SENATE AMENDED
PRIOR PRINTER'S NOS. 298, 1296, 1438 PRINTER'S NO. 4085
No. 305 Session of 1995
INTRODUCED BY VANCE, E. Z. TAYLOR, GRUPPO, ITKIN, NAILOR,
KUKOVICH, MICOZZIE, BUXTON, STURLA, D. R. WRIGHT, MARSICO,
TRELLO, HERMAN, FLICK, COLAFELLA, STISH, COY, STEELMAN,
CLARK, TRUE, RUBLEY, CIVERA, SAYLOR, D. W. SNYDER, GEIST,
MILLER, CORNELL, PLATTS, VAN HORNE, DEMPSEY, WAUGH, DeLUCA,
FAIRCHILD, OLASZ, BELARDI, MUNDY, BROWN, SHANER, BATTISTO,
CORRIGAN, YOUNGBLOOD, O'BRIEN, TIGUE, TRICH, FAJT, EGOLF,
BARD, SCHULER, BROWNE, ARMSTRONG, HALUSKA, SCRIMENTI, SATHER,
MICHLOVIC, MERRY, CAPPABIANCA, WILLIAMS, PETRARCA, BOSCOLA
AND WASHINGTON, JANUARY 25, 1995
SENATOR HECKLER, AGING AND YOUTH, IN SENATE, AS AMENDED,
OCTOBER 2, 1996
AN ACT
1 Amending the act of November 6, 1987 (P.L.381, No.79), entitled
2 "An act relating to the protection of the abused, neglected,
3 exploited or abandoned elderly; establishing a uniform
4 Statewide reporting and investigative system for suspected
5 abuse, neglect, exploitation or abandonment of the elderly;
6 providing protective services; providing for funding; and
7 making repeals," adding definitions of "registry" and
8 "serious bodily injury"; further providing for reporting, for <--
9 investigations of reports of need for protective services and
10 for confidentiality of records; and providing for a registry
11 of perpetrators of abuse in institutions. FURTHER PROVIDING <--
12 FOR DEFINITIONS, FOR REPORTING, FOR INVESTIGATIONS AND FOR
13 CONFIDENTIALITY OF RECORDS; PROVIDING FOR REPORTING SUSPECTED
14 ABUSE BY EMPLOYEES; AND MAKING EDITORIAL CHANGES.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. Section 3 of the THE act of November 6, 1987 <--
18 (P.L.381, No.79), known as the Older Adults Protective Services
19 Act, is amended by adding definitions A CHAPTER HEADING to read: <--
1 CHAPTER 1 <--
2 PRELIMINARY PROVISIONS
3 SECTION 2. SECTIONS 1, 2 AND 3 OF THE ACT ARE AMENDED TO
4 READ:
5 SECTION [1] 101. SHORT TITLE.
6 THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE OLDER ADULTS
7 PROTECTIVE SERVICES ACT.
8 SECTION [2] 102. LEGISLATIVE POLICY.
9 IT IS DECLARED THE POLICY OF THE COMMONWEALTH OF PENNSYLVANIA
10 THAT OLDER ADULTS WHO LACK THE CAPACITY TO PROTECT THEMSELVES
11 AND ARE AT IMMINENT RISK OF ABUSE, NEGLECT, EXPLOITATION OR
12 ABANDONMENT SHALL HAVE ACCESS TO AND BE PROVIDED WITH SERVICES
13 NECESSARY TO PROTECT THEIR HEALTH, SAFETY AND WELFARE. IT IS NOT
14 THE PURPOSE OF THIS ACT TO PLACE RESTRICTIONS UPON THE PERSONAL
15 LIBERTY OF INCAPACITATED OLDER ADULTS, BUT THIS ACT SHOULD BE
16 LIBERALLY CONSTRUED TO ASSURE THE AVAILABILITY OF PROTECTIVE
17 SERVICES TO ALL OLDER ADULTS IN NEED OF THEM. SUCH SERVICES
18 SHALL SAFEGUARD THE RIGHTS OF INCAPACITATED OLDER ADULTS WHILE
19 PROTECTING THEM FROM ABUSE, NEGLECT, EXPLOITATION AND
20 ABANDONMENT. IT IS THE INTENT OF THE GENERAL ASSEMBLY TO PROVIDE
21 FOR THE DETECTION AND REDUCTION, CORRECTION OR ELIMINATION OF
22 ABUSE, NEGLECT, EXPLOITATION AND ABANDONMENT, AND TO ESTABLISH A
23 PROGRAM OF PROTECTIVE SERVICES FOR OLDER ADULTS IN NEED OF THEM.
24 Section [3] 103. Definitions. <--
25 The following words and phrases when used in this act shall
26 have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 * * * <--
29 "ABANDONMENT." THE DESERTION OF AN OLDER ADULT BY A <--
30 CARETAKER.
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1 "ABUSE." THE OCCURRENCE OF ONE OR MORE OF THE FOLLOWING
2 ACTS:
3 (1) THE INFLICTION OF INJURY, UNREASONABLE CONFINEMENT,
4 INTIMIDATION OR PUNISHMENT WITH RESULTING PHYSICAL HARM, PAIN
5 OR MENTAL ANGUISH.
6 (2) THE WILLFUL DEPRIVATION BY A CARETAKER OF GOODS OR
7 SERVICES WHICH ARE NECESSARY TO MAINTAIN PHYSICAL OR MENTAL
8 HEALTH.
9 (3) SEXUAL HARASSMENT, RAPE OR ABUSE, AS DEFINED IN THE
10 ACT OF OCTOBER 7, 1976 (P.L.1090, NO.218), KNOWN AS THE
11 PROTECTION FROM ABUSE ACT.
12 NO OLDER ADULT SHALL BE FOUND TO BE ABUSED SOLELY ON THE GROUNDS
13 OF ENVIRONMENTAL FACTORS WHICH ARE BEYOND THE CONTROL OF THE
14 OLDER ADULT OR THE CARETAKER, SUCH AS INADEQUATE HOUSING,
15 FURNISHINGS, INCOME, CLOTHING OR MEDICAL CARE.
16 "ADMINISTRATOR." THE PERSON RESPONSIBLE FOR THE
17 ADMINISTRATION OF A FACILITY. THE TERM INCLUDES A PERSON
18 RESPONSIBLE FOR EMPLOYMENT DECISIONS OR AN INDEPENDENT
19 CONTRACTOR.
20 "AGENCY." THE LOCAL PROVIDER OF PROTECTIVE SERVICES, WHICH
21 IS THE AREA AGENCY ON AGING OR THE AGENCY DESIGNATED BY THE AREA
22 AGENCY ON AGING TO PROVIDE PROTECTIVE SERVICES IN THE AREA
23 AGENCY'S PLANNING AND SERVICE AREA.
24 "CARE." SERVICES PROVIDED TO MEET A PERSON'S NEED FOR
25 PERSONAL CARE OR HEALTH CARE. SERVICES MAY INCLUDE HOMEMAKER
26 SERVICES, ASSISTANCE WITH ACTIVITIES OF DAILY LIVING, PHYSICAL
27 THERAPY, OCCUPATIONAL THERAPY, SPEECH THERAPY, MEDICAL SOCIAL
28 SERVICES, HOME CARE AIDE SERVICES, COMPANION CARE SERVICES,
29 PRIVATE DUTY NURSING SERVICES, RESPIRATORY THERAPY, INTRAVENOUS
30 THERAPY, IN-HOME DIALYSIS AND DURABLE MEDICAL EQUIPMENT
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1 SERVICES, WHICH ARE ROUTINELY PROVIDED UNSUPERVISED AND WHICH
2 REQUIRE INTERACTION WITH THE CARE-DEPENDENT PERSON. THE TERM
3 DOES NOT INCLUDE DURABLE MEDICAL EQUIPMENT DELIVERY.
4 "CARE-DEPENDENT INDIVIDUAL." AN ADULT WHO, DUE TO PHYSICAL
5 OR COGNITIVE DISABILITY OR IMPAIRMENT, REQUIRES ASSISTANCE TO
6 MEET NEEDS FOR FOOD, SHELTER, CLOTHING, PERSONAL CARE OR HEALTH
7 CARE.
8 "CARETAKER." AN INDIVIDUAL OR INSTITUTION THAT HAS ASSUMED
9 THE RESPONSIBILITY FOR THE PROVISION OF CARE NEEDED TO MAINTAIN
10 THE PHYSICAL OR MENTAL HEALTH OF AN OLDER ADULT. THIS
11 RESPONSIBILITY MAY ARISE VOLUNTARILY, BY CONTRACT, BY RECEIPT OF
12 PAYMENT FOR CARE, AS A RESULT OF FAMILY RELATIONSHIP, OR BY
13 ORDER OF A COURT OF COMPETENT JURISDICTION. IT IS NOT THE INTENT
14 OF THIS ACT TO IMPOSE RESPONSIBILITY ON ANY INDIVIDUAL IF SUCH
15 RESPONSIBILITY WOULD NOT OTHERWISE EXIST IN LAW.
16 "CLIENT ASSESSMENT." SOCIAL, PHYSICAL AND PSYCHOLOGICAL
17 FINDINGS ALONG WITH A DESCRIPTION OF THE PERSON'S CURRENT
18 RESOURCES AND NEEDS.
19 "COURT." A COURT OF COMMON PLEAS OR A DISTRICT MAGISTRATE
20 COURT, WHERE APPLICABLE.
21 "DEPARTMENT." THE DEPARTMENT OF AGING OF THE COMMONWEALTH.
