PRIOR PRINTER'S NOS. 3240, 3321 PRINTER'S NO. 3535
No. 2319 Session of 2004
INTRODUCED BY VANCE, HESS, PISTELLA, WATSON, THOMAS, BAKER,
BARD, BEBKO-JONES, BELFANTI, BOYD, CAPPELLI, CIVERA, COSTA,
COY, CREIGHTON, DeWEESE, FRANKEL, GEIST, GINGRICH, GOOD,
HARRIS, HENNESSEY, HORSEY, KOTIK, MANN, MARSICO, MELIO,
R. MILLER, S. MILLER, NAILOR, NICKOL, O'NEILL, PAYNE,
PICKETT, REICHLEY, ROSS, RUBLEY, SATHER, SCAVELLO, SCHRODER,
SOLOBAY, TIGUE, TRUE, WASHINGTON, WEBER, WILT, YUDICHAK,
DeLUCA, YOUNGBLOOD, CRAHALLA, MACKERETH, E. Z. TAYLOR,
BALDWIN AND PALLONE, FEBRUARY 3, 2004
AS REPORTED FROM COMMITTEE ON AGING AND OLDER ADULT SERVICES,
HOUSE OF REPRESENTATIVES, AS AMENDED, MARCH 23, 2004
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," further providing for legislative policy;
8 further defining "employee"; further providing for
9 involuntary intervention by emergency court order AND for <--
10 information relating to prospective facility personnel, for <--
11 grounds for denying employment, for employing provisional <--
12 employees for limited periods and; AND PROVIDING FOR <--
13 CERTIFICATE OF EMPLOYABILITY, FOR REQUIREMENTS CONCERNING
14 CURRENT FACILITY EMPLOYEES, FOR COMPARISON STUDY BY
15 DEPARTMENT OF AGING AND for applicability relating to
16 criminal history for employees.
17 The General Assembly of the Commonwealth of Pennsylvania
18 hereby enacts as follows:
19 Section 1. Section 102 of the act of November 6, 1987
20 (P.L.381, No.79), known as the Older Adults Protective Services
21 Act, is amended to read:
1 Section 102. Legislative policy.
2 It is declared the policy of the Commonwealth of Pennsylvania
3 that older adults who lack the capacity to protect themselves
4 and are at imminent risk of abuse, neglect, exploitation or
5 abandonment shall have access to and be provided with services
6 necessary to protect their health, safety and welfare. It is not
7 the purpose of this act to place restrictions upon the personal
8 liberty of incapacitated older adults, but this act should be
9 liberally construed to assure the availability of protective
10 services to all older adults in need of them. Such services
11 shall safeguard the rights of incapacitated older adults while
12 protecting them from abuse, neglect, exploitation and
13 abandonment. It is the intent of the General Assembly to provide
14 for the detection and reduction, correction or elimination of
15 abuse, neglect, exploitation and abandonment, and to establish a
16 program of protective services for older adults in need of them.
17 It is further declared the policy of the Commonwealth that
18 the commission of any offense that constitutes serious physical
19 harm, a threat of serious physical harm or conduct which
20 evidences a reckless disregard for the vulnerability of care-
21 dependent populations, legitimately warrants a lifetime ban on
22 employment in facilities covered under this act. Further, for
23 facilities covered under this act, it is the policy of the
24 Commonwealth that the commission of any offenses related to
25 misappropriation or misuse of property or convictions which
26 involved inappropriate or irresponsible behavior legitimately
27 warrants a ban on employment for a period of ten years
28 immediately preceding the date of the report, not including any
29 time spent in incarceration.
30 Section 2. The definition of "employee" DEFINITIONS OF <--
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1 "EMPLOYEE" AND "FACILITY" in section 103 of the act, amended
2 December 18, 1996 (P.L.1125, No.169), is ARE amended to read: <--
3 Section 103. Definitions.
4 The following words and phrases when used in this act shall
5 have the meanings given to them in this section unless the
6 context clearly indicates otherwise:
7 * * *
8 "Employee." [An individual who is employed by a facility.
9 The term includes contract employees who have direct contact
10 with residents or unsupervised access to their personal living
11 quarters. The term includes any person who is employed or who
12 enters into a contractual relationship to provide care to a
13 care-dependent individual for monetary consideration in the
14 individual's place of residence.] An individual who has direct
15 contact with recipients or unsupervised access to their living
16 quarters and is either employed by a facility or a contract
17 employee. The term includes any person who is employed or who
18 enters into a contractual relationship to provide care to a
19 care-dependent individual for monetary consideration in the
20 individual's place of residence.
