S0899B1205A08116 RAR:CMD 06/20/18 #90 A08116
AMENDMENTS TO SENATE BILL NO. 899
Sponsor: SENATOR MENSCH
Printer's No. 1205
Amend Bill, page 1, line 2, by striking out "adult" and
inserting
adults
Amend Bill, page 1, lines 6 through 18; pages 2 through 41,
lines 1 through 30; page 42, lines 1 through 7; by striking out
all of said lines on said pages and inserting
Section 1. Title 23 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 69
OLDER ADULTS PROTECTIVE SERVICES
Subchapter
A. Preliminary Provisions
B. Duties of Department
C. Duties of Area Agencies on Aging
D. Protective Services
E. Reporting
F. Financial Institutions and Fiduciaries
G. Criminal History
H. Remedies
I. Administration
SUBCHAPTER A
PRELIMINARY PROVISIONS
Sec.
6901. Scope of chapter.
6902. Definitions.
6903. Intent.
§ 6901. Scope of chapter.
This chapter relates to older adult protective services.
§ 6902. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Abandonment." The desertion of an older adult by a
caretaker.
"Abuse." The occurrence of one or more of the following
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acts:
(1) Infliction of injury, unreasonable confinement,
intimidation or punishment resulting in physical harm, pain
or mental anguish.
(2) The willful deprivation by a caretaker of goods or
services which are necessary to maintain physical or mental
health.
(3) Sexual abuse, including rape, involuntary deviate
sexual intercourse, sexual assault, aggravated indecent
assault, indecent assault or incest.
(4) Sexual harassment, including unwelcome sexual
advances, requests for sexual favors and other unwelcome
verbal or physical conduct of a sexual nature.
"Administrator." The person responsible for the management
of a facility. The term includes a person responsible for
employment decisions or an independent contractor responsible
for administration of a facility.
"Applicant." An individual who submits an application which
is being considered for employment to a facility.
"Area agency on aging." The single local agency or the local
agency's agent designated by the department within each planning
and service area to administer the delivery of protective
services.
"Assessment." A determination based upon a comprehensive
review of an older adult's social, physical and psychological
status along with a description of the person's current
resources and needs using the instruments and procedures
established by the department.
"Care." Services provided to meet an older adult's need for
personal care or health care which require interaction with the
older adult.
"Care-dependent individual." An adult who, due to physical
or cognitive disability or impairment, requires assistance to
meet needs for food, shelter, clothing, personal care or health
care.
"Caretaker." A person that has assumed the responsibility
for the provision of care needed to maintain the physical or
mental health of an older adult. This responsibility may arise
voluntarily, by contract, by receipt of payment for care, as a
result of familial relationship, or by order of a court of
competent jurisdiction.
"Department." The Department of Aging of the Commonwealth.
"Employee." An individual who:
(1) any of the following:
(i) is employed by a facility;
(ii) enters into a contractual relationship with a
facility, consumer, consumer's family or legal
representative to provide care to an older adult; or
(iii) is a student doing an internship or clinical
rotation or any other individual who has been granted
access to the facility to perform a clinical service for
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a fee; and
(2) has unsupervised access to the older adult or the
older adult's living quarters, resources or personal records,
including employees of affiliated corporate entities.
"Exploitation." An act or course of conduct by a caretaker
or other person against an older adult or an older adult's
resources without the informed consent of the older adult or
with consent obtained through misrepresentation, coercion or
threats of force, results in monetary, personal or other
benefit, gain or profit for that caretaker or person, or
monetary or personal loss to the older adult.
"Facility." Any of the following:
(1) Domiciliary care as defined in section 2202-A of the
act of April 9, 1929 (P.L.177, No.175), known as The
Administrative Code of 1929.
(2) An assisted living residence as defined in section
1001 of the act of June 13, 1967 (P.L.31, No.21), known as
the Human Services Code.
(3) A personal care home as defined in section 1001 of
the Human Services Code.
(4) The following entities as defined in section 802.1
of the act of July 19, 1979 (P.L.130, No.48), known as the
Health Care Facilities Act:
(i) A home care agency.
(ii) A home care registry.
(iii) A home health care agency.
(iv) A hospice.
(v) A long-term care nursing facility.
(5) An older adult daily living center as defined in
section 2 of the act of July 11, 1990 (P.L.499, No.118),
known as the Older Adult Daily Living Centers Licensing Act.
(6) A PACE provider as defined in section 1894 of the
Social Security Act (49 Stat. 620, 42 U.S.C. § 1395eee).
(7) Any other public or private organization or entity,
or part of an organization or entity, that uses public funds
and is paid, in part, to provide care to care-dependent
individuals.
"Fiduciary." A guardian, custodian, trustee, agent, personal
representative or other person authorized or required to act on
behalf of an older adult.
"Financial exploitation." Any of the following:
(1) The wrongful or unauthorized taking, withholding,
appropriation or use of money, assets or property of an older
adult.
(2) An act or omission taken by a person, including
through the use of a power of attorney, guardianship or
conservatorship of an older adult, to:
(i) obtain control, through deception, intimidation
or undue influence, over the older adult's money, assets
or property to deprive the older adult of the ownership,
use, benefit or possession of the older adult's money,
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assets or property; or
(ii) unlawfully convert money, assets or property of
the older adult to deprive the older adult of the
ownership, use, benefit or possession of the older
adult's money, assets or property.
