PRINTER'S NO. 3179
No. 2269 Session of 2005
INTRODUCED BY SATHER, VEON, KENNEY, HESS, PISTELLA, BAKER,
BARRAR, BELFANTI, BOYD, BUNT, CALTAGIRONE, CAPPELLI, CAWLEY,
CLYMER, CRAHALLA, CREIGHTON, DeLUCA, DENLINGER, DERMODY,
FABRIZIO, FRANKEL, FREEMAN, GEIST, GINGRICH, GOOD, GOODMAN,
GRUCELA, HARPER, HENNESSEY, HERMAN, JAMES, KOTIK, LEH,
MACKERETH, MANN, MARKOSEK, McNAUGHTON, MICOZZIE, R. MILLER,
S. MILLER, MUSTIO, NAILOR, O'NEILL, PHILLIPS, PICKETT, RAPP,
READSHAW, REICHLEY, ROEBUCK, ROSS, RUBLEY, SCAVELLO, SEMMEL,
SIPTROTH, B. SMITH, STERN, T. STEVENSON, SURRA, E. Z. TAYLOR,
THOMAS, TIGUE, TRUE, TURZAI, WANSACZ, WATSON, WHEATLEY, WILT
AND YOUNGBLOOD, NOVEMBER 28, 2005
REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES,
NOVEMBER 28, 2005
AN ACT
1 Providing for protection of abused, neglected, exploited or
2 abandoned adults; establishing a uniform Statewide reporting
3 and investigative system for suspected abuse, neglect,
4 exploitation or abandonment of adults; providing for
5 protective services and for funding; and prescribing
6 penalties.
7 TABLE OF CONTENTS
8 Chapter 1. Preliminary Provisions
9 Section 101. Short title.
10 Section 102. Legislative policy.
11 Section 103. Definitions.
12 Chapter 3. Administration
13 Section 301. Duties of department and agencies.
14 Section 302. Reporting.
15 Section 303. Investigations of reports of need for protective
1 services.
2 Section 304. Provision of services.
3 Section 305. Immunity from civil and criminal liability.
4 Section 306. Confidentiality of records.
5 Section 307. Involuntary intervention by emergency court
6 order.
7 Section 308. Rights of protective services clients.
8 Section 309. Financial obligations, liabilities and payments.
9 Section 310. Regulations.
10 Section 311. Funds for payment of administration of chapter.
11 Chapter 5. Reporting Suspected Abuse by Employees
12 Section 501. Reporting by employees.
13 Section 502. Reports to department and coroner or medical
14 examiner.
15 Section 503. Investigation.
16 Section 504. Restrictions on employees.
17 Section 505. Confidentiality of and access to confidential
18 reports.
19 Section 506. Penalties.
20 Section 507. Immunity.
21 Section 508. Regulations.
22 Chapter 7. Miscellaneous Provisions
23 Section 701. Repeals.
24 Section 702. Effective date.
25 The General Assembly of the Commonwealth of Pennsylvania
26 hereby enacts as follows:
27 CHAPTER 1
28 PRELIMINARY PROVISIONS
29 Section 101. Short title.
30 This act shall be known and may be cited as the Adult
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1 Protective Services Act.
2 Section 102. Legislative policy.
3 It is declared the policy of this Commonwealth that:
4 (1) Adults who lack the capacity to protect themselves
5 and are at imminent risk of abuse, neglect, exploitation or
6 abandonment should have access to services necessary to
7 protect their health, safety and welfare.
8 (2) Adults have the right to make choices, subject to
9 the provisions of this act, regarding their lifestyles,
10 relationships, bodies and health, even when those choices
11 present risks to self or property.
12 (3) Adults have the right to refuse some or all
13 protective services.
14 (4) Information about protective services should be
15 provided in a safe place and in a safe, understandable and
16 responsive manner.
17 (5) The Commonwealth should provide for the detection
18 and reduction, correction or elimination of abuse, neglect,
19 exploitation and abandonment and establish a program of
20 protective services for adults in need of them.