21 * * *
22 "FACILITY." ANY OF THE FOLLOWING: <--
23 (1) A DOMICILIARY CARE HOME AS DEFINED IN SECTION 2202-A
24 OF THE ACT OF APRIL 9, 1929 (P.L.177, NO.175), KNOWN AS THE
25 ADMINISTRATIVE CODE OF 1929.
26 (2) A HOME HEALTH CARE AGENCY.
27 (3) A LONG-TERM CARE NURSING FACILITY AS DEFINED IN
28 SECTION 802.1 OF THE ACT OF JULY 19, 1979 (P.L.130, NO.48),
29 KNOWN AS THE HEALTH CARE FACILITIES ACT.
30 (4) AN OLDER ADULT DAILY LIVING CENTER AS DEFINED IN
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1 SECTION 2 OF THE ACT OF JULY 11, 1990 (P.L.499, NO.118),
2 KNOWN AS THE OLDER ADULT DAILY LIVING CENTERS LICENSING ACT.
3 (5) A PERSONAL CARE HOME AS DEFINED IN SECTION 1001 OF
4 THE ACT OF JUNE 13, 1967 (P.L.31, NO.21), KNOWN AS THE PUBLIC
5 WELFARE CODE.
6 THE TERM DOES NOT INCLUDE AN ENTITY LICENSED BY THE DEPARTMENT
7 OF HEALTH TO PROVIDE DRUG AND ALCOHOL ADDICTION TREATMENT
8 SERVICES.
9 * * *
10 Section 3. Section 307(a) SECTIONS 307(A) AND 501 of the <--
11 act, amended December 18, 1996 (P.L.1125, No.169), is ARE <--
12 amended to read:
13 Section 307. Involuntary intervention by emergency court order.
14 (a) Emergency petition.--[Where there was clear and
15 convincing evidence that if protective services are not
16 provided, the person to be protected is at imminent risk of
17 death or serious physical harm, the agency may petition the
18 court for an emergency order to provide the necessary services.]
19 An agency may petition a court of common pleas for an emergency
20 order to provide protective services to an older adult who is at
21 imminent risk of death or serious physical harm including
22 exploitation that may lead to imminent risk of death or serious
23 physical harm. The court of common pleas shall grant the
24 agency's petition if it finds, by a preponderance of the
25 evidence, that if protective services are not provided, the
26 older adult is at imminent risk of death or serious physical
27 harm. The courts of common pleas of each judicial district shall
28 ensure that a judge or district justice is available on a 24-
29 hour-a-day, 365-day-a-year basis to accept and decide on
30 petitions for an emergency court order under this section
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1 whenever the agency determines that a delay until normal court
2 hours would significantly increase the danger the older adult
3 faces.
4 * * *
5 Section 4. Section 502 of the act, added December 18, 1996 <--
6 (P.L.1125, No.169), is amended to read:
7 Section 502. Information relating to prospective facility
8 personnel.
9 (a) General rule.--A facility shall require all applicants
10 to submit with their applications, and shall require all
11 administrators and any operators who have or may have direct
12 contact with a recipient to submit[, the following information
13 obtained within the preceding one-year period:
14 (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
15 history record information), a report of criminal history
16 record information from the State Police or a statement from
17 the State Police that their central repository contains no
18 such information relating to that person. The criminal
19 history record information shall be limited to that which is
20 disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to
21 general regulations).
22 (2) Where the applicant is not and for the two years
23 immediately preceding the date of application has not been a
24 resident of this Commonwealth, administration shall require
25 the applicant to submit with the application for employment]
26 a current report of Federal criminal history record
27 information pursuant to the Federal Bureau of Investigation's
28 appropriation under the Departments of State, Justice, and
29 Commerce, the Judiciary, and Related Agencies Appropriation
30 Act, 1973 (Public Law 92-544, 86 Stat. 1109). For the
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1 purposes of this subsection, a report shall be deemed current
2 if it was obtained within the one-year period preceding its
3 submission to the facility. The department shall be the
4 intermediary for the purposes of this [paragraph] subsection.
5 For the purposes of this [paragraph] subsection, the
6 applicant shall submit a full set of fingerprints to the
7 State Police, which shall forward them to the Federal Bureau
8 of Investigation for a national criminal history record
9 check. The information obtained from the criminal record
10 check shall be used by the department to determine the
11 applicant's eligibility. The determination shall be submitted
12 to the administrator by the applicant prior to commencing
13 employment. The administrator shall insure confidentiality of
14 the information.
15 (b) Fees.--[The State Police may charge the applicant a fee
16 of not more than $10 to conduct the criminal record check
17 required under subsection (a)(1).] The State Police may charge a
18 fee of not more than the established charge by the Federal
19 Bureau of Investigation for the criminal history record check
20 required under subsection [(a)(2)] (a). The State Police shall
21 develop a billing system to allow facilities and administrators
22 to assume responsibility for the fee under this subsection. The
23 State Police shall allow facilities or administrators to
24 establish an account for quarterly payment.