"Financial services provider." Any of the following:
(1) A depository institution or affiliate of a
depository institution as those terms are defined in section
3 of the Federal Deposit Insurance Act (64 Stat. 873, 12
U.S.C. § 1813).
(2) A credit union eligible for insurance of member
accounts under the Federal Credit Union Act (48 Stat. 1216,
12 U.S.C. § 1751 et seq.).
(3) A broker-dealer as defined in section 102(e) of the
act of December 5, 1972 (P.L.1280, No.284), known as the
Pennsylvania Securities Act of 1972.
(4) An investment adviser as defined in section 102(j)
of the Pennsylvania Securities Act of 1972.
(5) An agent as defined in section 102(c) of the
Pennsylvania Securities Act of 1972.
(6) An investment advisor representative as defined in
section 102(j.1) of the Pennsylvania Securities Act of 1972.
(7) A licensee as defined in section 2 of the act of May
15, 1933 (P.L.565, No.111), known as the Department of
Banking and Securities Code, or a similar entity.
(8) A business or agency that engages in an activity
which the department determines, by regulation, to be an
activity that is similar to, related to or a substitute for
an activity conducted by a business described in paragraph
(1), (2), (3), (4), (5), (6) or (7).
"Health care provider." A licensed hospital or health care
facility or person who is licensed, certified or otherwise
regulated to provide health care services under the laws of this
Commonwealth, including a physician, podiatrist, optometrist,
psychologist, physical therapist, certified nurse practitioner,
registered nurse, nurse midwife, physician's assistant,
chiropractor, dentist, pharmacist or an individual accredited or
certified to provide behavioral health services.
"Home care worker." An individual employed by a home care
agency, referred by a home care registry or listed on the home
care worker directory to provide any of the following services:
(1) Personal care.
(2) Assistance with instrumental activities of daily
living.
(3) Companionship services for the limited purposes of
providing supervision and minimal assistance that is focused
solely on the health and safety of the individual.
(4) Respite care to support an individual on a short-
term basis.
(5) Activities to support an individual with acquiring,
maintaining or improving skills in home-based and community-
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based settings, including with employment.
"Intimidation." An act or omission by a person toward
another person that obstructs, impedes, impairs, prevents or
interferes with the administration of this chapter or other law
intended to protect older adults from mistreatment.
"Law enforcement official." Any of the following:
(1) A police officer of a municipality.
(2) A district attorney.
(3) A Pennsylvania State Police officer.
(4) The Attorney General.
(5) An agent of the Department of Justice and other
Federal law enforcement agencies, who possesses law
enforcement powers and duties.
"Mandatory reporter." Any of the following:
(1) Administrators and employees of a facility.
(2) Health care providers.
(3) A law enforcement official.
"Neglect." The failure to provide for oneself or the failure
of a caretaker to provide goods or services essential to avoid a
clear and serious threat to physical or mental health. An older
adult who does not consent to the provision of protective
services may not be found to be neglected solely on the grounds
of environmental factors which are beyond the control of the
older adult or the caretaker, such as inadequate housing,
furnishings, income, clothing or medical care.
"Older adult." An individual within the jurisdiction of the
Commonwealth who is 60 years of age or older.
"Older adult in need of protective services." An
incapacitated older adult who is unable to perform or obtain
services that are necessary to maintain physical or mental
health, for whom there is no responsible caretaker and who is at
imminent risk of danger to self or property.
"Protective services." Those activities, resources and
supports provided to older adults under this chapter to detect,
prevent, reduce or eliminate abuse, neglect, exploitation and
abandonment.
"Recipient." An individual who receives care, services or
treatment in or from a facility.
"Serious bodily injury." Injury which creates a substantial
risk of death or which causes serious disfigurement of a body
part or organ, protracted loss or impairment of the function of
a body member or organ or severe pain. The term does not include
an isolated accidental injury self-inflicted by an older adult.
"Service plan." As follows:
(1) A written plan developed by an area agency on aging
on the basis of a comprehensive assessment of an older adult
that describes identified needs, goals to be achieved and
specific services designed to support goal attainment, which
includes regular follow-up and predetermined reassessment of
progress.
(2) As used in this definition, specific services
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designed to support goal attainment may include homemaker
services, home-delivered meals, personal care, other in-home
services, emergency shelter or food, legal aid services and
transportation services.
(3) Service plans shall be cooperatively developed by
area agency on aging staff, the older adult or the older
adult's legal representative and other family members, if
appropriate.
(4) The service plan shall address special needs of
other members of the household unit if they affect the older
adult's need for protective services.
"Suspicious death." A death which is unexpected with
unexplained circumstances or cause.
§ 6903. Intent.
It is not the intent of this chapter to impose responsibility
on an individual if the responsibility would not otherwise exist
in law.
SUBCHAPTER B
DUTIES OF DEPARTMENT
Sec.
6910. Public education.
6911. Interdepartmental consultation.
6912. Training required.
6913. Confidentiality.
6914. Schedule and annual plan.
§ 6910. Public education.
The department shall conduct an ongoing campaign designed to
inform and educate older adults, professionals and the general
public about the need for and the availability of protective
services under this chapter.
§ 6911. Interdepartmental consultation.
The following apply:
(1) The department shall consult with other Commonwealth
agencies on the design and implementation of the ongoing
public awareness campaign.
(2) The department shall consider the concerns of area
agencies on aging on the design and implementation of the
ongoing public awareness campaign.
§ 6912. Training required.
(a) Standards.--The department shall establish minimum
standards of experience and training that protective services
providers receiving money from the department shall be required
to follow in the selection and assignment of employees for the
provision of protective services.