21 (6) Adults have the right to receive services in the
22 most integrated settings and in the manner least restrictive
23 of individual liberties.
24 Section 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 "Abandonment." The desertion of an adult by a caregiver.
29 "Abuse." The occurrence of one or more of the following
30 acts:
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1 (1) The infliction of injury, unreasonable confinement,
2 intimidation or punishment with resulting physical harm, pain
3 or mental anguish.
4 (2) The willful deprivation by a caregiver of goods or
5 services which are necessary to maintain physical or mental
6 health.
7 (3) Sexual harassment, rape or abuse as defined in 23
8 Pa.C.S. § 6102 (relating to definitions).
9 The term does not include environmental factors which are beyond
10 the control of an adult or caregiver, including, but not limited
11 to, inadequate housing, furnishings, income, clothing or medical
12 care.
13 "Administrator." The person responsible for the
14 administration of a facility. The term includes a person
15 responsible for employment decisions or an independent
16 contractor.
17 "Adult." A person within the jurisdiction of this
18 Commonwealth who is between 18 and 59 years of age.
19 "Adult in need of protective services." An adult who needs
20 the assistance of another person to obtain protective services
21 in order to prevent imminent risk to person or property as a
22 result of one or more functional limitations.
23 "Adult with a disability." An individual with a physical or
24 mental impairment that substantially limits one or more of the
25 major life activities of the individual.
26 "Agency." A local contracted provider of protective
27 services.
28 "Caregiver." An individual or institution that has assumed
29 the responsibility for the provision of care needed to maintain
30 the physical or mental health of an adult. This responsibility
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1 may arise voluntarily, by contract, by receipt of payment for
2 care, as a result of family relationship or by order of a court
3 of competent jurisdiction. It is not the intent of this act to
4 impose responsibility on any individual if the responsibility
5 would not otherwise exist in law.
6 "Client assessment." Social, physical and psychological
7 findings along with a description of the person's current
8 resources and needs.
9 "Court." A court of common pleas or a district magistrate
10 court, where applicable.
11 "Department." The Department of Aging of the Commonwealth.
12 "Employee." An individual who is employed by a facility. The
13 term includes:
14 (1) A contract employee who has direct contact with
15 residents or unsupervised access to their personal living
16 quarters.
17 (2) A person who is employed or who enters into a
18 contractual relationship to provide care to an adult for
19 monetary consideration in the adult's place of residence.
20 "Exploitation." An act or course of conduct by a caregiver
21 or other person against an adult or an adult's resources,
22 without the informed consent of the adult or with consent
23 obtained through misrepresentation, coercion or threats of
24 force, that results in monetary, personal or other benefit, gain
25 or profit for the perpetrator or monetary or personal loss to
26 the adult.
27 "Facility." The term includes, but is not limited to:
28 (1) A domiciliary care home as defined in section 2202-A
29 of the act of April 9, 1929 (P.L.177, No.175), known as The
30 Administrative Code of 1929.
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1 (2) A home health care agency.
2 (3) A long-term care nursing facility as defined in
3 section 802.1 of the act of July 19, 1979 (P.L.130, No.48),
4 known as the Health Care Facilities Act.
5 (4) A personal care home as defined in section 1001 of
6 the act of June 13, 1967 (P.L.31, No.21), known as the Public
7 Welfare Code.
8 (5) An organization.
9 "Home health care agency." Any of the following:
10 (1) A home health care organization or agency licensed
11 by the Department of Health.
12 (2) A public or private agency or organization, or part
13 of an agency or organization, that provides care to an adult
14 in the adult's place of residence.
15 "Intimidation." An act or omission by a person or entity
16 toward another person which is intended to or with knowledge
17 that the act or omission will obstruct, impede, impair, prevent
18 or interfere with the administration of this act or any law
19 intended to protect adults from mistreatment.