25 SECTION 501. DEFINITIONS. <--
26 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
27 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
28 CONTEXT CLEARLY INDICATES OTHERWISE:
29 "APPLICANT." AN INDIVIDUAL WHO SUBMITS AN APPLICATION, WHICH
30 IS BEING CONSIDERED FOR EMPLOYMENT, TO A FACILITY.
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1 "BUREAU." THE BUREAU OF PROFESSIONAL AND OCCUPATIONAL
2 AFFAIRS IN THE DEPARTMENT OF STATE.
3 "STATE POLICE." THE PENNSYLVANIA STATE POLICE.
4 Section 5 4. Section 503(a) of the act, amended June 9, 1997 <--
5 (P.L.160, No.13), is amended and the section is amended by
6 adding subsections to read:
7 Section 503. Grounds for denying employment.
8 [(a) General rule.--In no case shall a facility hire an
9 applicant or retain an employee required to submit information
10 pursuant to section 502(a) if the applicant's or employee's
11 criminal history record information indicates the applicant or
12 employee has been convicted of any of the following offenses:
13 (1) An offense designated as a felony under the act of
14 April 14, 1972 (P.L.233, No.64), known as The Controlled
15 Substance, Drug, Device and Cosmetic Act.
16 (2) An offense under one or more of the following
17 provisions of 18 Pa.C.S. (relating to crimes and offenses):
18 Chapter 25 (relating to criminal homicide).
19 Section 2702 (relating to aggravated assault).
20 Section 2901 (relating to kidnapping).
21 Section 2902 (relating to unlawful restraint).
22 Section 3121 (relating to rape).
23 Section 3122.1 (relating to statutory sexual
24 assault).
25 Section 3123 (relating to involuntary deviate sexual
26 intercourse).
27 Section 3124.1 (relating to sexual assault).
28 Section 3125 (relating to aggravated indecent
29 assault).
30 Section 3126 (relating to indecent assault).
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1 Section 3127 (relating to indecent exposure).
2 Section 3301 (relating to arson and related
3 offenses).
4 Section 3502 (relating to burglary).
5 Section 3701 (relating to robbery).
6 A felony offense under Chapter 39 (relating to theft
7 and related offenses) or two or more misdemeanors under
8 Chapter 39.
9 Section 4101 (relating to forgery).
10 Section 4114 (relating to securing execution of
11 documents by deception).
12 Section 4302 (relating to incest).
13 Section 4303 (relating to concealing death of child).
14 Section 4304 (relating to endangering welfare of
15 children).
16 Section 4305 (relating to dealing in infant
17 children).
18 Section 4952 (relating to intimidation of witnesses
19 or victims).
20 Section 4953 (relating to retaliation against witness
21 or victim).
22 A felony offense under section 5902(b) (relating to
23 prostitution and related offenses).
24 Section 5903(c) or (d) (relating to obscene and other
25 sexual materials and performances).
26 Section 6301 (relating to corruption of minors).
27 Section 6312 (relating to sexual abuse of children).
28 (3) A Federal or out-of-State offense similar in nature
29 to those crimes listed in paragraphs (1) and (2).]
30 (a.1) Lifetime bans.--In no case shall a facility hire an
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1 applicant required to submit information pursuant to section
2 502(a) or retain an employee required to submit information
3 pursuant to section 508, if the applicant's or employee's
4 criminal history record information indicates the applicant or
5 employee has been convicted of any of the following offenses:
6 (1) An offense under one of the following provisions of
7 18 Pa.C.S. (relating to crimes and offenses) which is graded
8 as a felony:
9 Chapter 25 (relating to criminal homicide).
10 Section 2702 (relating to aggravated assault), IF IT <--
11 IS GRADED AS A FELONY OF THE FIRST DEGREE.
12 Section 2709 (relating to harassment). <--
13 Section 2709.1 (relating to stalking).
14 Section 2713 (relating to neglect of care-dependent
15 person).
16 Section 2901 (relating to kidnapping).
17 Section 3121 (relating to rape).
18 Section 3123 (relating to involuntary deviate sexual
19 intercourse).
20 Section 3124.1 (relating to sexual assault).
21 Section 3125 (relating to aggravated indecent
22 assault).
23 Section 3301 (relating to arson and related
24 offenses).
25 Section 3701 (relating to robbery).
26 Section 4302 (relating to incest).
27 Section 4304 (relating to endangering welfare of
28 children).
29 Section 6312 (relating to sexual abuse of children).
30 (2) An offense under one of the following provisions of
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1 18 Pa.C.S. which is graded as a misdemeanor:
2 Section 2713 (relating to neglect of care-dependent
3 person).
4 Section 3126 (relating to indecent assault).
5 (3) A Federal or out-of-State offense similar in nature
6 to any offense listed in paragraph (1) or (2).