(b) Mandatory reporters.--The department shall establish a
training program for mandatory reporters to inform employees
about the requirement to report under this chapter.
§ 6913. Confidentiality.
The department shall establish methods which shall be used by
an area agency on aging, its designees and its service providers
to ensure the privacy of older adults receiving services and the
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confidentiality of all records.
§ 6914. Schedule and annual plan.
(a) Establishment.--The department shall establish a
schedule for the submission and approval of the plans associated
with the development of training provided in section 6912
(relating to training required).
(b) Protective services plan.--Each area agency on aging
shall include a protective services plan as part of its annual
plan. The plan shall describe the local implementation of this
chapter, including the organization, staffing, mode of
operations and financing of protective services and the
provisions made for the purchase of services, interagency
relations, interagency agreements, service referral mechanisms
and locus of responsibility for cases with multiservice agency
needs. The plan shall include a list of each public or private
entity that has been identified by the area agency on aging as
having substantial contact with potential victims or
perpetrators of abuse, neglect, exploitation and abandonment.
The list shall be submitted to the department for purposes of
the public education campaign under section 6910 (relating to
public education).
SUBCHAPTER C
DUTIES OF AREA AGENCIES ON AGING
Sec.
6920. Receipt of reports.
6921. Investigations.
6922. Investigations involving facilities.
6923. Investigations involving law enforcement officials.
6924. Access to older adults.
6925. Access to records.
6926. Rights of older adults.
6927. Confidentiality standards required.
6928. Availability of protective services.
§ 6920. Receipt of reports.
The area agency on aging must be capable of receiving reports
of older adults in need of protective services at all times.
This capability may include the use of a local emergency
response system or a crisis intervention agency, if access can
be made to a protective services caseworker in appropriate
emergency situations, as set forth in regulations issued by the
department. All reports received orally shall be documented in a
manner set forth by the department.
§ 6921. Investigations.
(a) Duty.--An area agency on aging shall investigate each
report in accordance with regulations issued by the department.
The investigation shall be initiated within 72 hours after the
receipt of the report and shall be carried out under regulations
issued by the department. The regulations shall provide for the
methods of conducting investigations and shall ensure that steps
are taken to avoid a conflict of interest. Consent of the older
adult is not required in order to begin to investigate reports
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of abuse, neglect, exploitation or abandonment. The department
and any other Commonwealth agency shall share information with
each other and with mandatory reporters, fiduciaries and
financial institutions as necessary to ensure the health, safety
and welfare of the older adult and to assist financial
institutions and fiduciaries in exercising the financial
institution's and fiduciaries' authority to prohibit
disbursement of funds and transactions as provided by section
6952 (relating to disbursement of funds and transactions).
(b) Closure.--If after investigation by the area agency on
aging the report is unsubstantiated, the case shall be closed
and all information identifying the reporter and the alleged
perpetrator shall be immediately deleted from all records. For
purposes of substantiating a pattern of abuse, neglect,
exploitation or abandonment, the name of the alleged victim and
any information describing the alleged act of abuse, neglect,
exploitation or abandonment may be maintained for a period of
six months under procedures established by the department.
(c) Timely assessment.--If the report is substantiated by
the area agency on aging or if an assessment is necessary in
order to determine whether or not the report is substantiated,
the area agency on aging shall provide for a timely assessment
if the older adult consents to an assessment. Upon completion of
the assessment, written findings shall be prepared which shall
include recommended action. The service plan shall provide for
the least restrictive alternative, encouraging self-
determination and continuity of care, shall be in writing and
shall include a recommended course of action, which may include
the pursuit of civil or criminal remedies. If an older adult
found to be in need of protective services does not consent to
an assessment or the development of a service plan, the area
agency on aging may apply the provisions of section 6933
(relating to involuntary intervention by emergency court order)
to the case.
(d) Environmental factors.--An older adult may not be found
to be abused solely on the grounds of environmental factors that
are beyond the control of the older adult or the caretaker, such
as inadequate housing, furnishings, income, clothing or medical
care.
§ 6922. Investigations involving facilities.
If the report concerns a facility, the area agency on aging
shall notify the local ombudsman and the licensing agency.
Investigations concerning facilities shall be conducted under
procedures developed by the department in consultation with the
Commonwealth agency with oversight authority for the facility.
The department and any other Commonwealth agency shall share
information with each other and with mandatory reporters,
fiduciaries and financial institutions as necessary to ensure
the health, safety and welfare of the older adult and to assist
financial institutions and fiduciaries in exercising the
financial institution's and fiduciaries' authority to prohibit
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disbursement of funds and transactions as provided by section
6952 (relating to disbursement of funds and transactions).
Facilities shall take reasonable steps to protect older adults
following receipt of a report of suspected abuse, neglect,
exploitation or abandonment involving an employee, including a
plan of supervision or suspension.
§ 6923. Investigations involving law enforcement officials.
The following shall apply:
(1) To the extent possible, law enforcement officials,
the area agency on aging and other mandatory reporters shall
coordinate respective investigations and shall advise each
other and provide applicable additional information on an
ongoing basis.
(2) Upon receiving a report of any of the following, the
area agency on aging shall immediately notify a law
enforcement official:
(i) Suspicious death.
(ii) Serious bodily injury.
(iii) Sexual abuse.
