsylvania State Police (PSP); and
  • Child Abuse History Clearance from DHS (Child Abuse).

A fingerprint based federal criminal history (FBI) clearance submitted through the Pennsylvania State Police or its authorized agent is not required if:

  • The position for which the volunteer is applying is an unpaid position; and
  • The volunteer has been a continuous resident of the Commonwealth of Pennsylvania for the last 10 years.

Note:  Volunteers who are not required to obtain the FBI Clearance for the reasons set forth above must swear or affirm in writing that they are not disqualified from service based upon a criminal conviction of an offense which prohibits their employment with the District.

Deadline for Obtaining Clearances

We recommend that all volunteers be required to have required clearances by July 1, 2015.  Act 153 provides that “[e]ffective July 1, 2015,” volunteers, having contact with children, must obtain required clearances every 36 months.

Employees

If the employee or paid service provider has direct contact with children, that individual must obtain the  following clearances (updated every 36 months):

  • Report of criminal history from the Pennsylvania State Police (PSP);
  • Child Abuse History Clearance from DHS (Child Abuse); and
  • A fingerprint based federal criminal history (FBI) clearance submitted through the Pennsylvania State Police or its authorized agent.

Persons employed prior to Dec. 31, 2014, are required to obtain updated clearances as follows:

•     If the clearances are less than 36 months old as of December 31, 2014, the employee must obtain updated clearances within 36 months of the date of issuance of those clearances;

•     If the clearances are more than 36 months old as of December 31, 2014, the employee must obtain clearances by December 31, 2015;

•    If the employee has not previously received clearances because the employee was employed in the same position and was not required to obtain a clearance under prior law (grandfathered), the employee must obtain clearances by December 31, 2015.

FREQUENTLY ASKED Questions

Question:         Is a school board member required to have Act 153 background clearances?
Answer:           Usually no.  A board member does not normally have direct contact with children that is “regular, ongoing contact.”  However, for example, if a board member also volunteers to assist elementary students with reading on a weekly basis, the board member would be required to have Act 153 background clearances as a volunteer notwithstanding their status as a school director.

Question:         Does Act 153 affect PTA and PTA events?
Answer:           Possibly, yes.  If PTA volunteers are responsible for the welfare of children or have direct contact with children, as described above, they would be required to have Act 153 background clearances.

Question:         If the individual volunteered previously, do they have until this summer to obtain their clearances?
Answer:           Yes.  Based on our interpretation of Act 153, the volunteer would have until July 1, 2015, before being required to have Act 153 background clearances prior to the participation in any volunteer activity occurring thereafter.

Question:         Is an employee required to be re-fingerprinted every time the employee obtains a federal criminal history (FBI)?
Answer:           Currently yes.  The Pennsylvania Department of Education website regarding federal criminal history background checks provides under the “FINGERPRINT PROCESSING AND STORAGE” section that “If an applicant is required to obtain a new report, the applicant must be fingerprinted again in order to obtain the report.”

Act 153’s clearance requirements and deadlines are only the minimum legal requirements for districts and other covered entities.  A district always has the right to have more strict requirements than what is required by the law.  In developing your own district’s plan concerning clearances, you should consult with your insurance carrier(s) about any advice and/or requirements that they may have concerning required clearances.  Districts are not required to obtain and pay for the required Act 153 clearances for volunteers. However, the Act requires District payment when the District directs a volunteer to obtain clearances prior to expiration of the 36 month renewal period when the District has a reasonable belief the volunteer has since been arrested or convicted of a disqualifying offense or has been named as a perpetrator in an indicated or founded report.  Our firm has developed model district notification letters for volunteers, employees, and independent contractors concerning Act 153.  Additionally, we have drafted a model volunteer disclosure statement for volunteers who are not required to obtain the FBI Clearance because they have been a continuous resident of Pennsylvania for the past 10 years.   Please contact one of our School Law attorneys for access if you would like copies of these model forms and/or if you have any other questions.

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