7 (a.2) Ten-year ban.--In no case may a facility hire an
8 applicant required to submit information pursuant to section
9 502(a) or retain an employee required to submit information
10 pursuant to section 508 if the applicant's or employee's
11 criminal history record information indicates the applicant or
12 employee has been convicted, within ten years immediately
13 preceding the date of the report, not including any time spent
14 in incarceration, of any of the following offenses:
15 (1) An offense graded a felony under the act of April
16 14, 1972 (P.L.233, No.64), known as The Controlled Substance,
17 Drug, Device and Cosmetic Act.
18 (2) An offense under one of the following provisions of
19 18 Pa.C.S. (relating to crimes and offenses) which is graded
20 as a felony:
21 SECTION 2702 (RELATING TO AGGRAVATED ASSAULT), IF IT <--
22 IS GRADED AS A FELONY OF THE SECOND DEGREE.
23 Section 2902 (relating to unlawful restraint).
24 Section 3122.1 (relating to statutory sexual
25 assault).
26 Section 3502 (relating to burglary).
27 SECTION 3702 (RELATING TO ROBBERY OF MOTOR VEHICLE). <--
28 Section 3921 (relating to theft by unlawful taking or
29 disposition).
30 Section 3922 (relating to theft by deception).
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1 Section 3923 (relating to theft by extortion).
2 Section 3924 (relating to theft of property lost,
3 mislaid, or delivered by mistake).
4 Section 3925 (relating to receiving stolen property).
5 Section 3926 (relating to theft of services).
6 Section 3927 (relating to theft by failure to make
7 required disposition of funds received).
8 Section 3929 (relating to retail theft), if there are
9 two or more convictions thereunder.
10 Section 3934 (relating to theft from a motor
11 vehicle).
12 Section 4101 (relating to forgery).
13 Section 4952 (relating to intimidation of witnesses
14 or victims).
15 Section 4953 (relating to retaliation against
16 witness, victim or party).
17 Section 5902 (relating to prostitution and related
18 offenses).
19 Section 6301(a)(1) (relating to corruption of <--
20 minors).
21 (3) An offense under one of the following provisions of
22 18 Pa.C.S. (relating to crimes and offenses) which is graded
23 as a misdemeanor:
24 Section 2504 (relating to involuntary manslaughter).
25 Section 2902 (relating to unlawful restraint).
26 Section 3127 (relating to indecent exposure).
27 Section 3921 (relating to theft by unlawful taking or
28 disposition), IF THERE ARE TWO OR MORE CONVICTIONS <--
29 THEREUNDER.
30 Section 3922 (relating to theft by deception).
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1 Section 3923 (relating to theft by extortion).
2 Section 3927 (relating to theft by failure to make
3 required disposition of funds received).
4 Section 3929 (relating to retail theft), if there are
5 two or more convictions thereunder.
6 Section 4101 (relating to forgery).
7 Section 4114 (relating to securing execution of
8 documents by deception).
9 Section 4303 (relating to concealing death of child).
10 Section 4305 (relating to dealing in infant
11 children).
12 SECTION 6301(A)(1) (RELATING TO CORRUPTION OF <--
13 MINORS).
14 (4) AN OFFENSE UNDER 18 PA.C.S. § 3929, IF THERE ARE TWO
15 OR MORE CONVICTIONS THEREUNDER, AT LEAST ONE OF WHICH IS A
16 MISDEMEANOR AND ONE OF WHICH IS A FELONY.
17 (4) (5) A Federal or out-of-State offense similar to any <--
18 offense listed in paragraph (1), (2) or (3), (3) OR (4). <--
19 * * *
20 (d) Right of review.--AN APPLICANT OR EMPLOYEE MAY REVIEW, <--
21 CHALLENGE AND APPEAL THE COMPLETENESS OR ACCURACY OF THAT
22 APPLICANT'S OR EMPLOYEE'S CRIMINAL HISTORY REPORT UNDER 18
23 PA.C.S. CH. 91 (RELATING TO CRIMINAL HISTORY RECORD
24 INFORMATION). An applicant or employee may challenge the
25 conviction comparison interpretation of the department involving
26 the Federal criminal history record by filing an appeal with the
27 department in accordance with 2 Pa.C.S. (relating to
28 administrative law and procedure).
29 Section 6. Section 506 of the act, added December 18, 1996 <--
30 (P.L.1125, No.169), is amended to read:
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1 Section 506. Provisional employees for limited periods.
2 Notwithstanding section 502, administrators may employ
3 applicants on a provisional basis for a single period not to
4 exceed [30 days or, for applicants under section 502(a)(2), a
5 period of] 90 days, if all of the following conditions are met:
6 (1) The applicant has applied for the information
7 required under section 502 and the applicant provides a copy
8 of the appropriate completed request forms to the
9 administrator.