(3) (i) Following a referral to a law enforcement
official, the area agency on aging shall contact a law
enforcement official to obtain information about actions
taken and the outcomes, including any decisions regarding
criminal charges, and the law enforcement official shall
provide the information to the extent that the
information is available.
(ii) The area agency on aging shall report the
information under subparagraph (i) to the department in a
manner prescribed by the department.
§ 6924. Access to older adults.
(a) General rule.--The following apply:
(1) The area agency on aging shall have access to older
adults who have been reported to be in need of protective
services in order to:
(i) Investigate reports.
(ii) Assess needs of the older adult and develop a
service plan for addressing those needs.
(iii) Provide for the delivery of services by the
area agency on aging or other service provider as
provided for under the service plan.
(2) If the area agency on aging is denied access to an
older adult reported to be in need of protective services,
the area agency on aging may petition the court for an order
to require the appropriate access when either of the
following conditions apply:
(i) The caretaker or a third party has interfered
with the completion of the investigation, the assessment
and service plan or the delivery of services.
(ii) The area agency on aging can demonstrate that
the older adult reported to be in need of protective
services is denying access because of coercion, extortion
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or justifiable fear of future abuse, neglect,
exploitation or abandonment.
(b) Petition.--The area agency on aging may petition the
court for an order to require any of the following:
(1) Access to the older adult.
(2) A physical health evaluation of the older adult.
(3) A behavioral health evaluation of the older adult.
§ 6925. Access to records.
(a) Area agency on aging access.--The area agency on aging
shall, subject to the consent of the older adult, have access to
all records for the purposes of:
(1) Assessing an older adult's need for services.
(2) Planning and delivery of services.
(3) Investigating reports.
(b) Refusal.--If the area agency on aging is denied access
to records necessary for the completion of a proper
investigation of a report, assessment or service plan, or the
delivery of needed services in order to prevent further abuse,
neglect, exploitation or abandonment of the older adult reported
to be in need of protective services, the agency may petition
the court of common pleas for an order requiring the appropriate
access when either of the following conditions apply:
(1) The older adult has provided written consent for any
confidential records to be disclosed and the keeper of the
records denies access.
(2) The agency can demonstrate that the older adult is
denying access to records because of incompetence, coercion,
extortion or justifiable fear of future abuse, neglect,
exploitation or abandonment.
(c) Request of certain records.--Records of State agencies,
private organizations, financial institutions, fiduciaries,
medical institutions and practitioners and persons reasonably
suspected of engaging in or facilitating the abuse, neglect,
exploitation or abandonment of an older adult, which the area
agency on aging reasonably believes to be necessary to complete
an investigation or assessment and service plan, shall be
requested in written form and made available to the area agency
on aging unless the disclosure is prohibited by any other
provision of Federal or State law. Except as provided by a court
order, access to financial records shall be limited to records
relating to the most recent transaction or transactions that may
comprise financial exploitation, not to exceed 60 calendar days
prior to the first transaction that was reported or 60 calendar
days after the last transaction that was reported.
(d) Compensation.--The area agency on aging or the
department may compensate a person requested or ordered to
provide records to the area agency on aging for the reasonable
costs of producing records in a manner consistent with the
requirements of section 1115(a) of the Right to Financial
Privacy Act of 1978 (Public Law 95-630, 12 U.S.C. § 3415).
§ 6926. Rights of older adults.
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(a) Notification.--The area agency on aging shall discreetly
notify the older adult during the investigation that a report
has been made and shall provide the older adult with a brief
summary of the nature of the report.
(b) Information.--As provided in section 6934 (relating to
confidentiality of records), the older adult who is the subject
of a report, or the older adult's guardian if the guardian is
not named as a perpetrator in the report, may receive, upon
written request, a summary of the report of need except
information that would identify the person who made a report of
suspected abuse, neglect, exploitation or abandonment or persons
who cooperated in a subsequent investigation.
(c) Appeal.--A denial of services by the department or an
area agency on aging under this subchapter may be appealed
according to the provisions of the rules and regulations issued
by the department under Article XXII-A of the act of April 9,
1929 (P.L.177, No.175), known as The Administrative Code of
1929.
§ 6927. Confidentiality standards required.
Area agencies on aging shall utilize the department's
confidentiality standards established under section 6913
(relating to confidentiality).
§ 6928. Availability of protective services.
The area agency on aging shall offer protective services
under any of the following conditions:
(1) An older adult requests the services.
(2) Another interested person requests the services on
behalf of an older adult.
(3) After investigation of a report, the area agency on
aging determines the older adult is in need of the services.
SUBCHAPTER D
PROTECTIVE SERVICES
Sec.
6930. Consent by request.
6931. Interference with services.
6932. Financial obligations, liabilities and payments.
6933. Involuntary intervention by emergency court order.
6934. Confidentiality of records.
§ 6930. Consent by request.
An older adult shall receive protective services voluntarily
unless the services are ordered by a court of competent
jurisdiction.
§ 6931. Interference with services.
If a person interferes with the provision of services or
interferes with the right of an older adult to consent to
provision of services, the area agency on aging may petition the
court for an order enjoining the interference.
§ 6932. Financial obligations, liabilities and payments.
All older adults receiving protective services and all
agencies providing services under this subchapter shall comply
with the following provisions regarding liability for the
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payment of services:
(1) Funding to provide or make available protective
services under this subchapter shall not be used in place of
any public or private entitlements or benefits for which the
older adult receiving protective services under this
subchapter is or may be eligible.