20 "Law enforcement official." Any of the following:
21 (1) A police officer of a municipality.
22 (2) A district attorney.
23 (3) The Pennsylvania State Police.
24 "Neglect." The failure to provide for oneself or the failure
25 of a caregiver to provide goods or services essential to avoid a
26 clear and serious threat to the physical or mental health of an
27 adult. The term does not include environmental factors that are
28 beyond the control of an adult or the caregiver, including, but
29 not limited to, inadequate housing, furnishings, income,
30 clothing or medical care.
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1 "Organization." An entity or group of people that uses
2 public funds and is paid, in part, to provide care and support
3 to persons with disabilities in a licensed or unlicensed
4 setting.
5 "Protective services." Those activities, resources and
6 supports provided to adults under this act to detect, prevent,
7 reduce or eliminate abuse, neglect, exploitation and
8 abandonment.
9 "Protective setting." A setting chosen by an agency where
10 services can be provided in the least restrictive environment to
11 protect the physical and mental well-being of an adult.
12 "Recipient." An individual who receives care, services or
13 treatment in or from a facility.
14 "Secretary." The Secretary of Aging of the Commonwealth.
15 "Serious bodily injury." Injury that:
16 (1) creates a substantial risk of death; or
17 (2) causes serious permanent disfigurement or protracted
18 loss or impairment of the function of a body member or organ.
19 "Serious mental harm." Mental suffering of great intensity
20 that creates a substantial risk of deterioration in routine
21 functioning.
22 "Serious physical injury." An injury that:
23 (1) causes a person severe pain; or
24 (2) significantly impairs a person's physical
25 functioning, either temporarily or permanently.
26 "Service plan." A written plan that includes all of the
27 following:
28 (1) Is cooperatively developed by an agency staff, a
29 person or the person's appointed guardian, if any, and other
30 family members and advocates when appropriate.
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1 (2) Is based on multidisciplinary, comprehensive written
2 assessments conducted by professionals familiar with the
3 person.
4 (3) Provides for services in the most integrated setting
5 and in a manner least restrictive to individual liberties.
6 (4) Describes identified needs, goals to be achieved and
7 specific services to support goal attainment, with regular
8 follow-up and predetermined reassessment of client progress.
9 (5) Is updated as needed.
10 "Sexual abuse." Intentionally, knowingly or recklessly
11 causing or attempting to cause rape, involuntary deviate sexual
12 intercourse, sexual assault, statutory sexual assault,
13 aggravated indecent assault or incest, as defined by 18 Pa.C.S.
14 (relating to crimes and offenses).
15 CHAPTER 3
16 ADMINISTRATION
17 Section 301. Duties of department and agencies.
18 (a) General rule.--
19 (1) The department shall administer the protective
20 services program in a manner designed to ensure that the
21 right of adults to make choices is protected and services are
22 provided in a manner that is least restrictive of individual
23 liberties.
24 (2) The department shall, in consultation with the
25 Department of Public Welfare and other appropriate State
26 agencies, define the geographic areas to be served by
27 agencies and shall select those agencies based upon a
28 competitive bidding process. Successful bidders must:
29 (i) Demonstrate knowledge regarding adults with
30 disabilities.
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1 (ii) Be separate from service providers.
2 (iii) Agree to practice principles of individual
3 choice, self-determination and least restrictive
4 alternatives.
5 (3) The department shall conduct an ongoing campaign
6 designed to inform and educate adults, families, caregivers,
7 professionals and the general public about the need for and
8 availability of protective services under this chapter. The
9 campaign shall require facilities to post notice of the
10 availability of protective services and to provide the notice
11 to recipients and their families. The department shall
12 consult with other departments of the Commonwealth on the
13 design and implementation of the ongoing public awareness
14 campaign. The department shall also consider the concerns of
15 agencies and entities identified by them under subsection
16 (b).