10 (2) The administrator has no knowledge of information
11 pertaining to the applicant which would disqualify him from
12 employment pursuant to section 503, subject to 18 Pa.C.S. §
13 4911 (relating to tampering with public records or
14 information).
15 (3) The applicant swears or affirms in writing that he
16 is not disqualified from employment under section 503.
17 (4) If the information obtained under section 502
18 reveals that the applicant is disqualified from employment
19 under section 503, the applicant shall be immediately
20 dismissed by the administrator.
21 (5) The department shall develop guidelines regarding
22 the supervision of applicants. For a home health care agency,
23 supervision shall include random direct supervision by an
24 employee who has been employed by the facility for a period
25 of one year.
26 SECTION 5. THE ACT IS AMENDED BY ADDING SECTIONS TO READ: <--
27 SECTION 503.1. CERTIFICATE OF EMPLOYABILITY.
28 (A) GENERAL RULE.--AN INDIVIDUAL WHO WOULD OTHERWISE BE
29 PRECLUDED FROM EMPLOYMENT BY A FACILITY UNDER SECTION 503(A.2)
30 MAY APPLY FOR A CERTIFICATE OF EMPLOYMENT PROVIDED THAT AT LEAST
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1 FIVE YEARS, NOT INCLUDING ANY TIME SPENT IN INCARCERATION, HAVE
2 PASSED SINCE THE INDIVIDUAL'S CONVICTION OF ANY OFFENSE LISTED
3 UNDER SECTION 503(A.2). A CERTIFICATE OF EMPLOYMENT GRANTED
4 UNDER THIS SECTION SHALL BE APPLICABLE FOR ANY FACILITY SUBJECT
5 TO THIS ACT. THE ISSUANCE OF A CERTIFICATE SHALL PERMIT AN
6 INDIVIDUAL TO SEEK AND POSSIBLY OBTAIN EMPLOYMENT WITHIN A
7 FACILITY SUBJECT TO THIS ACT, BUT DOES NOT GUARANTEE THAT A
8 FACILITY WILL OFFER A POSITION OF EMPLOYMENT TO THE INDIVIDUAL.
9 (B) HEARING.--THE BUREAU SHALL CONDUCT A HEARING ON ANY
10 APPLICATION FILED BY AN INDIVIDUAL WHO WOULD OTHERWISE BE
11 PRECLUDED FROM EMPLOYMENT UNDER SECTION 503(A.2) AND DETERMINE
12 WHETHER THE INDIVIDUAL DEMONSTRATES REHABILITATION. A HEARING
13 UNDER THIS SECTION SHALL BE ADJUDICATED BY THE BUREAU'S HEARING
14 OFFICERS AND CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF 2
15 PA.C.S. (RELATING TO ADMINISTRATIVE LAW AND PROCEDURE). A
16 DETERMINATION BY A HEARING OFFICER SHALL BE A FINAL
17 DETERMINATION OF AN AGENCY WITH A RIGHT TO APPEAL TO
18 COMMONWEALTH COURT.
19 (C) EVIDENCE.--THE INDIVIDUAL APPLYING FOR A CERTIFICATE
20 MUST PROVE BY A PREPONDERANCE OF THE EVIDENCE, THE INDIVIDUAL'S
21 FITNESS TO WORK IN A FACILITY. THE DETERMINATION SHALL INCLUDE,
22 BUT NOT BE LIMITED TO, THE FOLLOWING FACTORS:
23 (1) PROOF OF RELEASE FROM INCARCERATION AND THE AMOUNT
24 OF TIME THAT HAS ELAPSED SINCE THE LAST CONVICTION.
25 (2) THE LENGTH AND STABILITY OF THE INDIVIDUAL'S
26 EMPLOYMENT HISTORY, PARTICULARLY IN THE FIELD IN WHICH THE
27 INDIVIDUAL IS SEEKING WORK.
28 (3) THE CIRCUMSTANCES OF THE OFFENSE FOR WHICH THE
29 INDIVIDUAL WAS CONVICTED AND THE NATURE OF THE CONVICTION.
30 (4) IF THE OFFENSE WAS RELATED TO DRUG USE, WHETHER THE
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1 INDIVIDUAL HAS UNDERGONE DRUG TREATMENT AND IS MAINTAINING
2 RECOVERY AND THE LENGTH OF TIME THE INDIVIDUAL HAS BEEN IN
3 RECOVERY.
4 (5) OTHER EVIDENCE OF POSTCONVICTION REHABILITATION,
5 INCLUDING, BUT NOT LIMITED TO, HISTORY OF COMMUNITY SERVICE,
6 PSYCHOLOGICAL COUNSELING AND CHARACTER REFERENCES.
7 (6) IN ADDITION TO EVIDENCE SUBMITTED BY THE INDIVIDUAL
8 APPLYING FOR A CERTIFICATE, THE BUREAU MAY CONSIDER
9 TESTIMONY, LETTERS OR RECOMMENDATIONS FROM:
10 (I) LICENSED PROFESSIONALS.
