Act 153 requires that all adult volunteers, responsible for the welfare of a child or having direct contact with children, provide certifications of required background clearances by July 1, 2015. Additionally, all school employees covered under the school code, or anyone working at a school district that has direct contact with children, has to provide certifications of background clearances every 36 months (3 years).
In response to the December 19, 2014 “Fact Sheets” released by the Pennsylvania Department of Human Services (DHS), concerning required Act 153 clearances for adult volunteers and employees, we are providing further detail below about Act 153 clearances, based upon the best known information at this time.
In regards to volunteers, Act 153 defines a “volunteer” as any adult applying for an unpaid position as a volunteer responsible for the welfare of a child or having direct contact with children. For purposes of Act 153 clearances, a child is an individual under 18 years of age. Act 153 does not provide further guidance about the actual definition of a “volunteer.” As such, a district must examine the nature of the adult’s interaction with children, his/her volunteer relationship with the district, and the individual’s current clearances.
Interaction with Children
In the recent DHS Fact Sheets, DHS asserts that districts have to carefully consider whether an adult volunteer is responsible for the welfare of a child or has direct contact with children. 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, he/she most likely would be considered responsible for the welfare of the student.
If it is determined that the adult volunteer is not responsible for the welfare of a child, the district then needs to determine whether the adult volunteer has direct contact with children. An adult volunteer is considered to have direct contact with children, if he/she provides care, supervision, guidance or control of children or has “routine interaction with children.” In determining whether a volunteer has “routine interaction with children,” consideration should be given to what the volunteer’s role is within the district and based on that role, determine if their contact with children is “regular, ongoing contact that is integral” to their day to day volunteer responsibilities. As such, an adult volunteer, with limited, temporary or one time contact with children, most likely will not be required to obtain Act 153 background clearances. A good example is a parent who volunteers to help only one time to pick up students from an away football game. That one time event would not be considered routine and/or ongoing. As such, the volunteer most likely would not need Act 153 clearances. However, a parent volunteer who assists elementary students with reading on a weekly basis most likely would be required to have Act 153 clearances.
A Volunteer’s Role and Current Clearances
If an adult volunteer has routine interaction with children, as described above, the volunteer’s role with the district and current clearances will determine what clearances he/she needs and the deadline for obtaining them.
DHS has taken the position that beginning July 1, 2015, volunteers are required to obtain updated clearances as follows:
• Within 36 months of the date of the most recent clearance;
• By July 1, 2016, if the clearance is older than 36 months; or
• By July 1, 2016, if they were approved as a volunteer before July 1, 2015, and had not received a clearance because they previously were not required to obtain clearances.
Based on the effective date of the law, the Pennsylvania School Board Association (PSBA) has taken a different position from DHS, asserting, effective December 31, 2014, that all volunteers applying for an unpaid position must submit the required clearances prior to the commencement of any volunteer activity. However, based on the wording of § 6344.4 (2) which provides that “[e]ffective July 1, 2015,” volunteers, having contact with children, must obtain required clearances every 36 months, we believe that DHS is correct in that volunteer clearances are not required any earlier than July 1, 2015. Nevertheless, we do not agree with DHS’ assertion about the subsequent July 1, 2016 deadline for the scenarios indicated above. There is nothing in Act 153 that supports the subsequent July 1, 2016 deadline. As such, we recommend, effective July 1, 2015, that districts require all adult volunteers to have the required clearances, prior to the commencement of any volunteer activity. This protects the districts and their staff from any claims of not being in compliance with the actual law.
Required Volunteer Clearances
All volunteers required to have Act 153 clearances, must obtain the following clearances:
• Report of criminal history from the Pennsylvania State Police (PSP); and
• Child Abuse History Clearance from the Department of Human Services (Child Abuse).
Additionally, a fingerprint based federal criminal history (FBI) submitted through the Pennsylvania State Police or its authorized agent is required if:
• The position the volunteer is applying for is a paid position; and
• The volunteer has lived outside the Commonwealth of Pennsylvania in the last 10 years.
For example, if a Superintendent is serving in that capacity without receiving a salary all three clearances would be required.
Below is an important exception available to volunteers in certain instances:
Volunteers who are not required to obtain the FBI Clearance because they are applying for an unpaid position and have been a continuous resident of Pennsylvania for the past 10 years must swear or affirm in writing that they are not disqualified from service based upon a conviction of an offense under § 6344. We have attached a model volunteer disclosure statement to this memo for volunteer applicants who have been residents of Pennsylvania for the past 10 years.
Additionally, volunteers may serve on a provisional basis for a single period not to exceed 30 days if the volunteer is in compliance with the clearance standards.
Tracking of Volunteer Clearances
We recommend that all districts have a centralized system to track volunteer clearances and their expiration dates (36 months). An administrative designee should be responsible for the selection of all volunteers after reviewing clearances. It is worth noting that, unlike school employee clearances under § 6344.3, volunteer clearances can transfer from one school entity to another, provided the clearances have not expired.
In regards to school employees covered under the school code, or anyone working at a school district, the school district will have to access who has direct contact with children because they provide care, supervision, guidance or control of children or have routine interaction with children. A school district will have to use the same analysis, as described above with volunteers, to determine if the employee has routine interaction with children. If the employee is determined to have direct contact with children, they are required to obtain the indicated clearances below.
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.
*** For individuals who received clearances prior to 2008 and were not required to obtain the FBI clearance, the three required clearances would be obtained consistent with the time frames above. Therefore, if either of the employee’s Child Abuse and State Police Clearances were obtained within the past 36 months, all three clearances must be obtained within 36 months of the date of the most recent clearance. If all clearances were obtained more than 36 months ago, all three clearances must be obtained by December 31, 2015.
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, unless there is reasonable belief the volunteer was arrested or convicted of an offense that would deny participation or named him/her as a perpetrator in an indicated or founded report. However, if a district or another party decides to use a 3rd party vendor to obtain the required clearances, the district must ensure that the 3rd party vendor uses the actual clearance sources, Child Abuse Registry, Pennsylvania State Police, and FBI, mandated by Act 153. Furthermore, the district should require the 3rd party vendor to indemnify the district for any failure to perform a proper background check in accordance with the requirements of Act 153. Nevertheless, if a 3rd party vendor is used, the district person responsible for the selection of volunteers still remains the one legally responsible for volunteer selection decisions based on the information obtained.