17 (4) The department shall establish, by regulation,
18 minimum standards of training and experience that protective
19 services providers funded by the department shall follow in
20 the selection and assignment of staff for the provision of
21 protective services. The standards shall require adults with
22 disabilities, their families and advocates to collaborate
23 with local protective services providers and the standards
24 shall be included in developing and delivering training.
25 (b) Agency duties.--Each agency shall submit a proposal that
26 includes a protective services plan. The plan shall:
27 (1) Describe the implementation of this chapter,
28 including, but not limited to, the organization, staffing,
29 mode of operations and financing of protective services, as
30 well as the provisions made for purchase of services,
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1 interagency relations, interagency agreements, service
2 referral mechanisms and locus of responsibility for cases
3 with multiservice agency needs.
4 (2) Describe the methods that the agency, its designees
5 and service providers will use to assure the privacy of all
6 adults receiving services and the confidentiality of all
7 records.
8 (3) List all entities, whether public or private, that
9 have been identified by the agency as having substantial
10 contact with potential victims or perpetrators of abuse,
11 neglect, exploitation and abandonment.
12 (4) Ensure that the entities have information regarding
13 the unique aspects of various disabilities.
14 The agency shall submit the list to the department for purposes
15 of the public information campaign under subsection (a).
16 Section 302. Reporting.
17 (a) General rule.--A person having reasonable cause to
18 believe that an adult is in need of protective services may
19 report such information to the agency that is the local provider
20 of protective services. Where applicable, reports shall comply
21 with the provisions of Chapter 5.
22 (b) Receiving reports.--The agency shall be capable of
23 receiving reports of adults in need of protective services 24
24 hours a day, seven days a week, including holidays. This
25 capability may include the use of a local emergency response
26 system or a crisis intervention agency, provided that access can
27 be made to a protective services caseworker in appropriate
28 emergency situations as set forth in regulations promulgated by
29 the department. All reports received orally under this section
30 shall be reduced to writing immediately by the person who
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1 receives the report.
2 (c) Screening.--A person who receives a report shall screen
3 the report during and immediately following receipt of the
4 report to assign it to one of the following referral categories:
5 (1) Priority. A report placed in this category shall
6 require immediate attention because specific details in the
7 report indicate the possibility that the adult reported to
8 need protective services is at imminent risk of death or
9 serious physical or mental harm. The person receiving an
10 emergency report shall immediately contact a protective
11 services caseworker and provide the caseworker with the
12 information contained in the report.
13 (2) Nonpriority. A report shall be placed in this
14 category when it does not appropriately fall within the
15 priority category and, therefore, does not require immediate
16 attention by the agency. A report in this category shall be
17 referred to a protective services caseworker of an agency
18 within the normal business hours of the agency's current or
19 next day of business under the agency's established
20 procedures for referring these reports.
21 (3) Another planning and service area. A report in which
22 the adult who is the subject of the report does not reside in
23 the planning and service area of the agency or, at that time,
24 is not in the planning and service area shall be placed in
25 this category. The report shall be referred to the agency
26 that has the designated responsibility for protective
27 services in the planning and service area in which the adult
28 reported to be in need of protective services is located at
29 the time of the report. A report in this category shall also
30 meet the criteria for placement in one of the other
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1 categories in this subsection. The provisions for referral
2 for the other category shall apply to a referral to another
3 planning and service area.
4 (4) No need for protective services. A report shall be
5 placed in this category when the person reported to be in
6 need of protective services meets at least one of the
7 following criteria:
8 (i) has the capacity to perform or obtain, without
9 help, services necessary to maintain physical or mental
10 health;
11 (ii) has a responsible caregiver at the time of the
12 report who is not the alleged perpetrator; or
13 (iii) is not at imminent risk or danger to his
14 person or property.