11 (II) MEMBERS OF THE COMMUNITY.
12 (III) PUBLIC OFFICIALS.
13 (IV) FORMER EMPLOYERS.
14 (V) AN EMPLOYER INTENDING TO HIRE THE INDIVIDUAL.
15 (VI) OTHERS WITH KNOWLEDGE OF THE INDIVIDUAL OR
16 OTHER EVIDENCE RELEVANT TO THE APPLICATION.
17 (7) THE BUREAU MAY CONSIDER, IF PROVIDED TO THE BUREAU
18 PRIOR TO THE SCHEDULED HEARING DATE OR, AT THE BUREAU'S
19 OPTION, PROVIDED AT THE SCHEDULED HEARING, ANY TESTIMONY,
20 LETTERS OR RECOMMENDATIONS SUBMITTED BY:
21 (I) THE DISTRICT ATTORNEY OF THE COUNTY WHERE ANY
22 OFFENSE LISTED UNDER SECTION 503(A.2) OCCURRED.
23 (II) THE VICTIM LISTED, OR, IF THE VICTIM IS
24 DECEASED, FAMILY MEMBERS OF THE VICTIM OF ANY OFFENSE
25 UNDER SECTION 503(A.2).
26 (8) AT LEAST 30 DAYS PRIOR TO A HEARING ON AN
27 APPLICATION FOR A CERTIFICATE OF EMPLOYMENT, THE BUREAU SHALL
28 PROVIDE NOTICE OF THE HEARING TO THE DISTRICT ATTORNEY OF THE
29 COUNTY WHERE ANY OFFENSE LISTED UNDER SECTION 503(A.2)
30 OCCURRED AND SHALL MAKE ALL REASONABLE EFFORTS TO PROVIDE
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1 NOTICE OF THE HEARING TO THE VICTIM OR, IF THE VICTIM IS
2 DECEASED, FAMILY MEMBERS OF THE VICTIM OF ANY OFFENSE LISTED
3 UNDER SECTION 503(A.2).
4 (D) DETERMINATIONS.--THE BUREAU SHALL CONDUCT A HEARING ON
5 AN APPLICATION FOR A CERTIFICATE WITHIN 90 DAYS OF THE COMPLETED
6 APPLICATION BEING RECEIVED AND ISSUE A DECISION WITHIN 30 DAYS
7 OF THE HEARING UNLESS ADDITIONAL TIME IS REQUESTED BY THE
8 APPLICANT OR UPON A SHOWING OF GOOD CAUSE BY THE COMMONWEALTH.
9 DETERMINATIONS BY THE BUREAU SHALL BE COMMUNICATED TO THE
10 DEPARTMENT.
11 (E) CIVIL IMMUNITY.--AN ADMINISTRATOR OR OPERATOR OF A
12 FACILITY MAY NOT BE HELD CIVILLY LIABLE FOR ANY ACTION DIRECTLY
13 RELATED TO GOOD FAITH COMPLIANCE WITH THIS SECTION.
14 (F) RULES AND REGULATIONS.--THE BUREAU SHALL ESTABLISH RULES
15 AND REGULATIONS FOR THE REVIEW OF THE APPLICATIONS FOR A
16 CERTIFICATE CONSISTENT WITH THE GUIDELINES ESTABLISHED UNDER
17 THIS SECTION. NOTWITHSTANDING ANY PROVISIONS OF COMMONWEALTH LAW
18 TO THE CONTRARY, FOR THE PURPOSES OF THE ACT OF JUNE 25, 1982
19 (P.L.633, NO.181), KNOWN AS THE REGULATORY REVIEW ACT, THE AGING
20 AND YOUTH COMMITTEE OF THE SENATE, OR ITS SUCCESSOR, AND THE
21 AGING AND OLDER ADULT SERVICES COMMITTEE OF THE HOUSE OF
22 REPRESENTATIVES, OR ITS SUCCESSOR, SHALL BE DEEMED TO HAVE
23 JURISDICTION OVER THE BUREAU FOR REGULATIONS PROMULGATED UNDER
24 THIS SECTION. THE BUREAU MAY CONDUCT HEARINGS PURSUANT TO ANY
25 RULES AND REGULATIONS ALREADY PROMULGATED UNDER THE PROVISIONS
26 OF THE ACT OF JULY 2, 1993 (P.L.345, NO.48), ENTITLED "AN ACT
27 EMPOWERING THE GENERAL COUNSEL OR HIS DESIGNEE TO ISSUE
28 SUBPOENAS FOR CERTAIN LICENSING BOARD ACTIVITIES; PROVIDING FOR
29 HEARING EXAMINERS IN THE BUREAU OF PROFESSIONAL AND OCCUPATIONAL
30 AFFAIRS; PROVIDING ADDITIONAL POWERS TO THE COMMISSIONER OF
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1 PROFESSIONAL AND OCCUPATIONAL AFFAIRS; AND FURTHER PROVIDING FOR
2 CIVIL PENALTIES AND LICENSE SUSPENSION." COPIES OF THE RULES AND
3 REGULATIONS SHALL BE MADE AVAILABLE FOR DISTRIBUTION TO THE
4 PUBLIC.
5 (G) FEES.--NO APPLICATION FOR A CERTIFICATE SHALL BE
6 CONSIDERED BY THE BUREAU UNLESS ACCOMPANIED BY A FEE ESTABLISHED
7 BY THE BUREAU. ALL FEES IMPOSED SHALL BE SUFFICIENT TO COVER THE
8 COSTS OF IMPLEMENTING THIS SECTION. THE FEES IMPOSED BY THE
9 BUREAU SHALL BE PAID INTO THE PROFESSIONAL LICENSURE
10 AUGMENTATION ACCOUNT ESTABLISHED PURSUANT TO THE ACT OF JULY 1,
11 1978 (P.L.700, NO.124), KNOWN AS THE BUREAU OF PROFESSIONAL AND
12 OCCUPATIONAL AFFAIRS FEE ACT.
13 (H) NOTICE TO APPLICANTS.--NOTIFICATION OF THE PROVISIONS OF
14 THIS SECTION SHALL BE PROVIDED BY THE ADMINISTRATOR, IN A FORM
15 DESIGNATED BY THE DEPARTMENT, TO EACH APPLICANT.
16 SECTION 506.1. REQUIREMENTS CONCERNING CURRENT FACILITY
17 EMPLOYEES.
18 THE FOLLOWING SHALL APPLY:
19 (1) IF THE INFORMATION OBTAINED UNDER SECTION 502(A)