(1.1) Funding to provide or make available protective
services shall not be available until eligibility and receipt
of benefits under public and private entitlements or
resources have been exhausted.
(2) Funding available to local protective services
agencies under this subchapter may be used to cover the costs
of activities, including, but not limited to:
(i) Administering protective services plans.
(ii) Receiving and maintaining records of reports of
abuse, neglect, exploitation and abandonment.
(iii) Conducting investigations of reported abuse,
neglect, exploitation and abandonment.
(iv) Carrying out assessments and developing service
plans.
(v) Petitioning the court.
(vi) Providing for emergency involuntary
intervention.
(vii) Arranging for available services needed to
carry out service plans, which may include, as
appropriate, arranging for services for other persons in
the household unit in order to reduce, correct or
eliminate abuse, neglect, exploitation or abandonment of
an older adult.
(viii) Purchasing, on a temporary basis, services
determined by a service plan to be necessary to reduce,
correct or eliminate abuse, neglect, exploitation or
abandonment of an older adult when the services are not
available within the existing resources of the area
agency on aging or other appropriate provider. Purchase
of services under this provision is limited to a 30-day
period which may be renewed with adequate justification
under regulations issued by the department.
(3) Older adults receiving protective services shall not
be required to pay a fee for services received by other older
adults when the receipt of the services by others is not
subject to cost sharing.
§ 6933. Involuntary intervention by emergency court order.
(a) Emergency petition.--An area agency on aging may
petition a court of common pleas for an emergency order to
provide protective services to an older adult who is at imminent
risk of death, sexual abuse, serious bodily injury or financial
exploitation. The court of common pleas shall grant the area
agency on aging's petition if the court finds, by clear and
convincing evidence, that failure to provide protective services
will place the older adult at imminent risk of death, sexual
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abuse, serious bodily injury or financial exploitation. The
courts of common pleas of each judicial district shall ensure
that a judge or magisterial district judge is available at all
times to accept and rule on petitions for emergency court orders
under this section whenever the area agency on aging determines
that a delay until normal court hours may significantly increase
danger to the older adult.
(b) Limited order.--The court, after finding clear and
convincing evidence of the need for an emergency order, shall
order only services necessary to remove the conditions creating
the established need.
(c) Right to counsel.--In order to protect the rights of an
older adult for whom protective services are being ordered, an
emergency court order under this section shall provide that the
older adult has the right to legal counsel. If the older adult
is unable to provide for counsel, counsel shall be appointed by
the court.
(d) Forcible entry.--If it is necessary to forcibly enter
premises after obtaining a court order, a law enforcement
official may do so, accompanied by a representative of the area
agency on aging.
(e) Health and safety requirements.--The area agency on
aging shall take reasonable steps to ensure that while the older
adult is receiving services under an emergency court order, the
health and safety needs of any of the older adult's dependents
are met and that the personal property and dwelling of the older
adult are secure.
§ 6934. Confidentiality of records.
(a) Requirement.--Information contained in reports, records
of investigation, assessments and service plans created under
this subchapter shall be considered privileged and confidential
and shall be maintained under regulations promulgated by the
department. The department or the area agency on aging may not
release information that could be detrimental to the older adult
except that the information shall be released to a law
enforcement official under subsection (b)(2) and may be used by
the department in civil proceedings, subject to protective
orders. All information contained in protective service records
is subject to other Federal and State confidentiality and
security laws.
(b) Release of protective services records.--Protective
services records may be provided as follows:
(1) Protective services records may be provided to a
court of competent jurisdiction or to another party pursuant
to a court order. A subpoena shall not be a court order for
purposes of this section.
(2) Protective services records may be provided to law
enforcement officials or a coroner if the information is
relevant to the official's or coroner's investigation of
abuse, neglect, exploitation, abandonment or death of the
older adult.
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(3) In arranging specific services to carry out service
plans, the area agency on aging may disclose information to
appropriate service providers as may be necessary to initiate
the delivery of services.
(4) The older adult who is the subject of a report or
the older adult's guardian, if the guardian is not named as a
perpetrator in the report, may receive, upon written request,
a summary of the report of need except information that would
identify the person who made a report of suspected abuse,
neglect, exploitation or abandonment or persons who
cooperated in a subsequent investigation.
(5) A person who made a report of suspected abuse,
neglect, exploitation or abandonment may receive, upon
written request, confirmation from the department that the
report was received and the area agency on aging is acting in
accordance with this subchapter.
(6) For the purposes of monitoring agency performance or
conducting other official duties, appropriate staff of the
department, as designated by the Secretary of Aging, may
access protective services records.
(7) The department or the area agency on aging may
collaborate or share information included in protective
services records with Commonwealth agencies for purposes of
official Commonwealth business.
(8) The department or the area agency on aging may share
a summary of protective services information with another
area agency on aging that is performing responsibilities
under this subchapter relevant to older adults within the
area agency on aging's jurisdiction.
(9) An employee of an agency of another state who
performs older adult protective services similar to those
under this subchapter may access a summary of protective
services information relevant to older adults within the area
agency on aging's jurisdiction.
(10) Protective services records may be provided to a
health care provider who is examining or treating the older
adult and who suspects that the older adult is in need of
protection under this subchapter.
(11) Protective services records may be provided to the
director, or an individual specifically designated in writing
by the director, of a hospital or other medical institution
where the older adult is being treated if the director or
designee suspects that the recipient is in need of protection
under this chapter.
