Trying to Understand All Those Adult Leader Background Checks

Going back to my high school days growing up in Pittsburgh, I was generally aware of how a bill became a law in Pennsylvania, thanks to my social studies teachers.  But I don’t think I ever paid as much attention to a would-be law (introduced as PA House Bill #1276) as that piece of legislation worked its way through the state legislature earlier this summer.  The reason HB  1276 was particularly noteworthy for me was its potential impact on Scouting, as one of the bill’s primary objectives was to clarify and make more explicit state-mandated background check clearance requirements for adult volunteers who have direct contact with children.  In our council, this is a very big deal – impacting many thousands of leaders and parents.

As most of our volunteers already know, the Boy Scouts of America have been doing adult leader background checks for many years prior to the state mandating three specific background checks for adult volunteers working with children in the aftermath of the Jerry Sandusky case.  Then came November 2014, when PA Act 153 became law, which among other things stated that the BSA’s current background checks wouldn’t suffice.  The cost of the three mandated clearances, back at that time, could total up to $47.50 for every single adult.  Clearly, Act 153 was going to impact the Scouting program in a major way.

It didn’t take long for an intense discussion over Act 153 to get going.  Who would pay for all these clearances?  Who specifically would need them?  Anyone who volunteers, regardless of how involved their service was?  Seeing that Act 153 needed to be clarified, the state legislature went to work in early 2015 on HB 1276, looking to do a better job in clarifying the law.  HB 1276 spelled out a new standard for how often background checks would need to be renewed (every 5 years instead of every 3), redefined “direct volunteer contact,” and waived the fees volunteers would incur for two of the background checks (PA State Police and Department of Human Services).

Our council, along with several other BSA councils in PA, was quite active in the conversation regarding HB 1276, playing a proactive role  in talking with legislators and their staff involved in the process of crafting HB 1276.  It was a challenging conversation, because protecting youth from any potential harm is absolutely one of our core values, and nothing is more important than keeping our Scouts safe in our programs.  There was never any doubt that our direct contact leaders (adults who work directly with youth) would need the state-required background checks, but it was hard to figure out if parents going on camp-outs with their sons would need them.  How about carpool drivers on outings?  How about parents helping out with the popcorn sale by standing with youth in front of a local store?

To help figure out the answers to these types of questions for ourselves and the other 21 BSA councils in PA, our council sought and was presented an opportunity to meet with Department of Human Services Secretary Ted Dallas and his chief deputy for Children & Youth matters on July 1, 2015, which coincidentally was the day that Act 15 was signed into law by Governor Tom Wolf.

At our meeting, we were able to run through an extensive list of questions that all PA councils had prepared, dealing with a multitude of Scouting-specific scenarios.  Most the guidance we received that afternoon went pretty much as we expected, but I and others were surprised by some of what we were told when it came to infrequent volunteers whose involvement was quite limited or in traditional roles for many Scouting parents, such as going on camp-outs with their sons.

If you take a few minutes read through our council’s policy regarding state-mandated adult background clearances, you’ll note these areas where we were somewhat surprised.  DHS’s guidance regarding several of our Scouting scenarios invoked the “potential” for other parents to assume parental-like supervision over Scouts who were participating in activities without their own parent(s) present.

For example, I asked “If a pack came to summer camp with 20 youth and 18 of those youth had parents attend with them, which adults would need the clearances? The adults specifically designated as leaders for that?”  No, we were told, ALL of the adults on the outing would need the mandated checks.  We received similar guidance on unit fundraisers and unit-organized carpools.  DHS’s focus was on the potential that another parent could assume (either informally or out of necessity) parental-style control over a child other his or her own.  We believe that this interpretation of Act 15 greatly expands the number of adults that need the required background checks and were intended to covered by the Act.

If an adult has lived in PA the past 10 years and as a result doesn’t need the FBI fingerprint-based clearance, now that the two PA-provided clearances were free, there is no financial cost to the individual to comply with the law.  It’s not clear how many of our council’s leaders and parents would fall into this situation where they would incur no cost for background checks (probably a large majority), but they would still have to obtain and submit them and the council will have to file and track them to be renewed on time.  Additionally, the council will need to take reasonable steps at events like summer camp in 2016 to make sure every adult present has the required background checks in place.  It’s a pretty big deal.