22 "EMPLOYEE." AN INDIVIDUAL WHO IS EMPLOYED BY A FACILITY. THE
23 TERM INCLUDES CONTRACT EMPLOYEES WHO HAVE DIRECT CONTACT WITH
24 RESIDENTS OR UNSUPERVISED ACCESS TO THEIR PERSONAL LIVING
25 QUARTERS. THE TERM INCLUDES ANY PERSON WHO IS EMPLOYED OR WHO
26 ENTERS INTO A CONTRACTUAL RELATIONSHIP TO PROVIDE CARE TO A
27 CARE-DEPENDENT INDIVIDUAL FOR MONETARY CONSIDERATION IN THE
28 INDIVIDUAL'S PLACE OF RESIDENCE.
29 "EXPLOITATION." AN ACT OR COURSE OF CONDUCT BY A CARETAKER
30 OR OTHER PERSON AGAINST AN OLDER ADULT OR AN OLDER ADULT'S
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1 RESOURCES, WITHOUT THE INFORMED CONSENT OF THE OLDER ADULT OR
2 WITH CONSENT OBTAINED THROUGH MISREPRESENTATION, COERCION OR
3 THREATS OF FORCE, THAT RESULTS IN MONETARY, PERSONAL OR OTHER
4 BENEFIT, GAIN OR PROFIT FOR THE PERPETRATOR OR MONETARY OR
5 PERSONAL LOSS TO THE OLDER ADULT.
6 "FACILITY." ANY OF THE FOLLOWING:
7 (1) A DOMICILIARY CARE HOME AS DEFINED IN SECTION 2202-A
8 OF THE ACT OF APRIL 9, 1929 (P.L.177, NO.175), KNOWN AS THE
9 ADMINISTRATIVE CODE OF 1929.
10 (2) A HOME HEALTH CARE AGENCY.
11 (3) A LONG-TERM CARE NURSING FACILITY AS DEFINED IN
12 SECTION 802.1 OF THE ACT OF JULY 19, 1979 (P.L.130, NO.48),
13 KNOWN AS THE HEALTH CARE FACILITIES ACT.
14 (4) AN OLDER ADULT DAILY LIVING CENTER AS DEFINED IN
15 SECTION 2 OF THE ACT OF JULY 11, 1990 (P.L.499, NO.118),
16 KNOWN AS THE OLDER ADULT DAILY LIVING CENTERS LICENSING ACT.
17 (5) A PERSONAL CARE HOME AS DEFINED IN SECTION 1001 OF
18 THE ACT OF JUNE 13, 1967 (P.L.31, NO.21), KNOWN AS THE PUBLIC
19 WELFARE CODE.
20 "HOME HEALTH CARE AGENCY." ANY OF THE FOLLOWING:
21 (1) A HOME HEALTH CARE ORGANIZATION OR AGENCY LICENSED
22 BY THE DEPARTMENT OF HEALTH.
23 (2) A PUBLIC OR PRIVATE AGENCY OR ORGANIZATION, OR PART
24 OF AN AGENCY OR ORGANIZATION, WHICH PROVIDES HEALTH CARE TO A
25 CARE-DEPENDENT INDIVIDUAL IN THE INDIVIDUAL'S PLACE OF
26 RESIDENCE.
27 "LAW ENFORCEMENT OFFICIAL." ANY OF THE FOLLOWING:
28 (1) A POLICE OFFICER OF A MUNICIPALITY.
29 (2) A DISTRICT ATTORNEY.
30 (3) A MEMBER OF THE PENNSYLVANIA STATE POLICE.
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1 "NEGLECT." THE FAILURE TO PROVIDE FOR ONESELF OR THE FAILURE
2 OF A CARETAKER TO PROVIDE GOODS OR SERVICES ESSENTIAL TO AVOID A
3 CLEAR AND SERIOUS THREAT TO PHYSICAL OR MENTAL HEALTH. NO OLDER
4 ADULT WHO DOES NOT CONSENT TO THE PROVISION OF PROTECTIVE
5 SERVICES SHALL BE FOUND TO BE NEGLECTED SOLELY ON THE GROUNDS OF
6 ENVIRONMENTAL FACTORS WHICH ARE BEYOND THE CONTROL OF THE OLDER
7 ADULT OR THE CARETAKER, SUCH AS INADEQUATE HOUSING, FURNISHINGS,
8 INCOME, CLOTHING OR MEDICAL CARE.
9 "OLDER ADULT." A PERSON WITHIN THE JURISDICTION OF THE
10 COMMONWEALTH WHO IS 60 YEARS OF AGE OR OLDER.
11 "OLDER ADULT IN NEED OF PROTECTIVE SERVICES." AN
12 INCAPACITATED OLDER ADULT WHO IS UNABLE TO PERFORM OR OBTAIN
13 SERVICES THAT ARE NECESSARY TO MAINTAIN PHYSICAL OR MENTAL
14 HEALTH, FOR WHOM THERE IS NO RESPONSIBLE CARETAKER AND WHO IS AT
15 IMMINENT RISK OF DANGER TO HIS PERSON OR PROPERTY.
16 "PROTECTIVE SERVICES." THOSE ACTIVITIES, RESOURCES AND
17 SUPPORTS PROVIDED TO OLDER ADULTS UNDER THIS ACT TO DETECT,
18 PREVENT, REDUCE OR ELIMINATE ABUSE, NEGLECT, EXPLOITATION AND
19 ABANDONMENT.
20 "PROTECTIVE SETTING." A SETTING CHOSEN BY THE AGENCY WHERE
21 SERVICES CAN BE PROVIDED IN THE LEAST RESTRICTIVE ENVIRONMENT TO
22 PROTECT THE PHYSICAL AND MENTAL WELL-BEING OF THE OLDER ADULT.
23 "RECIPIENT." ANY INDIVIDUAL WHO RECEIVES CARE, SERVICES OR
24 TREATMENT IN OR FROM A FACILITY.
25 "Registry." The Nurse Aide and Elder Abuse Registry
26 established in section 13.1 311. <--
27 * * * <--
28 "Serious bodily injury." Injury which creates a substantial
29 risk of death or which causes serious permanent disfigurement or
30 protracted loss or impairment of the function of a body member
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1 or organ.
2 * * *
3 "SECRETARY." THE SECRETARY OF AGING OF THE COMMONWEALTH. <--
4 "SERIOUS BODILY INJURY." AN INJURY WHICH:
5 (1) CAUSES A PERSON SEVERE PAIN;
6 (2) CREATES A SUBSTANTIAL RISK OF DEATH; OR
7 (3) SIGNIFICANTLY IMPAIRS A PERSON'S PHYSICAL
8 FUNCTIONING, EITHER TEMPORARILY OR PERMANENTLY.
9 "SERVICE PLAN." A WRITTEN PLAN DEVELOPED BY THE AGENCY ON
10 THE BASIS OF COMPREHENSIVE ASSESSMENT OF A CLIENT'S NEED WHICH
11 DESCRIBES IDENTIFIED NEEDS, GOALS TO BE ACHIEVED AND SPECIFIC
12 SERVICES TO SUPPORT GOAL ATTAINMENT, WITH REGULAR FOLLOW-UP AND
13 PREDETERMINED REASSESSMENT OF CLIENT PROGRESS. SPECIFIC SERVICES
14 TO SUPPORT GOAL ATTAINMENT MAY INCLUDE, BUT IS NOT LIMITED TO,
15 HOMEMAKER SERVICES, HOME-DELIVERED MEALS, ATTENDANT CARE, OTHER
16 IN-HOME SERVICES, EMERGENCY SHELTER OR FOOD, LEGAL AID SERVICES,
17 TRANSPORTATION AND OTHER SUCH SERVICES. SERVICE PLANS ARE
18 COOPERATIVELY DEVELOPED BY THE AGENCY STAFF, THE CLIENT OR THE
19 CLIENT'S APPOINTED GUARDIAN, AND OTHER FAMILY MEMBERS WHEN
20 APPROPRIATE. THE PLAN SHALL ALSO ADDRESS, WHERE APPLICABLE,
21 SPECIAL NEEDS OF OTHER MEMBERS OF THE HOUSEHOLD UNIT AS THEY MAY
22 AFFECT THE OLDER ADULT'S NEED FOR PROTECTIVE SERVICES.
23 "SEXUAL ABUSE." INTENTIONALLY, KNOWINGLY OR RECKLESSLY
24 CAUSING OR ATTEMPTING TO CAUSE RAPE, INVOLUNTARY DEVIATE SEXUAL
25 INTERCOURSE, SEXUAL ASSAULT, STATUTORY SEXUAL ASSAULT,
26 AGGRAVATED INDECENT ASSAULT, INDECENT ASSAULT OR INCEST.
27 SECTION 3. THE ACT IS AMENDED BY ADDING A CHAPTER HEADING TO
28 READ:
29 CHAPTER 3
30 ADMINISTRATION
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1 Section 2. Section 5 of the act is amended by adding <--
2 subsections to read:
3 SECTION 4. SECTIONS 4, 5, 6, 7, 8, 9, 10, 11, 12 AND 13 OF <--
4 THE ACT ARE AMENDED TO READ:
5 SECTION [4] 301. DUTIES OF DEPARTMENT AND AREA AGENCIES ON
6 AGING.
7 (A) PUBLIC INFORMATION AND INTERDEPARTMENTAL CONSULTATION.--
8 THE DEPARTMENT SHALL CONDUCT AN ONGOING CAMPAIGN DESIGNED TO
9 INFORM AND EDUCATE OLDER ADULTS, PROFESSIONALS AND THE GENERAL
10 PUBLIC ABOUT THE NEED FOR AN AVAILABILITY OF PROTECTIVE SERVICES
11 UNDER THIS [ACT] CHAPTER. THE DEPARTMENT SHALL CONSULT WITH
12 OTHER DEPARTMENTS OF THE COMMONWEALTH ON THE DESIGN AND
13 IMPLEMENTATION OF THE ONGOING PUBLIC AWARENESS CAMPAIGN. THE
14 DEPARTMENT SHALL ALSO CONSIDER THE CONCERNS OF AREA AGENCIES ON
15 AGING AND THE ENTITIES IDENTIFIED BY THEM UNDER SUBSECTION (C).
16 (B) STAFF TRAINING.--THE DEPARTMENT SHALL ESTABLISH MINIMUM
17 STANDARDS OF TRAINING AND EXPERIENCE WHICH PROTECTIVE SERVICES
18 PROVIDERS FUNDED BY THE DEPARTMENT SHALL BE REQUIRED TO FOLLOW
19 IN THE SELECTION AND ASSIGNMENT OF STAFF FOR THE PROVISION OF
20 PROTECTIVE SERVICES.
21 (C) PROTECTIVE SERVICES PLANS.--EACH AREA AGENCY ON AGING
22 SHALL INCLUDE A PROTECTIVE SERVICES PLAN AS PART OF ITS ANNUAL
23 PLAN. THE PLAN SHALL DESCRIBE THE LOCAL IMPLEMENTATION OF THIS
24 [ACT] CHAPTER, INCLUDING THE ORGANIZATION, STAFFING, MODE OF
25 OPERATIONS AND FINANCING OF PROTECTIVE SERVICES, AS WELL AS THE
26 PROVISIONS MADE FOR PURCHASE OF SERVICES, INTERAGENCY RELATIONS,
27 INTERAGENCY AGREEMENTS, SERVICE REFERRAL MECHANISMS AND LOCUS OF
28 RESPONSIBILITY FOR CASES WITH MULTISERVICE AGENCY NEEDS. THE
29 DESCRIPTION OF THE METHODS THAT WILL BE USED BY THE AGENCY, ITS
30 DESIGNEES AND ITS SERVICE PROVIDERS TO ASSURE THE PRIVACY OF
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1 OLDER ADULTS RECEIVING SERVICES AND THE CONFIDENTIALITY OF ALL
2 RECORDS SHALL BE ESTABLISHED BY THE DEPARTMENT. THE DEPARTMENT
3 SHALL ESTABLISH A SCHEDULE FOR THE SUBMISSION AND APPROVAL OF
4 THE PLANS. THE PLAN SHALL INCLUDE A LIST OF ALL ENTITIES,
5 WHETHER PUBLIC OR PRIVATE, THAT HAVE BEEN IDENTIFIED BY THE AREA
6 AGENCY ON AGING AS HAVING SUBSTANTIAL CONTACT WITH POTENTIAL
7 VICTIMS OR PERPETRATORS OF ABUSE, NEGLECT, EXPLOITATION AND
8 ABANDONMENT. THIS LIST SHALL BE SUBMITTED TO THE DEPARTMENT FOR
9 PURPOSES OF THE PUBLIC INFORMATION CAMPAIGN UNDER SUBSECTION
10 (A).
11 Section [5] 302. Reporting; protection from retaliation; <--
12 immunity.
13 * * * <--
14 (a.1) Mandatory reporting.--Any individual who is a
15 caretaker in an institution who has reason to believe an older
16 adult who is a resident of the institution is a victim of abuse
17 or neglect shall immediately make an oral report to the agency
18 which is the local provider of protective services.
19 * * *
20 (e) Penalties for failure to report.--A person required
21 under this section to report a case of suspected abuse or
22 neglect who willfully fails to do so commits a summary offense
23 for the first violation and a misdemeanor of the third degree
24 for a second or subsequent violation.
25 (A) REPORTING.--ANY PERSON HAVING REASONABLE CAUSE TO <--
26 BELIEVE THAT AN OLDER ADULT IS IN NEED OF PROTECTIVE SERVICES
27 MAY REPORT SUCH INFORMATION TO THE AGENCY WHICH IS THE LOCAL
28 PROVIDER OF PROTECTIVE SERVICES. WHERE APPLICABLE, REPORTS SHALL
29 COMPLY WITH THE PROVISIONS OF CHAPTER 7.
30 (B) RECEIVING REPORTS.--THE AGENCY SHALL BE CAPABLE OF
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1 RECEIVING REPORTS OF OLDER ADULTS IN NEED OF PROTECTIVE SERVICES
2 24 HOURS A DAY, SEVEN DAYS A WEEK (INCLUDING HOLIDAYS). THIS
3 CAPABILITY MAY INCLUDE THE USE OF A LOCAL EMERGENCY RESPONSE
4 SYSTEM OR A CRISIS INTERVENTION AGENCY, PROVIDED THAT ACCESS CAN
5 BE MADE TO A PROTECTIVE SERVICES CASEWORKER IN APPROPRIATE
6 EMERGENCY SITUATIONS AS SET FORTH IN REGULATIONS PROMULGATED BY
7 THE DEPARTMENT. ALL REPORTS RECEIVED ORALLY UNDER THIS SECTION
8 SHALL BE REDUCED TO WRITING IMMEDIATELY BY THE PERSON WHO
9 RECEIVES THE REPORT.
10 (C) RETALIATORY ACTION; PENALTY.--ANY PERSON MAKING A REPORT
11 OR COOPERATING WITH THE AGENCY, INCLUDING PROVIDING TESTIMONY IN
12 ANY ADMINISTRATIVE OR JUDICIAL PROCEEDING, AND THE VICTIM SHALL
13 BE FREE FROM ANY DISCRIMINATORY, RETALIATORY OR DISCIPLINARY
14 ACTION BY AN EMPLOYER OR BY ANY OTHER PERSON OR ENTITY. ANY
15 PERSON WHO VIOLATES THIS SUBSECTION IS SUBJECT TO A CIVIL
16 LAWSUIT BY THE REPORTER OR THE VICTIM WHEREIN THE REPORTER OR
17 VICTIM SHALL RECOVER TREBLE COMPENSATORY AND PUNITIVE DAMAGES OR
18 $5,000, WHICHEVER IS GREATER.
19 (D) IMMUNITY.--ANY PERSON PARTICIPATING IN THE MAKING OF A
20 REPORT OR WHO PROVIDES TESTIMONY IN ANY ADMINISTRATIVE OR
21 JUDICIAL PROCEEDING ARISING OUT OF A REPORT SHALL BE IMMUNE FROM
22 ANY CIVIL OR CRIMINAL LIABILITY ON ACCOUNT OF THE REPORT OR
23 TESTIMONY UNLESS THE PERSON ACTED IN BAD FAITH OR WITH MALICIOUS
24 PURPOSE. THIS IMMUNITY SHALL NOT EXTEND TO LIABILITY FOR ACTS OF
25 ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT, EVEN IF SUCH ACTS
26 ARE THE SUBJECT OF THE REPORT OR TESTIMONY.
27 Section 3. Sections 6 and 9 of the act are amended to read: <--
28 Section [6] 303. Investigations of reports of need for <--
29 protective services.
30 (a) Investigation.--It shall be the agency's responsibility
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1 to provide for an investigation of each report made under
2 section [5.] 302. Upon the receipt of a report of a suspicious <--
3 death or suspected sexual abuse or serious bodily injury, the
4 agency shall immediately orally notify law enforcement officials
5 of the jurisdiction where the alleged abuse or neglect occurred.
6 The agency shall also report within 72 hours all other cases of
7 abuse or neglect of older persons in institutions to local law
8 enforcement officials when the agency has reason to believe the
9 report will be substantiated. The investigation shall be
10 initiated within 72 hours after the receipt of the report and
11 shall be carried out under regulations issued by the department.
12 These regulations shall provide for the methods of conducting
13 investigations under this section and shall assure that steps
14 are taken to avoid any conflict of interest between the
15 investigator and service delivery functions. REPORTS AND <--
16 INVESTIGATIONS UNDER THIS SECTION SHALL COMPLY WITH CHAPTER 7,
17 WHERE APPLICABLE.
18 (b) Investigation involving licensed facilities.--[Any
19 report concerning older adults residing in a State-licensed
20 facility shall be investigated under procedures developed by the
21 department in consultation with the State agency licensing such
22 facility.] If a report concerns a resident of a State-licensed
23 facility, the agency shall notify the State agency licensing the
24 facility of the initiation of the investigation. If the report
25 concerns a resident of a State-licensed facility for whom the
26 area agency on aging provides ombudsman services, the ombudsman
27 of the area agency on aging must be notified.