(12) Unless prohibited by Federal law, protective
services records relating to financial exploitation may be
provided to a financial institution or fiduciary as necessary
to exercise the authority to prohibit disbursement of funds
and transactions provided under section 6952 (relating to
disbursement of funds and transactions).
SUBCHAPTER E
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REPORTING
Sec.
6940. Voluntary reporting.
6941. Mandatory reporting.
6942. Mandatory reporting to law enforcement officials and
department.
6943. Contents of reports.
6944. Mandatory reporter training.
6945. Coroner.
6946. Protecting identity of reporter and cooperating
witnesses.
§ 6940. Voluntary reporting.
A person having reasonable cause to believe that an older
adult may be a victim of abuse, neglect, exploitation or
abandonment may report the information to the area agency on
aging.
§ 6941. Mandatory reporting.
A mandatory reporter who has reasonable cause to suspect that
an older adult may be a victim of abuse, neglect, exploitation
or abandonment shall immediately make an oral report to the area
agency on aging. If applicable, the area agency on aging shall
advise the mandatory reporter of additional reporting
requirements that may apply under section 6942 (relating to
mandatory reporting to law enforcement officials and
department). Within 48 hours of making the oral report, the
mandatory reporter shall make a written report to the area
agency on aging.
§ 6942. Mandatory reporting to law enforcement officials and
department.
In addition to the report under section 6941 (relating to
mandatory reporting), a mandatory reporter who has reasonable
cause to suspect that an older adult may be a victim of
suspicious death, serious bodily injury or sexual abuse shall
immediately contact law enforcement officials and the department
to make an oral report. Within 48 hours of making the oral
report, the mandatory reporter shall make a written report to
appropriate law enforcement officials and to the area agency on
aging. The area agency on aging shall forward the report to the
department within 48 hours of receipt.
§ 6943. Contents of reports.
A written mandatory report under this section shall be in a
manner and on forms prescribed by the department. At a minimum,
the report shall include the following information, as well as
anything additional required by regulation:
(1) Name, age, sex and address of the older adult.
(2) Name and address of the older adult's legal
representative or next of kin.
(3) Name and address of the facility, if applicable.
(4) Nature and location of the reported incident and any
specific comments or observations directly related to the
alleged incident and the older adult involved.
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(5) Any relevant information known related to the
identity of the alleged perpetrator, including, but not
limited to, name, age, sex and relationship to the older
adult.
(6) Name of the individual making the report, contact
information for the reporter and information regarding any
actions taken by the reporter in response to the incident.
§ 6944. Mandatory reporter training.
Mandatory reporters shall be trained by either the department
or an agent of the department on the requirements to report
identified within this subchapter.
§ 6945. Coroner.
If there is reasonable cause to suspect that an older adult
died as a result of abuse, neglect, exploitation or abandonment,
the area agency on aging shall give the oral report and forward
a copy of the written report to the appropriate coroner within
24 hours.
§ 6946. Protecting identity of reporter and cooperating
witnesses.
(a) Prohibition.--Except for disclosures to law enforcement
officials, the release of records that would identify the
individual who made a report under this subchapter or an
individual who cooperated in a subsequent investigation is
prohibited.
(b) Identity protection.--If records are provided pursuant
to a court order, the identity of the reporter and cooperating
witnesses shall be deleted, unless otherwise ordered by the
court after an in-camera review.
SUBCHAPTER F
FINANCIAL INSTITUTIONS AND FIDUCIARIES
Sec.
6950. Reporting financial exploitation.
6951. Financial services provider training.
6952. Disbursement of funds and transactions.
6953. Immunity and defenses.
§ 6950. Reporting financial exploitation.
Notwithstanding any law limiting or prohibiting disclosure,
except as otherwise provided by Federal law, a financial
services provider, including a designated employee of a
financial services provider, may report financial exploitation
if the employee reasonably believes that financial exploitation
of an older adult may have occurred, may have been attempted or
is being attempted.
§ 6951. Financial services provider training.
(a) Requirement.--A financial services provider with
employees in this Commonwealth or with employees regularly
engaging in financial transactions with or on behalf of older
adults in this Commonwealth shall provide training to employees
who have direct contact with older adults and conduct financial
transactions for or on behalf of older adults.
(b) Program.--The department, in consultation with the
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Department of Banking and Securities and representatives of the
financial services industry, may establish a model training
program for employees of financial services providers regarding
the identification and prevention of financial exploitation of
older adults and on procedures to provide relief to older adults
from financial exploitation, including training regarding the
following:
(1) When to report suspected financial exploitation.
(2) To whom suspected exploitation should be reported.
(3) The information to be included in a report.
(4) The applicable laws, rules and regulations that must
be followed while reporting suspected financial exploitation.
(c) Information.--The financial services provider training
shall include information that:
(1) Assists employees in recognizing signs of potential
financial abuse of an older adult, including, but not limited
to, the following:
(i) Unusual activity in an older adult's retirement
account, brokerage account or other accounts managed by
an agent or investment adviser representative or deposit
account.
(ii) Automated teller machine withdrawals by an
older adult who previously never used an automated teller
machine or debit card.
(iii) Suspicious signatures on checks.
(2) Informs employees about the applicable provisions of
this chapter and the process that employees should use if
making an abuse report or a report of need for protective
services.
(d) Compliance.--A financial services provider shall be
deemed in compliance with this section if the provider uses a
model training program established by the department or is
subject to visitorial examination by a regulatory authority that
requires employee training to control fraud or money laundering
and incorporates the activities required under subsections (b)
and (c) into its training program.