15 A report in this category shall be referred to a protective
16 services caseworker of the agency within the normal business
17 hours of the agency's current or next day of business. The
18 protective services caseworker shall review the details of
19 the report and take all steps necessary to confirm or reject
20 the categorization of no need for protective services. If the
21 caseworker confirms the screening categorization, appropriate
22 referrals shall be made to other agencies, upon request, and
23 the protective services case shall be closed. If the
24 caseworker rejects the categorization, the report shall be
25 placed in the appropriate category and shall be handled
26 accordingly. A report may not be placed in this category if
27 the adult is temporarily relocated to a safe environment and
28 will return to the original abusive situation or to a new
29 location which has not been determined to be safe.
30 (d) Retaliatory action.--
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1 (1) Any person who makes a report or cooperates with the
2 agency, including providing testimony in any administrative
3 or judicial proceeding, and any victim shall not be subject
4 to any discriminatory, retaliatory or disciplinary action by
5 an employer or by any other person or entity.
6 (2) Any person who violates this subsection is subject
7 to a civil action by the reporter or the victim, in which
8 action the reporter or victim shall recover treble
9 compensatory damages, compensatory and punitive damages or
10 $5,000, whichever is greater.
11 (e) Intimidation.--
12 (1) A person, including a victim, with knowledge
13 sufficient to justify making a report or cooperating with an
14 agency, including possibly providing testimony in an
15 administrative or judicial proceeding, shall not be subject
16 to any intimidation by an employer or by any other person or
17 entity.
18 (2) A person who violates this subsection is subject to
19 civil action by the reporter or the victim, in which action
20 the reporter or victim shall recover treble compensatory
21 damages, compensatory and punitive damages or $5,000,
22 whichever is greater.
23 (f) Immunity.--
24 (1) A person who participates in the making of a report
25 or who provides testimony in an administrative or judicial
26 proceeding arising out of a report shall be immune from any
27 civil or criminal liability, subject to paragraph (2), on
28 account of the report or testimony, unless the person acted
29 in bad faith or with malicious purpose.
30 (2) The immunity established under paragraph (1) shall
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1 not extend to liability for an act of abuse, neglect,
2 exploitation or abandonment even if such act is the subject
3 of the report or testimony.
4 Section 303. Investigations of reports of need for protective
5 services.
6 (a) Investigation.--
7 (1) An agency shall investigate each report made under
8 section 302. The investigation shall be initiated immediately
9 for an emergency intake and within 24 hours for a priority
10 intake.
11 (2) An emergency and priority intake shall be conducted
12 face to face, except when the adult is hospitalized or
13 emergency services are provided through another method.
14 (3) The investigation shall be initiated within 72 hours
15 for a nonpriority intake, which may be conducted by telephone
16 contact.
17 (4) The department shall adopt regulations providing for
18 the methods of conducting investigations under this section
19 and shall assure that steps are taken to avoid any conflict
20 of interest between the investigator and service delivery
21 functions.
22 (5) Reports and investigations conducted under this
23 section shall comply with the provisions of Chapter 5, where
24 applicable.
25 (b) Investigation involving licensed facilities.--
26 (1) A report concerning adults residing in a State-
27 licensed facility shall be reported to the appropriate
28 licensing department and investigated under procedures
29 developed by the department in consultation with the bureau
30 within the Department of State responsible for the licensure
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1 of the facility.
2 (2) The protective services agency may seek judicial
3 relief to require the provider to protect the health and
4 safety of the individual when the licensed program is
5 believed to continue to jeopardize the adult's health and
6 safety through evidence of risk substantiated.
7 (c) Unsubstantiated reports.--If after investigation by the
8 agency a report is unsubstantiated, the case shall be closed,
9 and all information shall be maintained for a period of one year
10 under procedures established by the department.
11 (d) Substantiated reports.--
12 (1) If a report is substantiated by the agency or if the
13 client assessment is necessary in order to determine whether
14 the report is substantiated, the agency shall provide for a
15 timely client assessment if the adult does not refuse consent
16 to an assessment.
17 (2) Upon completion of the assessment, written findings
18 shall be prepared that include recommended action in a
19 service plan. The service plan shall:
20 (i) Provide for the least restrictive alternative,
21 encouraging client self-determination and continuity of
22 care.