28 (c) Unsubstantiated reports.--If, after investigation by the
29 agency, the report is unsubstantiated, the case shall be closed
30 and all information identifying the reporter and the alleged
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1 abuser shall be immediately deleted from all records. For
2 purposes of substantiating a pattern of abuse, neglect,
3 exploitation or abandonment, the name of the alleged victim and
4 any information describing the alleged act of abuse, neglect,
5 exploitation or abandonment may be maintained for a period of
6 six months under procedures established by the department.
7 (d) Substantiated reports.--If the report is substantiated
8 by the agency, or if the client assessment is necessary in order
9 to determine whether or not the report is substantiated, the
10 agency shall provide for a timely client assessment if the older
11 adult consents to an assessment. Upon completion of the
12 assessment, written findings shall be prepared which shall
13 include recommended action. This service plan shall provide for
14 the least restrictive alternative, encouraging client self-
15 determination and continuity of care. The service plan shall be
16 in writing and shall include a recommended course of action,
17 which may include the pursuit of civil or criminal remedies. If
18 an older adult found to be in need of protective services does
19 not consent to a client assessment or the development of a
20 service plan, the agency may apply to the case the provisions of
21 section [10.] 307. <--
22 (e) Plan of supervision.--Upon notification that an
23 individual who is a caretaker in an institution is alleged to
24 have committed abuse or neglect under this act CHAPTER, the <--
25 institution shall immediately implement a plan of supervision or
26 alternative arrangement, subject to the agency's approval, for
27 the individual under investigation to insure the safety of the
28 residents of the institution. This plan shall remain in effect
29 until a determination is made by the agency under this section.
30 (f) Duty of State licensing agency where report is
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1 substantiated.--Upon the receipt of a substantiated report
2 identifying an employee, supervisor, director, independent
3 contractor or operator as a perpetrator, the State licensing
4 agency shall order the licensee to immediately prohibit the
5 perpetrator from having access to residents of the facility.
6 Where the perpetrator is a director, operator or supervisor, the
7 person shall be subject to restrictions deemed appropriate by
8 the licensing agency which shall assure the safety of residents
9 of the institution.
10 SECTION [7] 304. PROVISION OF SERVICES; ACCESS TO RECORDS AND <--
11 PERSONS.
12 (A) AVAILABILITY OF PROTECTIVE SERVICES.--THE AGENCY SHALL
13 OFFER PROTECTIVE SERVICES UNDER ANY OF THE FOLLOWING CONDITIONS:
14 (1) AN OLDER ADULT REQUESTS SUCH SERVICES.
15 (2) ANOTHER INTERESTED PERSON REQUESTS SUCH SERVICES ON
16 BEHALF OF AN OLDER ADULT.
17 (3) IF, AFTER INVESTIGATION OF A REPORT, THE AGENCY
18 DETERMINES THE OLDER ADULT IS IN NEED OF SUCH SERVICES.
19 (B) CONSENT BY REQUEST.--EXCEPT AS PROVIDED IN SECTION [10]
20 307, AN INDIVIDUAL SHALL RECEIVE PROTECTIVE SERVICES
21 VOLUNTARILY. IN NO EVENT MAY PROTECTIVE SERVICES BE PROVIDED
22 UNDER THIS [ACT] CHAPTER TO ANY PERSON WHO DOES NOT CONSENT TO
23 SUCH SERVICES OR WHO, HAVING CONSENTED, WITHDRAWS SUCH CONSENT,
24 UNLESS SUCH SERVICES ARE ORDERED BY A COURT, REQUESTED BY A
25 GUARDIAN OF THE OLDER ADULT OR PROVIDED UNDER SECTION [10] 307.
26 NOTHING IN THIS [ACT] CHAPTER SHALL PREVENT THE AGENCY FROM
27 PETITIONING FOR THE APPOINTMENT OF A GUARDIAN PURSUANT TO TITLE
28 20 OF THE PENNSYLVANIA CONSOLIDATED STATUTES (RELATING TO
29 DECEDENTS, ESTATES AND FIDUCIARIES).
30 (C) INTERFERENCE WITH SERVICES.--IF ANY PERSON INTERFERES
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1 WITH THE PROVISION OF SERVICES OR INTERFERES WITH THE RIGHT OF
2 AN OLDER ADULT TO CONSENT TO PROVISION OF SERVICES, THE AGENCY
3 MAY PETITION THE COURT FOR AN ORDER ENJOINING SUCH INTERFERENCE.
4 (D) ACCESS TO RECORDS.--THE AGENCY SHALL HAVE ACCESS TO ALL
5 RECORDS RELEVANT TO:
6 (1) INVESTIGATIONS OF REPORTS UNDER SECTION [6] 303.
7 (2) ASSESSMENT OF CLIENT NEED.
8 (3) SERVICE PLANNING WHEN AN OLDER ADULT'S NEED FOR
9 PROTECTIVE SERVICES HAS BEEN OR IS BEING ESTABLISHED.
10 (4) THE DELIVERY OF SERVICES ARRANGED FOR UNDER THE
11 SERVICE PLAN DEVELOPED BY THE AGENCY TO RESPOND TO AN OLDER
12 ADULT'S ASSESSED NEED FOR SPECIFIC SERVICES.
13 (E) ACCESS TO PERSONS.--THE AGENCY SHALL HAVE ACCESS TO
14 OLDER PERSONS WHO HAVE BEEN REPORTED TO BE IN NEED OF PROTECTIVE
15 SERVICES IN ORDER TO:
16 (1) INVESTIGATE REPORTS UNDER SECTION [6] 303 AND
17 CHAPTER 7.
18 (2) ASSESS CLIENT NEED AND DEVELOP A SERVICE PLAN FOR
19 ADDRESSING NEEDS DETERMINED.
20 (3) PROVIDE FOR THE DELIVERY OF SERVICES BY THE AGENCY
21 OR OTHER SERVICE PROVIDER ARRANGED FOR UNDER THE SERVICE PLAN
22 DEVELOPED BY THE AGENCY.
23 (F) DENIAL OF ACCESS TO PERSONS.--IF THE AGENCY IS DENIED
24 ACCESS TO AN OLDER ADULT REPORTED TO BE IN NEED OF PROTECTIVE
25 SERVICES AND ACCESS IS NECESSARY TO COMPLETE THE INVESTIGATION
26 OR THE CLIENT ASSESSMENT AND SERVICE PLAN, OR THE DELIVERY OF
27 NEEDED SERVICES IN ORDER TO PREVENT FURTHER ABUSE, NEGLECT,
28 EXPLOITATION OR ABANDONMENT OF THE OLDER ADULT REPORTED TO BE IN
29 NEED OF PROTECTIVE SERVICES, THE AGENCY MAY PETITION THE COURT
30 FOR AN ORDER TO REQUIRE THE APPROPRIATE ACCESS WHEN EITHER OF
19950H0305B4085 - 14 -
1 THE FOLLOWING CONDITIONS APPLY:
2 (1) THE CARETAKER OR A THIRD PARTY HAS INTERFERED WITH
3 THE COMPLETION OF THE INVESTIGATION OR THE CLIENT ASSESSMENT
4 AND SERVICE PLAN OR THE DELIVERY OF SERVICES.
5 (2) THE AGENCY CAN DEMONSTRATE THAT THE OLDER ADULT
6 REPORTED TO BE IN NEED OF PROTECTIVE SERVICES IS DENYING
7 ACCESS BECAUSE OF COERCION, EXTORTION OR JUSTIFIABLE FEAR OF
8 FUTURE ABUSE, NEGLECT, OR EXPLOITATION OR ABANDONMENT.
9 (G) ACCESS BY CONSENT.--THE AGENCY'S ACCESS TO CONFIDENTIAL
10 RECORDS HELD BY OTHER AGENCIES OR INDIVIDUALS AND THE AGENCY'S
11 ACCESS TO AN OLDER ADULT REPORTED TO BE IN NEED OF PROTECTIVE
12 SERVICES SHALL REQUIRE THE CONSENT OF THE OLDER ADULT OR A
13 COURT-APPOINTED GUARDIAN EXCEPT AS PROVIDED FOR UNDER THIS
14 SECTION OR SECTION [10] 307.
15 (H) DENIAL OF ACCESS TO RECORDS.--IF THE AGENCY IS DENIED
16 ACCESS TO RECORDS NECESSARY FOR THE COMPLETION OF A PROPER
17 INVESTIGATION OF A REPORT OR A CLIENT ASSESSMENT AND SERVICE
18 PLAN, OR THE DELIVERY OF NEEDED SERVICES IN ORDER TO PREVENT
19 FURTHER ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT OF THE OLDER
20 ADULT REPORTED TO BE IN NEED OF PROTECTIVE SERVICES, THE AGENCY
21 MAY PETITION THE COURT OF COMMON PLEAS FOR AN ORDER REQUIRING
22 THE APPROPRIATE ACCESS WHEN EITHER OF THE FOLLOWING CONDITIONS
23 APPLY:
24 (1) THE OLDER ADULT HAS PROVIDED WRITTEN CONSENT FOR ANY
25 CONFIDENTIAL RECORDS TO BE DISCLOSED AND THE KEEPER OF THE
26 RECORDS DENIES ACCESS.
27 (2) THE AGENCY CAN DEMONSTRATE THAT THE OLDER ADULT IS
28 DENYING ACCESS TO RECORDS BECAUSE OF INCOMPETENCE, COERCION,
29 EXTORTION OR JUSTIFIABLE FEAR OF FUTURE ABUSE, NEGLECT,
30 EXPLOITATION OR ABANDONMENT.
19950H0305B4085 - 15 -
1 SECTION [8] 305. IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY.
2 IN THE ABSENCE OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, THE
3 AGENCY, THE DIRECTOR, EMPLOYEES OF THE AGENCY, PROTECTIVE
4 SERVICES WORKERS OR EMPLOYEES OF THE DEPARTMENT SHALL NOT BE
5 CIVILLY OR CRIMINALLY LIABLE FOR ANY DECISION OR ACTION OR
6 RESULTING CONSEQUENCE OF DECISIONS OR ACTION WHEN ACTING UNDER
7 AND ACCORDING TO THE PROVISIONS OF THIS [ACT] CHAPTER.
8 Section [9] 306. Confidentiality of records. <--
9 (a) General rule.--Information contained in reports, records
10 of investigation, client assessment and service plans shall be
11 considered confidential and shall be maintained under
12 regulations promulgated by the department to safeguard
13 confidentiality. Except as provided below, this information
14 shall not be disclosed to anyone outside the agency other than
15 to a court of competent jurisdiction or pursuant to a court
16 order.