§ 6952. Disbursement of funds and transactions.
(a) Reasonable belief.--If a financial services provider or
fiduciary reasonably believes, after initiating an internal
review of a disbursement or transaction, that financial
exploitation of an older adult may have occurred, may have been
attempted or is being attempted, the financial services provider
or fiduciary may refuse to disburse funds or engage in a
transaction, as appropriate, to prevent financial exploitation
of an older adult with respect to the following accounts:
(1) An account of the older adult.
(2) An account on which the older adult is a
beneficiary, including a trust or guardianship account.
(3) An account of a person suspected of perpetrating
financial exploitation of an older adult.
(b) Area agency on aging or law enforcement.--A financial
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services provider or fiduciary may refuse to disburse funds or
engage in a transaction under this section if an area agency on
aging or law enforcement official provides information to the
financial services provider or fiduciary demonstrating that it
is reasonable to believe that financial exploitation of an older
adult may have occurred, may have been attempted or is being
attempted.
(c) Discretion.--A financial services provider or fiduciary
shall not be required to refuse to disburse funds or engage in a
transaction when provided with information alleging that
financial exploitation may have occurred, may have been
attempted or is being attempted, but may use its discretion to
determine whether to refuse to disburse funds based on the
information available to the financial services provider or
fiduciary.
(d) Duties.--Except as provided by Federal or State law, a
financial services provider or fiduciary that refuses to
disburse funds or engage in a transaction based on a reasonable
belief that financial exploitation of an older adult may have
occurred, may have been attempted or is being attempted shall:
(1) Make a reasonable effort to notify, orally or in
writing, each person authorized to transact business on the
account, that is a beneficiary of the account or that has
been authorized by the older adult to receive notifications
regarding account activity, except for a person reasonably
believed to have engaged in suspected or attempted financial
exploitation of the older adult. A notification shall be
sufficient if it provides the following:
(i) Notice that the financial institution or
fiduciary has temporarily blocked the disbursement of
funds or delayed the execution of transactions as
authorized under section 6950 (relating to reporting
financial exploitation).
(ii) The name of the financial institution or
fiduciary.
(iii) The account or transaction to which the
notification applies.
(iv) The name and phone number of a contact person
representing the financial institution or fiduciary.
(v) The phone number of the area agency on aging or
law enforcement official to which a report has been
provided.
(2) Immediately make an oral report to the agency.
Within two business days of making an oral report, the
financial services provider shall make a written report to
the area agency on aging.
(e) Expiration.--A refusal to disburse funds or engage in a
transaction as authorized by this section based on the
reasonable belief of a financial services provider that
financial exploitation of an older adult may have occurred, may
have been attempted or is being attempted shall expire upon the
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sooner of the following:
(1) Fifteen business days after the date on which the
financial services provider or fiduciary first refused to
disburse the funds or engage in the transaction, unless
terminated or extended by an order of a court of competent
jurisdiction, a law enforcement official, the department or
an area agency on aging. An additional 10 business days shall
be permitted, if requested by a law enforcement official, the
department or an area agency on aging, following the
submission of a petition for a court order further extending
the time period.
(2) Except as provided under paragraph (1), the time
when the financial services provider or fiduciary is
satisfied that the disbursement will not result in financial
exploitation of an older adult.
(f) Order.--A court of competent jurisdiction may enter an
order extending the refusal by the financial services provider
or fiduciary to disburse funds or engage in a transaction based
on a reasonable belief that financial exploitation of an older
adult may have occurred, may have been attempted or is being
attempted. A court of competent jurisdiction may also order
other protective relief as authorized.
§ 6953. Immunity and defenses.
(a) Immunity.--Except as provided under subsection (c), a
financial services provider or fiduciary and its directors,
officers, employees or agents shall not be subject to a claim
for damages or other civil or criminal liability for the
following:
(1) The identification or failure to identify the
financial exploitation of an older adult.
(2) A decision to make a report or not make a report
under this chapter.
(3) A decision to allow the disbursement of funds or
engage in a transaction under this chapter.
(4) A refusal to disburse funds or engage in a
transaction under this chapter.
(5) The release of information to a law enforcement
official, the department or an area agency on aging as
authorized by this chapter.
(6) The provision of a notice under section 6952
(relating to disbursement of funds and transactions).
(b) Additional immunities and defenses.--Notwithstanding any
other law to the contrary:
(1) The refusal by a financial services provider to
engage in a transaction authorized under this subsection
shall not constitute the wrongful dishonor of an item under
13 Pa.C.S. § 4402 (relating to liability of bank to customer
for wrongful dishonor; time of determining insufficiency of
account).
(2) A reasonable belief that payment of a check will
facilitate the financial exploitation of an older adult shall
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constitute reasonable grounds to doubt the collectability of
the item for purposes of the Expedited Funds Availability Act
(Public Law 100-86, 12 U.S.C. § 4001 et seq.), the Check
Clearing for the 21st Century Act (Public Law 108-100, 12
U.S.C. § 5001 et seq.) and 12 CFR Pt. 229 (relating to
availability of funds and collection of checks).
(c) Limitation.--The immunities and defenses provided under
this section shall not apply to a director, officer, employee or
agent involved in the financial exploitation of an older adult.
SUBCHAPTER G
CRIMINAL HISTORY
Sec.
6960. Criminal history.
6961. Grounds for denying employment.
6962. Provisional employees for limited periods.
§ 6960. Criminal history.