Hopefully, as DHS goes through the formal process in developing written rules and regulations to implement Act 15, there will be some opportunity for further discussions regarding the “potential in-lieu of parent” issue.

The uncertainty in interpreting the law itself arises because Act 15 requires clearances from 1) those persons “having direct volunteer contact with children” and 2) “persons responsible for the child’s welfare.”  Under the first category, the volunteer must have “regular and repeated contact that is integral” to the volunteer’s responsibilities.  If a parent sporadically or occasionally assists or participates at a function, there is a strong likelihood that he/she would not meet this definition.  If not, the second category must be considered.

Under the law, “persons responsible for the child’s welfare” are those who act “in lieu of parental care, supervision and control.”  The term “in lieu of” suggests that a child’s parents are not present and that others have been provided authority by the parents to be responsible for their child.  Generally, Scouting units identify to parents which unit leaders will be responsible for the care of the youth members on trips, and obtain permission slips to attend.  Such individuals, having been identified and approved by the parents, are clearly acting in lieu of the parents on such activities.  DHS suggests that if other adults are present, they should also obtain the background certifications if it is possible that they could, at some point during an activity, become responsible for a child’s welfare.  Since the likelihood of such a change in role increases with the duration of the event, all parents attending a camping trip would almost certainly fall within this category.

The DHS approach, while understandably focused on maximum protection of children, seems to us to stretch the scope of the actual language of the law.  It would also potentially impose duties on persons who were not even identified to parents as going to be present at an event, who have not been approved by the parents to be responsible for the welfare of their children, and who themselves have not accepted such responsibility.  The possibility of them morphing into such a role of acting in lieu of someone’s parents without their consent and without the consent (or even knowledge) of the child’s parent, seems questionable.

While adults attending an event might have occasion to step in to supervise, guide or assist in an emergency, they would be doing so not because they or the child’s parents believe that they have been given responsibility for the welfare of that child, but because it is appropriate for a reasonable adult to do so under the circumstances.

Because these issues remain unsettled, we suggest that adults and units look closely to the circumstances and assess whether they believe clearances are required.  In light of current guidance from DHS, the safest route to take is to have all adults attending any Scouting function where a youth member is present without a parent to have the clearances.  Our council, will, though, on behalf of all our units, members, leaders and parents, continue to seek further clarification on this issue.  Our goal is to ensure that our council is fully compliant with the law, but whenever we see a need for further discussion or clarification, we will do so.

Taking Care of Business

If you were a Scouting volunteer prior to August 25, 2015, you have until July 1, 2016 to submit the required background checks.  Now that the PA checks can be obtained free of charge, volunteers are encouraged to begin submitting the required clearances.  If you are beginning your service as a Scouting volunteer now (after August 25, 2015), you need to complete the process of submitting the required clearances before beginning your service.  Two of the background checks (PSP and DHS) can be completed on-line.  If you’ve lived in PA the past 10 consecutive years and are not required to obtain the FBI clearance, you can download the Disclosure Statement Application for Volunteers to print, complete and scan for on-line submittal to the council.

To minimize the impact of collecting the thousands of documents that the council will need to obtain, adult volunteers will be able to submit their clearances on-line at http://tinyurl.com/qc6fhfm.  Details on how to submit these clearances is available on our council’s policy page.  We will be providing written confirmation via email to each adult volunteer who has successfully submitted all of the state-mandated background checks.

The BSA has modified its registration database to allow PA councils to electronically store the required background checks for all volunteers (registered and non-registered).  The council will not be keeping paper-based files for these background checks.  Individuals submitting background checks should retain their own copies of the background checks when obtained.  These checks can be given to other youth-serving organizations for those Scouters and Scouting parents who also volunteer for other organizations.

As with anything new, there will be lots of challenges and questions related to these background checks.  To help manage the background check process in the council,  earlier this year I asked our Executive Board to approve funding for a full-time position to oversee this work.  My current administrative assistant, Mitzi Perry, will be assuming this important responsibility this week.  If you need assistance or have questions, please don’t hesitate to contact Mitzi at mitzi.perry@scouting.org or by phone at (717) 827-4576.