17 (b) Limited access to the agency's protective services
18 records.--
19 (1) [In the event that an investigation by the agency
20 results in a report of criminal conduct, law] Law enforcement
21 officials shall have access to all relevant records
22 maintained by the agency or the department for the purposes
23 of investigating cases referred to under section 6(a) 303(A). <--
24 (2) In arranging specific services to carry out service
25 plans, the agency may disclose to appropriate service
26 providers such information as may be necessary to initiate
27 the delivery of services.
28 (3) A subject of a report made under section [5] 302 may <--
29 receive, upon written request, all information contained in
30 the report except that prohibited from being disclosed by
19950H0305B4085 - 16 -
1 paragraph (4).
2 (4) The release of information that would identify the
3 person who made a report of suspected abuse, neglect,
4 exploitation or abandonment or person who cooperated in a
5 subsequent investigation, is hereby prohibited unless the
6 secretary can determine that such a release will not be
7 detrimental to the safety of such person.
8 (5) When the department is involved in the hearing of an
9 appeal by a subject of a report made under section [5] 302, <--
10 the appropriate department staff shall have access to all
11 information in the report record relevant to the appeal.
12 (6) For the purposes of monitoring agency performance,
13 appropriate staff of the department may access agency
14 protective services records.
15 (7) Appropriate staff of the department may access
16 agency protective service records for the purpose of placing
17 information in the registry regarding institutional abuse of
18 older persons under section 13.1 311. <--
19 SECTION [10] 307. INVOLUNTARY INTERVENTION BY EMERGENCY COURT <--
20 ORDER.
21 (A) EMERGENCY PETITION.--WHERE THERE WAS CLEAR AND
22 CONVINCING EVIDENCE THAT IF PROTECTIVE SERVICES ARE NOT
23 PROVIDED, THE PERSON TO BE PROTECTED IS AT IMMINENT RISK OF
24 DEATH OR SERIOUS PHYSICAL HARM, THE AGENCY MAY PETITION THE
25 COURT FOR AN EMERGENCY ORDER TO PROVIDE THE NECESSARY SERVICES.
26 THE COURTS OF COMMON PLEAS OF EACH JUDICIAL DISTRICT SHALL
27 ENSURE THAT A JUDGE OR DISTRICT JUSTICE IS AVAILABLE ON A 24-
28 HOUR-A-DAY, 365-DAY-A-YEAR BASIS TO ACCEPT AND DECIDE ON
29 PETITIONS FOR AN EMERGENCY COURT ORDER UNDER THIS SECTION
30 WHENEVER THE AGENCY DETERMINES THAT A DELAY UNTIL NORMAL COURT
19950H0305B4085 - 17 -
1 HOURS WOULD SIGNIFICANTLY INCREASE THE DANGER THE OLDER ADULT
2 FACES.
3 (B) LIMITED ORDER.--THE COURT, AFTER FINDING CLEAR AND
4 CONVINCING EVIDENCE OF THE NEED FOR AN EMERGENCY ORDER, SHALL
5 ORDER ONLY SUCH SERVICES AS ARE NECESSARY TO REMOVE THE
6 CONDITIONS CREATING THE ESTABLISHED NEED.
7 (C) RIGHT TO COUNSEL.--IN ORDER TO PROTECT THE RIGHTS OF AN
8 OLDER ADULT FOR WHOM PROTECTIVE SERVICES ARE BEING ORDERED, AN
9 EMERGENCY COURT ORDER UNDER THIS SECTION SHALL PROVIDE THAT THE
10 OLDER ADULT HAS THE RIGHT TO LEGAL COUNSEL. IF THE OLDER ADULT
11 IS UNABLE TO PROVIDE FOR COUNSEL, SUCH COUNSEL SHALL BE
12 APPOINTED BY THE COURT.
13 (D) FORCIBLE ENTRY.--WHERE IT IS NECESSARY TO FORCIBLY ENTER
14 PREMISES AFTER OBTAINING A COURT ORDER, A PEACE OFFICER MAY DO
15 SO, ACCOMPANIED BY A REPRESENTATIVE OF THE AGENCY.
16 (E) HEALTH AND SAFETY REQUIREMENTS.--THE AGENCY SHALL TAKE
17 REASONABLE STEPS TO ASSURE THAT WHILE THE PERSON IS RECEIVING
18 SERVICES UNDER AN EMERGENCY COURT ORDER, THE HEALTH AND SAFETY
19 NEEDS OF ANY OF THE PERSON'S DEPENDENTS ARE MET AND THAT
20 PERSONAL PROPERTY AND THE DWELLING THE PERSON OCCUPIES ARE
21 SECURE.
22 (F) EXCLUSION OF REMEDY.--NOTHING IN THIS [ACT] CHAPTER
23 SHALL BE INTERPRETED TO DENY ANY OLDER ADULT ACCESS TO THE
24 EMERGENCY MEDICAL SERVICES OR POLICE PROTECTION THAT WOULD BE
25 PROVIDED TO ANYONE, REGARDLESS OF AGE, IN SIMILAR CIRCUMSTANCES.
26 SECTION [11] 308. INDIVIDUAL RIGHTS.
27 (A) RIGHTS OF PROTECTIVE SERVICES CLIENTS.--THE AGENCY SHALL
28 OBSERVE THE FOLLOWING MINIMUM REQUIREMENTS TO SAFEGUARD THE
29 RIGHTS OF AN OLDER ADULT WHO IS REPORTED TO BE IN NEED OF
30 PROTECTIVE SERVICES:
19950H0305B4085 - 18 -
1 (1) THE AGENCY SHALL DISCREETLY NOTIFY THE OLDER PERSON
2 DURING THE INVESTIGATION THAT A REPORT HAS BEEN MADE AND
3 SHALL PROVIDE THE PERSON WITH A BRIEF SUMMARY OF THE NATURE
4 OF THE REPORT.
5 (2) AS PROVIDED UNDER SECTION [9(B)(3)] 306(B)(3), THE
6 OLDER ADULT MAY REQUEST, AND THE AGENCY SHALL PROVIDE,
7 ADDITIONAL INFORMATION CONTAINED IN THE REPORT.
8 (3) ANY DENIAL OF SERVICES BY THE DEPARTMENT OR AN
9 AUTHORIZED AGENCY UNDER THIS [ACT] CHAPTER MAY BE APPEALED
10 ACCORDING TO THE PROVISIONS OF THE RULES AND REGULATIONS
11 ISSUED BY THE DEPARTMENT UNDER ARTICLE XXII-A OF THE ACT OF
12 APRIL 9, 1929 (P.L.177, NO.175), KNOWN AS THE ADMINISTRATIVE
13 CODE OF 1929.
14 (4) NOTHING IN THIS ACT SHALL LIMIT THE RIGHT OF ANY
15 OLDER PERSON TO FILE A PETITION PURSUANT TO THE ACT OF
16 OCTOBER 7, 1976 (P.L.1090, NO.218), KNOWN AS THE PROTECTION
17 FROM ABUSE ACT.
18 (B) RIGHTS OF ALLEGED ABUSERS.--AN INDIVIDUAL WHO IS ALLEGED
19 IN A PROTECTIVE SERVICES REPORT TO BE A PERPETRATOR OF THE
20 ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT OF AN OLDER ADULT
21 SHALL BE ENTITLED TO THE FOLLOWING IF THE REPORT IS
22 SUBSTANTIATED BY THE AGENCY:
23 (1) SUCH AN INDIVIDUAL SHALL BE NOTIFIED BY THE AGENCY
24 AT THE CONCLUSION OF THE INVESTIGATION OF THE REPORT THAT
25 ALLEGATIONS HAVE BEEN MADE AND SHALL BE GIVEN A BRIEF SUMMARY
26 OF THE ALLEGATIONS.
27 (2) AS PROVIDED UNDER SECTION [9(B)(3)] 306(B)(3), THE
28 ALLEGED PERPETRATOR MAY REQUEST, AND THE AGENCY SHALL
29 PROVIDE, ADDITIONAL INFORMATION CONTAINED IN THE REPORT.
30 (3) AN ALLEGED PERPETRATOR IS ENTITLED TO FILE AN APPEAL
19950H0305B4085 - 19 -
1 WITH THE DEPARTMENT UNDER 1 PA. CODE PART II (RELATING TO
2 GENERAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE) TO
3 CHALLENGE THE AGENCY'S FINDING RESULTING FROM THE
4 INVESTIGATION OF A REPORT MADE UNDER SECTION [6] 303.
5 SECTION [12] 309. FINANCIAL OBLIGATIONS; LIABILITIES AND
6 PAYMENTS.
7 ALL INDIVIDUALS RECEIVING SERVICES AND ALL AGENCIES PROVIDING
8 SERVICES UNDER THIS [ACT] CHAPTER SHALL COMPLY WITH THE
9 FOLLOWING PROVISIONS REGARDING LIABILITY FOR THE PAYMENT OF