(a) General rule.--A facility shall require an individual
under subsection (b) to submit the following information, which
must have been obtained within the preceding one-year period:
(1) Under 18 Pa.C.S. Ch. 91 (relating to criminal
history record information), a report of criminal history
record information from the Pennsylvania State Police or a
statement from the Pennsylvania State Police that the central
repository contains no information relating to that person.
The criminal history record information shall be limited to
that which is disseminated under 18 Pa.C.S. § 9121(b)(2)
(relating to general regulations).
(2) A report of Federal criminal history record
information pursuant to the Federal Bureau of Investigation's
appropriation under the Departments of State, Justice, and
Commerce, the Judiciary, and Related Agencies Appropriation
Act, 1973 (Public Law 92-544, 86 Stat. 1109). The department
shall be the intermediary for the purposes of this paragraph.
For the purposes of this paragraph, the individual shall
submit a full set of fingerprints in a manner prescribed by
the department. The Commonwealth shall submit the
fingerprints to the Federal Bureau of Investigation for a
national criminal history record check. The information
obtained from the criminal record check shall be used by the
department to determine the individual's eligibility. The
determination shall be submitted to the administrator by the
applicant, prior to commencing employment, or by the
employee. The administrator shall insure confidentiality of
the information. The provisions of 18 Pa.C.S. § 9121(b)(2)
shall not apply if the request for a report of Federal
criminal history record information is made under this
section.
(b) Reports.--The following individuals shall submit the
reports of criminal history record information required under
subsection (a):
(1) An applicant, with the applicant's application.
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(2) An employee.
(3) An administrator who has or may have direct contact
with a recipient.
(4) An operator who has or may have direct contact with
a recipient.
(c) New reports.--New reports of criminal history
information shall be obtained in accordance with the following:
(1) Beginning on the effective date of this section, an
individual under subsection (b) shall be required to obtain
the report of criminal history record information required
under subsection (a)(2) every 60 months. The date for
required renewal shall be from the date of the individual's
oldest report of criminal history record information.
(2) An individual identified in subsection (b) with a
current report of criminal history record information issued
prior to the effective date of this subsection shall be
required to obtain the report of criminal history record
information required under subsection (a)(2) within 60 months
from the date of the individual's oldest report of criminal
history record information or, if the current report of
criminal history record information is older than 60 months,
within one year of the effective date of this section.
(3) An individual identified in subsection (b) who was
previously not required to have a report of criminal history
information shall be required to obtain the reports of
criminal history information required under subsection (a)(1)
and (2) no later than a year from the effective date of this
section.
(d) Written notice of new arrest or conviction.--
(1) If an employee is arrested for or convicted of an
offense that would constitute grounds for denying employment
under section 6961 (relating to grounds for denying
employment), the employee shall provide the administrator or
designee with written notice not later than 72 hours after
the arrest or conviction.
(2) If the person responsible for employment decisions
or the administrator has a reasonable belief that an employee
was arrested or convicted for an offense that would
constitute grounds for denying employment under section 6961,
or the employee has provided notice as required under
paragraph (1), the person responsible for employment
decisions or the administrator shall immediately require the
employee to submit current information as required under
subsection (a). The cost of the information set forth in
subsection (a) shall be borne by the facility.
§ 6961. Grounds for denying employment.
(a) General rule.--Subject to subsection (f), a facility may
not hire or retain an individual required to submit information
under section 6960 (relating to criminal history) if the
individual's criminal history record information indicates the
individual has been convicted of an offense under one or more of
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the following provisions of 18 Pa.C.S. (relating to crimes and
offenses):
(1) A felony under Chapter 25 (relating to criminal
homicide).
(2) Section 3011 (relating to trafficking in
individuals).
(3) Section 3121 (relating to rape).
(4) Section 3124.2 (relating to institutional sexual
assault).
(5) Section 3125 (relating to aggravated indecent
assault).
(6) A Federal or out-of-State offense similar in nature
to those crimes listed under this subsection.
(b) Twenty-five-year ban.--Subject to subsection (f), a
facility may not hire or retain an individual required to submit
information under section 6960 within 25 years from the
individual's release or discharge from a State or county
correctional institution or from termination of supervised
probation or parole, whichever is later, if the individual's
criminal history record information indicates the individual has
been convicted of any of the following offenses under one or
more of the following provisions of 18 Pa.C.S.:
(1) A misdemeanor under Chapter 25.
(2) A felony under Chapter 27 (relating to assault).
(3) A misdemeanor under section 2713 (relating to
neglect of care-dependent person).
(4) A misdemeanor under section 2718 (relating to
strangulation).
(5) Section 2901 (relating to kidnapping).
(6) Section 2902 (relating to unlawful restraint).
(7) Section 2903 (relating to false imprisonment).
(8) Section 3122.1 (relating to statutory sexual
assault).
(9) Section 3123 (relating to involuntary deviate sexual
intercourse).
(10) Section 3124.1 (relating to sexual assault).
(11) Section 3126 (relating to indecent assault).
(12) Section 3127 (relating to indecent exposure).
(13) Section 3129 (relating to sexual intercourse with
animal).
(14) Section 3301 (relating to arson and related
offenses).
(15) Section 3502 (relating to burglary).
(16) Chapter 37 (relating to robbery).
(17) Section 4115 (relating to falsely impersonating
persons privately employed).
(18) A felony under section 4120 (relating to identity
theft).
(19) Section 4302 (relating to incest).
(20) Section 4303 (relating to concealing death of
child).
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