23 (ii) Assure that services and supports are provided
24 in the most integrated setting and in a manner that is
25 least restrictive of the individual's liberty and may not
26 provide for relocation of the client without consent,
27 absent a court order.
28 (iii) Be in writing and include a recommended course
29 of action that may include the pursuit of civil or
30 criminal remedies.
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1 (3) If an adult who is found to be in need of protective
2 services refuses a client assessment or the development of a
3 service plan, the agency may apply to the case the provisions
4 of section 307.
5 Section 304. Provision of services.
6 (a) Availability of protective services.--An agency shall
7 offer protective services under any of the following conditions:
8 (1) An adult requests the services.
9 (2) Another interested person requests the services on
10 behalf of an adult.
11 (3) If, after investigation of a report, the agency
12 determines an adult is in need of the services.
13 (b) Consent by request.--
14 (1) Except as provided in section 307, an adult shall
15 receive protective services voluntarily. In no event may
16 protective services be provided under this chapter to an
17 adult who refuses consent to the services or who, having
18 consented, withdraws the consent, unless the services are
19 ordered by a court or provided under section 307.
20 (2) Nothing in this chapter shall be construed to
21 prevent an agency from petitioning for the appointment of a
22 guardian pursuant to 20 Pa.C.S. (relating to decedents,
23 estates and fiduciaries).
24 (c) Interference with services.--If any person interferes
25 with the provision of services or the right of an adult to
26 consent to provision of services, the agency may petition the
27 court for an order enjoining the interference.
28 (d) Access to records.--An agency shall have access to all
29 records relevant to:
30 (1) Investigations of reports under section 303.
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1 (2) Assessment of client need.
2 (3) Development of a service plan when an adult's need
3 for protective services has been or is being established.
4 (4) Delivery of services arranged for under the service
5 plan developed by the agency to respond to an adult's
6 assessed need for specific services.
7 (e) Access to persons.--An agency shall have access to
8 adults who have been reported to be in need of protective
9 services in order to:
10 (1) Investigate reports under section 303 and Chapter 5.
11 (2) Assess client need and develop a service plan for
12 addressing needs determined.
13 (3) Provide for the delivery of services by the agency
14 or other service provider arranged for under the service plan
15 developed by the agency.
16 (f) Denial of access to persons.--If the agency is denied
17 access to an adult reported to be in need of protective services
18 and access is necessary to complete the investigation or the
19 client assessment and service plan or the delivery of needed
20 services in order to prevent further abuse, neglect,
21 exploitation or abandonment of the adult, the agency may
22 petition the court for an order to require the appropriate
23 access when either of the following conditions apply:
24 (1) The caregiver or a third party has interfered with
25 the completion of the investigation or the client assessment
26 and service plan or the delivery of services.
27 (2) The agency can demonstrate that the adult denies
28 access because of coercion, extortion or justifiable fear of
29 further abuse, neglect, exploitation or abandonment.
30 (g) Access by consent.--An agency's access to confidential
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1 records held by other agencies or individuals and to an adult
2 reported to be in need of protective services shall require the
3 consent of the adult or a court-appointed guardian except as
4 provided for under this section or section 307.
5 (h) Denial of access to records.--If the agency is denied
6 access to records necessary for completion of a proper
7 investigation of a report or a client assessment and service
8 plan or the delivery of needed services in order to prevent
9 further abuse, neglect, exploitation or abandonment of the adult
10 reported to be in need of protective services, the agency may
11 petition the court of common pleas for an order requiring the
12 appropriate access when either of the following conditions
13 apply:
14 (1) The adult has provided written consent for any
15 confidential records to be disclosed and the keeper of the
16 records denies access.
17 (2) The agency can demonstrate that the adult denies
18 access to records because of incompetence, coercion,
19 extortion or justifiable fear of future abuse, neglect,
20 exploitation or abandonment.