10 SERVICES:
11 (1) FUNDING TO PROVIDE OR MAKE AVAILABLE PROTECTIVE
12 SERVICES UNDER THIS [ACT] CHAPTER SHALL NOT SUPPLANT ANY
13 PUBLIC AND PRIVATE ENTITLEMENTS OR RESOURCES FOR WHICH
14 PERSONS RECEIVING PROTECTIVE SERVICES UNDER THIS [ACT]
15 CHAPTER ARE OR MAY BE ELIGIBLE, AND SHALL NOT BE AVAILABLE
16 UNTIL SUCH PERSONS HAVE EXHAUSTED THEIR ELIGIBILITY AND
17 RECEIPT OF BENEFITS UNDER SAID PUBLIC AND PRIVATE
18 ENTITLEMENTS OR RESOURCES.
19 (2) FUNDING AVAILABLE TO LOCAL PROTECTIVE SERVICES
20 AGENCIES UNDER THIS [ACT] CHAPTER MAY BE USED TO COVER THE
21 COSTS OF ACTIVITIES INCLUDING, BUT NOT LIMITED TO, THE
22 FOLLOWING:
23 (I) ADMINISTERING PROTECTIVE SERVICES PLANS REQUIRED
24 UNDER SECTION [4(C)] 301(C).
25 (II) RECEIVING AND MAINTAINING RECORDS OF REPORTS OF
26 ABUSE UNDER SECTION [5] 302.
27 (III) CONDUCTING INVESTIGATIONS OF REPORTED ABUSE
28 UNDER SECTION [6] 303.
29 (IV) CARRYING OUT CLIENT ASSESSMENTS AND DEVELOPING
30 SERVICE PLANS UNDER SECTION [6] 303.
19950H0305B4085 - 20 -
1 (V) PETITIONING THE COURT UNDER SECTIONS [7] 304 AND
2 [10] 307.
3 (VI) PROVIDING EMERGENCY INVOLUNTARY INTERVENTION
4 UNDER SECTION [10] 307.
5 (VII) ARRANGING FOR AVAILABLE SERVICES NEEDED TO
6 CARRY OUT SERVICE PLANS, WHICH MAY INCLUDE, AS
7 APPROPRIATE, ARRANGING FOR SERVICES FOR OTHER HOUSEHOLD
8 MEMBERS IN ORDER TO REDUCE, CORRECT OR ELIMINATE ABUSE,
9 NEGLECT, EXPLOITATION OR ABANDONMENT OF AN OLDER ADULT.
10 (VIII) PURCHASING, ON A TEMPORARY BASIS, SERVICES
11 DETERMINED BY A SERVICE PLAN TO BE NECESSARY TO REDUCE,
12 CORRECT OR ELIMINATE ABUSE, NEGLECT, EXPLOITATION OR
13 ABANDONMENT OF AN OLDER ADULT WHEN SUCH SERVICES ARE NOT
14 AVAILABLE WITHIN THE EXISTING RESOURCES OF THE AGENCY OR
15 OTHER APPROPRIATE PROVIDER. PURCHASE OF SERVICES UNDER
16 THIS PROVISION IS LIMITED TO A 30-DAY PERIOD WHICH MAY BE
17 RENEWED WITH ADEQUATE JUSTIFICATION UNDER REGULATIONS
18 PROMULGATED BY THE DEPARTMENT.
19 (3) THE OBLIGATION OF THE COMMONWEALTH AND THE COUNTIES
20 TO PROVIDE FUNDS TO THE DEPARTMENT OR ANY AGENCY FOR SERVICES
21 PROVIDED PURSUANT TO THIS [ACT] CHAPTER SHALL BE ENTIRELY
22 DISCHARGED BY THE APPROPRIATIONS MADE TO THE DEPARTMENT OR AN
23 AGENCY. PROVIDED THAT THE AGENCY HAS MET ITS RESPONSIBILITY
24 UNDER THE LAW, NO ACTION AT LAW OR EQUITY SHALL BE INSTITUTED
25 IN ANY COURT TO REQUIRE THE DEPARTMENT, ANY AGENCY, COUNTY OR
26 THE COMMONWEALTH TO PROVIDE BENEFITS OR SERVICES UNDER THIS
27 [ACT] CHAPTER FOR WHICH APPROPRIATIONS FROM THE COMMONWEALTH
28 OR COUNTIES ARE NOT AVAILABLE.
29 (4) PROTECTIVE SERVICES CLIENTS RECEIVING THE SAME
30 SERVICES PROVIDED TO OTHERS UNDER AN AGENCY SERVICE PLAN
19950H0305B4085 - 21 -
1 SHALL NOT BE REQUIRED TO PAY A FEE FOR ANY SERVICES NOT
2 SUBJECT TO COST SHARING FOR OTHER OLDER ADULTS.
3 SECTION [13] 310. REGULATIONS; ENFORCEMENT.
4 (A) PROMULGATION OF REGULATIONS.--THE DEPARTMENT SHALL
5 PROMULGATE THE RULES AND REGULATIONS TO CARRY OUT THIS [ACT]
6 CHAPTER AND SHALL BE RESPONSIBLE FOR PRESENTING TO THE GENERAL
7 ASSEMBLY ANNUALLY A REPORT ON THE PROGRAM AND SERVICES
8 PERFORMED.
9 (B) ENFORCEMENT.--THIS [ACT] CHAPTER SHALL BE ENFORCED ONLY
10 AFTER PROMULGATION OF REGULATIONS BY THE DEPARTMENT, WHICH SHALL
11 OCCUR NO LATER THAN 12 MONTHS FOLLOWING PASSAGE OF THIS [ACT]
12 CHAPTER, EXCEPT THAT SECTION [4] 301 SHALL APPLY WHEN THE AREA
13 AGENCY ON AGING CERTIFIES TO THE DEPARTMENT THAT IT IS PREPARED
14 TO FULFILL ITS RESPONSIBILITIES. THE CERTIFICATION SHALL BE MADE
15 WITHIN 90 DAYS FOLLOWING PROMULGATION OF REGULATIONS.
16 Section 4 5. The act is amended by adding a section to read: <--
17 Section 13.1 311. Nurse Aide and Elder Abuse Registry. <--
18 (a) Establishment.--The Department of Aging, the Department
19 of Health and the Department of Public Welfare shall establish a
20 cooperative arrangement whereby persons found to be
21 substantiated perpetrators of abuse or neglect of older persons
22 in institutions shall be listed on the Department of Health's
23 Nurse Aide Registry, as established in accordance with the
24 Omnibus Budget Reconciliation Act of 1987 (Public Law 100-203,
25 101 Stat. 1330). The Nurse Aide Registry shall hereafter be
26 known as the Nurse Aide and Elder Abuse Registry.
27 (b) Information in registry.--In addition to the information
28 already required to be maintained within the Nurse Aide
29 Registry, in accordance with regulations promulgated pursuant to
30 the Omnibus Budget Reconciliation Act of 1987, the registry
19950H0305B4085 - 22 -
1 shall include and be limited to the following information:
2 (1) The name, Social Security number, age, sex and
3 address of the perpetrator.
4 (2) The institution or institutions where the
5 perpetrator committed the abuse or neglect.
6 (3) A description of the abuse or neglect committed by
7 the perpetrator including the date or dates of the incidents.
8 (c) Expungement.--The Department of Health shall immediately
9 expunge information in the registry pertaining to any
10 perpetrator where the finding of the agency has been reversed
11 upon appeal under 6 Pa. Code § 15.82(3) (relating to rights of
12 alleged abusers).
13 (d) Information submitted by prospective employees.--
14 Administrators of institutions which assume the responsibility
15 for the provision of care needed to maintain the physical or
16 mental health of an older adult shall require prospective
17 employees to submit with their applications for employment a
18 certification from the Department of Health as to whether the
19 applicant is named in the registry as a perpetrator. The
20 certificate must be obtained within the preceding one-year
21 period.
22 (e) Grounds for denying employment.--In no case shall an
23 administrator hire an applicant where the Department of Health
24 has verified the applicant is named in the registry as a
25 perpetrator.
26 (f) Regulations.--The Department of Aging, the Department of
27 Health and the Department of Public Welfare shall promulgate the
28 regulations necessary to carry out this section which shall
29 include a uniform procedure for agencies to immediately transmit
30 to the registry records of substantiated cases of abuse or
19950H0305B4085 - 23 -
1 neglect of older persons in institutions.