20 REVEALS THAT AN INDIVIDUAL CURRENTLY EMPLOYED AT A FACILITY
21 IS DISQUALIFIED FROM EMPLOYMENT UNDER SECTION 503(A.2), AND
22 THE INDIVIDUAL SEEKS TO APPLY FOR A CERTIFICATE PURSUANT TO
23 SECTION 503.1, THE INDIVIDUAL SHALL EITHER, AT THE OPTION OF
24 THE ADMINISTRATOR, BE PLACED ON SUSPENSION WITHOUT PAY OR
25 CONTINUE EMPLOYMENT UNDER SUPERVISION WITH NO UNSUPERVISED
26 DIRECT CONTACT WITH CARE DEPENDENT INDIVIDUALS UNTIL SUCH
27 TIME AS A CERTIFICATE IS ISSUED OR AN APPEAL IS FILED
28 PURSUANT TO PARAGRAPH (4). THE DEPARTMENT SHALL DEVELOP
29 GUIDELINES REGARDING THE SUPERVISION OF EMPLOYEES UNDER THIS
30 PARAGRAPH.
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1 (2) IF AN INDIVIDUAL CURRENTLY EMPLOYED AT A FACILITY
2 FAILS TO FILE AN APPLICATION FOR A CERTIFICATE WITHIN 30 DAYS
3 OF BEING SUSPENDED OR PLACED UNDER SUPERVISION BY A FACILITY
4 RECEIVING THE INFORMATION UNDER SECTION 502(A), THE
5 INDIVIDUAL SHALL BE IMMEDIATELY DISMISSED BY THE
6 ADMINISTRATOR OF THE FACILITY.
7 (3) EXCEPT AS PROVIDED IN PARAGRAPH (4), IF AN
8 APPLICATION IS DENIED PURSUANT TO SECTION 503.1, THE
9 INDIVIDUAL ON SUSPENSION OR SUPERVISED EMPLOYMENT SHALL BE
10 IMMEDIATELY DISMISSED BY THE ADMINISTRATOR OF THE FACILITY.
11 (4) IF AN APPEAL IS FILED BY EITHER PARTY WITH THE
12 COMMONWEALTH COURT FROM A DECISION UNDER SECTION 503.1(D),
13 CONCERNING AN INDIVIDUAL ON SUSPENSION OR SUPERVISED
14 EMPLOYMENT, THEN THE ADMINISTRATOR OF THE FACILITY SHALL HAVE
15 THE OPTION TO CONTINUE THE SUSPENSION PERIOD OR SUPERVISED
16 EMPLOYMENT UNDER PARAGRAPH (1) OR TERMINATE THE INDIVIDUAL.
17 (5) AT NO TIME MAY AN INDIVIDUAL BE DISMISSED FROM
18 EMPLOYMENT FOR OFFENSES RESULTING IN DISQUALIFICATION FROM
19 EMPLOYMENT UNDER SECTION 503(A.2) WHILE AN APPLICATION IS
20 PENDING AND BEFORE A FINAL DETERMINATION OF THAT APPLICATION
21 IS MADE PURSUANT TO SECTION 503.1(D).
22 (6) WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THIS
23 SECTION, ANY ADMINISTRATOR OF A FACILITY SHALL PROVIDE COPIES
24 OF SECTION 503.1 AND THIS SECTION TO ALL CURRENT FACILITY
25 EMPLOYEES.
26 Section 7 6. Section 508 of the act, amended June 9, 1997 <--
27 (P.L.160, No.13), is amended to read:
28 Section 508. Applicability.
29 This chapter shall apply as follows:
30 [(1) An individual who, on the effective date of this
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1 chapter, has continuously for a period of one year been an
2 employee of the same facility shall be exempt from section
3 502 as a condition of continued employment.
4 (2) If an employee is not exempt under paragraph (1),
5 the employee and the facility shall comply with section 502
6 within one year of the effective date of this chapter.