21 Section 305. Immunity from civil and criminal liability.
22 In the absence of willful misconduct or gross negligence, an
23 agency, its director and employees, protective services workers
24 or employees of the department shall not be civilly or
25 criminally liable for any decision or action or resulting
26 consequence of decisions or actions when acting under and
27 according to the provisions of this chapter.
28 Section 306. Confidentiality of records.
29 (a) General rule.--Information contained in reports, records
30 of investigation, client assessment and service plans shall be
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1 considered confidential and shall be maintained under
2 regulations promulgated by the department to safeguard
3 confidentiality. Except as otherwise provided in subsection (b),
4 this information shall not be disclosed to anyone outside the
5 agency other than to a court of competent jurisdiction or
6 pursuant to a court order.
7 (b) Limited access to agency's protective services
8 records.--
9 (1) In the event that an investigation by an agency
10 results in the discovery of suspected criminal conduct, law
11 enforcement officials shall be given access to all relevant
12 records maintained by the agency or the department.
13 (2) In arranging specific services to carry out service
14 plans, an agency may disclose to appropriate services
15 providers such information as may be necessary to initiate
16 the delivery of services.
17 (3) A subject of a report made under section 302 may
18 receive, upon written request, all information contained in
19 the report except that prohibited from disclosure under
20 paragraph (4).
21 (4) The release of information that would identify a
22 person who made a report of suspected abuse, neglect,
23 exploitation or abandonment or who cooperated in a subsequent
24 investigation is prohibited unless the secretary can
25 determine that such a release will not be detrimental to the
26 safety of the person.
27 (5) When the department is involved in the hearing of an
28 appeal by a subject of a report made under section 302, the
29 appropriate department staff shall be given access to all
30 information in the report record relevant to the appeal.
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1 (6) For the purpose of monitoring agency performance,
2 appropriate staff of the department may access agency
3 protective services records.
4 Section 307. Involuntary intervention by emergency court order.
5 (a) Emergency petition.--
6 (1) Where there is clear and convincing evidence that,
7 if protective services are not provided, the person to be
8 protected is at imminent risk of death, serious physical harm
9 or serious bodily injury, the agency may petition the court
10 for an emergency order to provide the necessary services.
11 (2) The court of common pleas of each judicial district
12 shall ensure that a judge or magisterial district judge is
13 available on a 24-hour-a-day, 365-day-a-year basis to accept
14 and decide on petitions for an emergency court order under
15 this section whenever the agency determines that a delay
16 until normal court hours would significantly increase the
17 danger the adult faces.
18 (b) Limited order.--The court, after finding clear and
19 convincing evidence of the need for an emergency order, shall
20 order only such services as are necessary to remove the
21 conditions creating the established need.
22 (c) Right to counsel.--In order to protect the rights of an
23 adult for whom protective services are being ordered, an
24 emergency court order under this section shall provide that the
25 adult has the right to legal counsel which shall be appointed by
26 the court at public expense.
27 (d) Forcible entry.--Where it is necessary to forcibly enter
28 premises after obtaining a court order, a law enforcement
29 officer may do so, accompanied by a representative of an agency.
30 (e) Health and safety requirements.--An agency shall take
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1 reasonable steps to assure that while an adult is receiving
2 services under an emergency court order, the health and safety
3 needs of any of the adult's dependents are met and that personal
4 property and the dwelling the adult occupies are secure.
5 (f) Community acute care hospitals.--An adult with medical
6 conditions requiring treatment shall be sent to a community
7 acute care hospital.
8 (g) Nonrestrictive setting.--In those cases in which an
9 adult must be relocated, the court shall order the adult to be
10 relocated to a setting that will ensure the adult's health and
11 safety and appropriate care. The adult may not be moved to a
12 setting more restrictive of individual liberties than the
13 setting from which that adult came, unless requested by the
14 adult.