2 SECTION 6. SECTION 14 OF THE ACT IS AMENDED TO READ: <--
3 SECTION [14] 312. FUNDS FOR PAYMENT OF ADMINISTRATION OF [ACT]
4 CHAPTER.
5 FUNDS NECESSARY TO ADMINISTER THIS [ACT] CHAPTER SHALL BE
6 PROVIDED BY ANNUAL APPROPRIATION BY THE GENERAL ASSEMBLY.
7 SECTION 7. THE ACT IS AMENDED BY ADDING A CHAPTER TO READ:
8 CHAPTER 7
9 REPORTING SUSPECTED ABUSE BY EMPLOYEES
10 SECTION 701. REPORTING BY EMPLOYEES.
11 (A) MANDATORY REPORTING TO AGENCY.--
12 (1) EXCEPT AS PROVIDED IN PARAGRAPH (2):
13 (I) AN EMPLOYEE WHO HAS REASONABLE CAUSE TO SUSPECT
14 THAT A RECIPIENT IS A VICTIM OF ABUSE SHALL IMMEDIATELY
15 MAKE AN ORAL REPORT TO THE ADMINISTRATOR AND THE AGENCY.
16 (II) WITHIN 48 HOURS OF MAKING THE ORAL REPORT, THE
17 EMPLOYEE SHALL MAKE A WRITTEN REPORT TO THE
18 ADMINISTRATOR. THE ADMINISTRATOR SHALL IMMEDIATELY
19 FORWARD THE REPORT TO THE AGENCY.
20 (2) IF THE INDIVIDUAL SUSPECTED OF THE ABUSE IS THE
21 ADMINISTRATOR, THE REPORTS UNDER THIS SUBSECTION SHALL BE
22 MADE TO THE AGENCY.
23 (B) MANDATORY REPORTS TO LAW ENFORCEMENT OFFICIALS.--
24 (1) EXCEPT AS PROVIDED IN PARAGRAPH (2):
25 (I) AN EMPLOYEE WHO HAS REASONABLE CAUSE TO SUSPECT
26 THAT A RECIPIENT IS THE VICTIM OF SEXUAL ABUSE OR SERIOUS
27 BODILY INJURY OR THAT A DEATH IS SUSPICIOUS SHALL
28 IMMEDIATELY CONTACT THE ADMINISTRATOR.
29 (II) THE ADMINISTRATOR AND THE EMPLOYEE SHALL
30 IMMEDIATELY MAKE AN ORAL REPORT TO APPROPRIATE LAW
19950H0305B4085 - 24 -
1 ENFORCEMENT OFFICIALS OF THE SUSPICION OF SEXUAL ABUSE OR
2 SERIOUS BODILY INJURY OR THE SUSPICIOUS DEATH.
3 (III) WITHIN 48 HOURS OF MAKING THE ORAL REPORT, THE
4 ADMINISTRATOR AND THE EMPLOYEE SHALL MAKE A WRITTEN
5 REPORT TO APPROPRIATE LAW ENFORCEMENT OFFICIALS.
6 (2) IF THE INDIVIDUAL SUSPECTED OF THE ABUSE IS THE
7 ADMINISTRATOR, PARAGRAPH (1)(I) DOES NOT APPLY; AND THE
8 REPORTS UNDER SUBPARAGRAPH (1)(II) AND (III) SHALL BE MADE
9 DIRECTLY TO APPROPRIATE LAW ENFORCEMENT OFFICIALS.
10 (C) CONTENTS OF REPORT.--A WRITTEN REPORT UNDER THIS SECTION
11 SHALL BE IN A MANNER AND ON FORMS PRESCRIBED BY THE DEPARTMENT.
12 THE REPORT SHALL INCLUDE, AT A MINIMUM, THE FOLLOWING
13 INFORMATION:
14 (1) NAME, AGE AND ADDRESS OF THE RECIPIENT.
15 (2) NAME AND ADDRESS OF THE RECIPIENT'S GUARDIAN OR NEXT
16 OF KIN.
17 (3) NAME AND ADDRESS OF THE FACILITY.
18 (4) NATURE OF THE ALLEGED OFFENSE.
19 (5) ANY SPECIFIC COMMENTS OR OBSERVATIONS THAT ARE
20 DIRECTLY RELATED TO THE ALLEGED INCIDENT AND THE INDIVIDUAL
21 INVOLVED.
22 SECTION 702. REPORTS TO DEPARTMENT AND CORONER.
23 (A) DEPARTMENT.--
24 (1) WITHIN 48 HOURS OF RECEIPT OF A WRITTEN REPORT UNDER
25 SECTION 701(A), THE AGENCY SHALL TRANSMIT A WRITTEN REPORT TO
26 THE DEPARTMENT. SUPPLEMENTAL REPORTS SHALL BE TRANSMITTED AS
27 THEY ARE OBTAINED BY THE AGENCY.
28 (2) A REPORT UNDER THIS SUBSECTION SHALL BE MADE TO THE
29 AGENCY AND THE DEPARTMENT IN A MANNER AND ON FORMS PRESCRIBED
30 BY THE DEPARTMENT. THE REPORT SHALL INCLUDE, AT A MINIMUM,
19950H0305B4085 - 25 -
1 THE FOLLOWING INFORMATION:
2 (I) THE NAME AND ADDRESS OF THE ALLEGED VICTIM.
3 (II) WHERE THE SUSPECTED ABUSE OCCURRED.
4 (III) THE AGE AND SEX OF THE SUBJECTS OF THE REPORT.
5 (IV) THE NATURE AND EXTENT OF THE SUSPECTED ABUSE,
6 INCLUDING ANY EVIDENCE OF PRIOR ABUSE.
7 (V) THE NAME AND RELATIONSHIP OF THE INDIVIDUAL
8 RESPONSIBLE FOR CAUSING THE ALLEGED ABUSE, IF KNOWN, AND
9 ANY EVIDENCE OF PRIOR ABUSE BY THAT INDIVIDUAL.
10 (VI) THE SOURCE OF THE REPORT.
11 (VII) THE INDIVIDUAL MAKING THE REPORT AND WHERE
12 THAT INDIVIDUAL CAN BE REACHED.
13 (VIII) THE ACTIONS TAKEN BY THE REPORTING SOURCE,
14 INCLUDING TAKING OF PHOTOGRAPHS AND X-RAYS, REMOVAL OF
15 RECIPIENT AND NOTIFICATION UNDER SUBSECTION (B).
16 (IX) ANY OTHER INFORMATION WHICH THE DEPARTMENT MAY
17 REQUIRE BY REGULATION.
18 (B) CORONER.--FOR A REPORT UNDER SECTION 701(A) WHICH
19 CONCERNS THE DEATH OF A RECIPIENT, IF THERE IS REASONABLE CAUSE
20 TO SUSPECT THAT THE RECIPIENT DIED AS A RESULT OF ABUSE, THE
21 AGENCY SHALL GIVE TELEPHONE NOTICE AND FORWARD A COPY OF THE
22 REPORT TO THE APPROPRIATE CORONER WITHIN 24 HOURS.
23 SECTION 703. INVESTIGATION.
24 (A) LAW ENFORCEMENT OFFICIALS.--UPON RECEIPT OF A REPORT
25 UNDER SECTION 701(B), LAW ENFORCEMENT OFFICIALS SHALL CONDUCT AN
26 INVESTIGATION TO DETERMINE WHAT CRIMINAL CHARGES, IF ANY, WILL
27 BE FILED.
28 (B) NOTIFICATION.--IF LAW ENFORCEMENT OFFICIALS HAVE
29 REASONABLE CAUSE TO SUSPECT THAT A RECIPIENT HAS SUFFERED SEXUAL
30 ABUSE, SERIOUS BODILY INJURY OR A SUSPICIOUS DEATH, LAW
19950H0305B4085 - 26 -
1 ENFORCEMENT OFFICIALS SHALL NOTIFY THE AGENCY.
2 (C) COOPERATION.--TO THE FULLEST EXTENT POSSIBLE, LAW
3 ENFORCEMENT OFFICIALS, THE FACILITY AND THE AGENCY SHALL
4 COORDINATE THEIR RESPECTIVE INVESTIGATIONS. LAW ENFORCEMENT
5 OFFICIALS, THE FACILITY AND THE AGENCY SHALL ADVISE EACH OTHER
6 AND PROVIDE ANY APPLICABLE ADDITIONAL INFORMATION ON AN ONGOING
7 BASIS.
8 (D) FURTHER NOTIFICATION.--LAW ENFORCEMENT OFFICIALS SHALL
9 NOTIFY THE AGENCY AND THE FACILITY OF A DECISION REGARDING
10 CRIMINAL CHARGES. THE AGENCY AND THE DEPARTMENT SHALL KEEP A
11 RECORD OF ANY DECISION REGARDING CRIMINAL CHARGES.
12 (E) COMPLIANCE WITH CHAPTER 3.--IN ADDITION TO THE
13 PROVISIONS OF THIS SECTION, THE AGENCY SHALL COMPLY WITH CHAPTER
14 3.