7 (3) If an employee who is exempt under paragraph (1)
8 seeks employment with a different facility, the employee and
9 the facility shall comply with section 502.]
10 (3.1) An individual who, on the effective date of this
11 paragraph is a current employee of a facility shall, within
12 six 12 months of the effective date of this paragraph, comply <--
13 with section 502 as a condition of continued employment.
14 (4) An employee who has obtained the information
15 required under section 502 or 503 may transfer to another
16 facility established and supervised by the same owner and is
17 not required to obtain additional reports before making the
18 transfer.
19 SECTION 7. THE SECRETARY OF AGING SHALL COORDINATE A <--
20 COMPARISON STUDY ON THE IMPACT OF UTILIZING THE PENNSYLVANIA
21 STATE POLICE CRIMINAL BACKGROUND CHECK SYSTEM AND THE FEDERAL
22 BUREAU OF INVESTIGATION BACKGROUND CHECK SYSTEM PURSUANT TO
23 CHAPTER 5 OF THE ACT. THE PURPOSE OF THE STUDY SHALL BE TO
24 ASSESS THE FEASIBILITY OF CHANGING THE CURRENT PROCEDURE TO
25 REQUIRE THE FEDERAL BUREAU OF INVESTIGATION CHECK EXCLUSIVELY
26 FOR ALL APPLICANTS AND EMPLOYEES OR TO CONTINUE THE CURRENT
27 PROCEDURE OF UTILIZING BOTH SYSTEMS, WITH THE PENNSYLVANIA STATE
28 POLICE CHECK BEING THE BASELINE SYSTEM. SUCH STUDY SHALL
29 INCLUDE, BUT NOT BE LIMITED TO: A DETAILED REVIEW OF THE SCOPE
30 OF THE INFORMATION OBTAINED THROUGH THE USE OF EACH SYSTEM; THE
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1 RATE OF ACCURACY OF EACH SYSTEM; THE EFFICIENCY IN TERMS OF THE
2 TURNAROUND TIME ASSOCIATED WITH EACH SYSTEM; THE STEP-BY-STEP
3 PROCESS INVOLVED IN THE COMPLETION OF THE CHECKS REQUIRED IN
4 EACH SYSTEM; THE ESTIMATED FISCAL IMPACT TO THE DEPARTMENT OF
5 AGING AND TO EMPLOYERS ASSOCIATED WITH EACH SYSTEM; AND, CURRENT
6 INFORMATION REGARDING ANY ADVANCEMENTS THAT HAVE OCCURRED WITH
7 THE TECHNOLOGY INVOLVING CRIMINAL BACKGROUND CHECKS AS WELL AS
8 ANY CHANGES THAT HAVE OCCURRED IN THE LEGAL FRAMEWORK GOVERNING
9 BACKGROUND CHECKS. NO LATER THAN ONE YEAR FROM THE EFFECTIVE
10 DATE OF THIS SECTION, THE SECRETARY OF AGING SHALL REPORT TO THE
11 AGING AND YOUTH COMMITTEE OF THE SENATE AND THE AGING AND OLDER
12 ADULT SERVICES COMMITTEE OF THE HOUSE OF REPRESENTATIVES THE
13 RESULTS OF THE STUDY.
14 Section 8. The provisions of this act are severable. If any
15 provision of this act or its application to any person or
16 circumstance is held invalid, the invalidity shall not affect
17 other provisions or applications of this act which can be given
18 effect without the invalid provision or application.
19 Section 9. This act shall take effect in 60 days.
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