15 SECTION 704. RESTRICTIONS ON EMPLOYEES.
16 (A) PLAN OF SUPERVISION.--UPON NOTIFICATION THAT AN EMPLOYEE
17 IS ALLEGED TO HAVE COMMITTED ABUSE, THE FACILITY SHALL
18 IMMEDIATELY IMPLEMENT A PLAN OF SUPERVISION OR, WHERE
19 APPROPRIATE, SUSPENSION OF THE EMPLOYEE, SUBJECT TO APPROVAL BY
20 THE AGENCY AND BY THE COMMONWEALTH AGENCY WITH REGULATORY
21 AUTHORITY OVER THE FACILITY. A PLAN OF SUPERVISION FOR A HOME
22 HEALTH CARE AGENCY MUST INCLUDE PERIODIC RANDOM DIRECT
23 INSPECTIONS OF CARE-DEPENDENT INDIVIDUALS BY A FACILITY EMPLOYEE
24 WHO HAS BEEN CONTINUOUSLY EMPLOYED BY THAT FACILITY FOR A PERIOD
25 OF AT LEAST ONE YEAR.
26 (B) PROHIBITION.--UPON THE FILING OF CRIMINAL CHARGES
27 AGAINST AN EMPLOYEE, THE COMMONWEALTH AGENCY WHICH LICENSES THE
28 FACILITY SHALL ORDER THE FACILITY TO IMMEDIATELY PROHIBIT THAT
29 EMPLOYEE FROM HAVING ACCESS TO RECIPIENTS AT THE FACILITY. IF
30 THAT EMPLOYEE IS A DIRECTOR, OPERATOR, ADMINISTRATOR OR
19950H0305B4085 - 27 -
1 SUPERVISOR, THAT EMPLOYEE SHALL BE SUBJECT TO RESTRICTIONS
2 DEEMED APPROPRIATE BY THE COMMONWEALTH AGENCY WHICH LICENSES THE
3 FACILITY TO ASSURE THE SAFETY OF RECIPIENTS OF THE FACILITY.
4 SECTION 705. CONFIDENTIALITY OF AND ACCESS TO CONFIDENTIAL
5 REPORTS.
6 (A) GENERAL RULE.--EXCEPT AS PROVIDED IN SUBSECTION (B), A
7 REPORT UNDER THIS CHAPTER SHALL BE CONFIDENTIAL.
8 (B) EXCEPTIONS.--A REPORT UNDER THIS CHAPTER SHALL BE MADE
9 AVAILABLE TO ALL OF THE FOLLOWING:
10 (1) AN EMPLOYEE OF THE DEPARTMENT OR OF AN AGENCY IN THE
11 COURSE OF OFFICIAL DUTIES IN CONNECTION WITH RESPONSIBILITIES
12 UNDER THIS CHAPTER.
13 (2) AN EMPLOYEE OF THE DEPARTMENT OF HEALTH OR THE
14 DEPARTMENT OF PUBLIC WELFARE IN THE COURSE OF OFFICIAL
15 DUTIES.
16 (3) AN EMPLOYEE OF AN AGENCY OF ANOTHER STATE WHICH
17 PERFORMS PROTECTIVE SERVICES SIMILAR TO THOSE UNDER THIS
18 CHAPTER.
19 (4) A PRACTITIONER OF THE HEALING ARTS WHO IS EXAMINING
20 OR TREATING A RECIPIENT AND WHO SUSPECTS THAT THE RECIPIENT
21 IS IN NEED OF PROTECTION UNDER THIS CHAPTER.
22 (5) THE DIRECTOR, OR AN INDIVIDUAL SPECIFICALLY
23 DESIGNATED IN WRITING BY THE DIRECTOR, OF ANY HOSPITAL OR
24 OTHER MEDICAL INSTITUTION WHERE A VICTIM IS BEING TREATED IF
25 THE DIRECTOR OR DESIGNEE SUSPECTS THAT THE RECIPIENT IS IN
26 NEED OF PROTECTION UNDER THIS CHAPTER.
27 (6) A GUARDIAN OF THE RECIPIENT.
28 (7) A COURT OF COMPETENT JURISDICTION PURSUANT TO A
29 COURT ORDER.
30 (8) THE ATTORNEY GENERAL.
19950H0305B4085 - 28 -
1 (9) LAW ENFORCEMENT OFFICIALS OF ANY JURISDICTION AS
2 LONG AS THE INFORMATION IS RELEVANT IN THE COURSE OF
3 INVESTIGATING CASES OF ABUSE.
4 (10) A MANDATED REPORTER UNDER CHAPTER 3 WHO MADE A
5 REPORT OF SUSPECTED ABUSE. INFORMATION RELEASED UNDER THIS
6 PARAGRAPH SHALL BE LIMITED TO THE FOLLOWING:
7 (I) THE FINAL STATUS OF THE REPORT FOLLOWING THE
8 INVESTIGATION.
9 (II) SERVICES PROVIDED OR TO BE PROVIDED BY THE
10 AGENCY.
11 (C) EXCISION OF CERTAIN NAMES.--THE NAME OF THE PERSON
12 SUSPECTED OF COMMITTING THE ABUSE SHALL BE EXCISED FROM A REPORT
13 MADE AVAILABLE UNDER SUBSECTIONS (B)(4), (5) AND (10).
14 (D) RELEASE OF INFORMATION TO SUBJECT OF REPORT.--UPON
15 WRITTEN REQUEST, A SUBJECT OF A REPORT MAY RECEIVE A COPY OF ALL
16 INFORMATION, EXCEPT THAT PROHIBITED FROM BEING DISCLOSED BY
17 SUBSECTION (E).
18 (E) PROTECTING IDENTITY OF PERSON MAKING REPORT.--EXCEPT FOR
19 REPORTS TO LAW ENFORCEMENT OFFICIALS, THE RELEASE OF DATA THAT
20 WOULD IDENTIFY THE INDIVIDUAL WHO MADE A REPORT UNDER THIS
21 CHAPTER OR AN INDIVIDUAL WHO COOPERATED IN A SUBSEQUENT
22 INVESTIGATION IS PROHIBITED. LAW ENFORCEMENT OFFICIALS SHALL
23 TREAT ALL REPORTING SOURCES AS CONFIDENTIAL INFORMATION.
24 SECTION 706. PENALTIES.
25 (A) ADMINISTRATIVE.--
26 (1) AN ADMINISTRATOR WHO INTENTIONALLY FAILS TO COMPLY
27 OR OBSTRUCTS COMPLIANCE WITH THE PROVISIONS OF THIS CHAPTER
28 COMMITS A VIOLATION OF THIS CHAPTER AND SHALL BE SUBJECT TO
29 AN ADMINISTRATIVE PENALTY UNDER PARAGRAPH (3).
30 (2) A FACILITY OWNER THAT FAILS TO COMPLY WITH, OR
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1 OBSTRUCTS COMPLIANCE WITH, THIS CHAPTER COMMITS A VIOLATION
2 OF THIS CHAPTER AND SHALL BE SUBJECT TO AN ADMINISTRATIVE
3 PENALTY UNDER PARAGRAPH (3).
4 (3) THE COMMONWEALTH AGENCY OR COMMONWEALTH AGENCIES
5 WHICH REGULATE THE FACILITY HAVE JURISDICTION TO DETERMINE
6 VIOLATIONS OF THIS CHAPTER AND MAY ISSUE AN ORDER ASSESSING A
7 CIVIL PENALTY OF NOT MORE THAN $2,500. AN ORDER UNDER THIS
8 PARAGRAPH IS SUBJECT TO 2 PA.C.S. CH. 5 SUBCH. A (RELATING TO
9 PRACTICE AND PROCEDURE OF COMMONWEALTH AGENCIES) AND CH. 7
10 SUBCH. A (RELATING TO JUDICIAL REVIEW OF COMMONWEALTH AGENCY
11 ACTION).
12 (B) CRIMINAL.--
13 (1) AN ADMINISTRATOR WHO INTENTIONALLY FAILS TO COMPLY
14 OR OBSTRUCTS COMPLIANCE WITH THIS CHAPTER COMMITS A SUMMARY
15 OFFENSE AND SHALL, UPON CONVICTION, BE SENTENCED TO PAY A
16 FINE OF $300 OR TO IMPRISONMENT FOR NOT MORE THAN 90 DAYS OR
17 BOTH.
18 (2) A FACILITY OWNER THAT FAILS TO COMPLY WITH, OR
19 OBSTRUCTS COMPLIANCE WITH, THIS CHAPTER COMMITS A SUMMARY
20 OFFENSE AND SHALL, UPON CONVICTION, BE SENTENCED TO PAY A
21 FINE OF $300 OR TO IMPRISONMENT FOR NOT MORE THAN 90 DAYS OR
22 BOTH.
23 SECTION 707. IMMUNITY.
24 AN ADMINISTRATOR OR A FACILITY SHALL NOT BE HELD CIVILLY
25 LIABLE FOR ANY ACTION DIRECTLY RELATED TO GOOD FAITH COMPLIANCE
26 WITH THIS CHAPTER.
27 SECTION 8. THE ACT IS AMENDED BY ADDING A CHAPTER HEADING TO
28 READ:
29 CHAPTER 51
30 MISCELLANEOUS PROVISIONS
19950H0305B4085 - 30 -
1 SECTION 9. SECTIONS 15 AND 16 OF THE ACT ARE AMENDED TO
2 READ:
3 SECTION [15] 5101. REPEALS.
4 ALL OTHER ACTS AND PARTS OF ACTS ARE REPEALED INSOFAR AS THEY
5 ARE INCONSISTENT WITH THIS ACT.
6 SECTION [16] 5102. EFFECTIVE DATE.
7 THIS ACT SHALL TAKE EFFECT JULY 1, 1988.
8 Section 5 10. This act shall take effect in 90 days. <--
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