15 (h) Exclusion of remedy.--Nothing in this chapter shall be
16 construed to deny an adult access to emergency medical services
17 or police protection that would be provided to anyone,
18 regardless of age, in similar circumstances.
19 Section 308. Rights of protective services clients.
20 (a) Minimum requirements.--The agency shall observe the
21 following minimum requirements to safeguard the rights of an
22 adult who is reported to be in need of protective services:
23 (1) The agency shall discreetly notify the adult during
24 the investigation that a report has been made and provide the
25 adult with a brief summary of the nature of the report.
26 (2) As provided under section 306(b)(3), the adult may
27 request and the agency shall provide additional information
28 contained in the report.
29 (3) Any denial of services by the department or an
30 authorized agency under this chapter shall be appealed
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1 according to the provisions of the rules and regulations
2 issued by the department under Article XXII-A of the act of
3 April 9, 1929 (P.L.177, No.175), known as The Administrative
4 Code of 1929.
5 (b) Construction.--Nothing in this act shall be construed to
6 limit the right of an adult to file a petition pursuant to 23
7 Pa.C.S. Ch. 61 (relating to protection from abuse).
8 Section 309. Financial obligations, liabilities and payments.
9 An adult receiving services and each agency providing
10 services under this chapter shall comply with the following
11 provisions regarding liability for the payment of services:
12 (1) Funding to provide or make available protective
13 services under this chapter shall not:
14 (i) Supplant any public and private entitlements or
15 resources for which adults receiving protective services
16 under this chapter are or may be eligible.
17 (ii) Be available until an adult has exhausted the
18 adult's eligibility and receipt of benefits under public
19 and private entitlements or resources.
20 (2) Funding available to local protective services
21 agencies under this chapter may be used to cover the costs of
22 activities including, but not limited to, the following:
23 (i) Administering protective services plans required
24 under section 301(c).
25 (ii) Receiving and maintaining records of reports of
26 abuse under section 302.
27 (iii) Conducting investigations of reported abuse
28 under section 303.
29 (iv) Carrying out client assessments and developing
30 service plans under sections 303 and 307.
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1 (v) Petitioning the court under sections 304 and
2 307, or other relevant acts or provisions of law.
3 (vi) Providing emergency involuntary intervention
4 under section 307.
5 (vii) Arranging for available services needed to
6 carry out service plans, including, as appropriate, the
7 arrangement for services for other household members in
8 order to reduce, correct or eliminate abuse, neglect,
9 exploitation or abandonment of an 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 adult when the services are not
14 available within the existing resources of the agency or
15 other appropriate provider. The purchase of services
16 under this subparagraph is limited to a 30-day period,
17 which period may be renewed with adequate justification
18 under regulations promulgated by the department.
19 (3) (i) The obligation of the Commonwealth and the
20 counties to provide funds to the department or any agency
21 for services provided pursuant to this chapter shall be
22 entirely discharged by the appropriations made to the
23 department or an agency.
24 (ii) Provided that the agency has met its
25 responsibility under the law, no action at law or equity
26 may be instituted in a court to require the department,
27 agency, county or Commonwealth to provide benefits or
28 services under this chapter for which appropriations from
29 the Commonwealth or counties are not available.
30 (4) Protective services clients receiving the same
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1 services provided to others under an agency services plan
2 shall not be required to pay a fee for any services not
3 subject to cost sharing for other adults.
4 Section 310. Regulations.
5 (a) General rule.--The department shall develop regulations
6 in collaboration with adults with disabilities and groups
7 representing adults with disabilities, their families and
8 advocates.
9 (b) Promulgation of regulations.--The department shall
10 promulgate rules and regulations to carry out this chapter and
11 shall be responsible for presenting to the General Assembly
12 annually a report on the program and services performed.
13 (c) Enforcement.--This chapter shall be enforced only after
14 promulgation of regulations by the department, which regulations
15 shall take effect no later than 12 months after the effective
16 date of this section, except that section 301 shall apply when
17 the agency certifies to the department that it is prepared to
18 fulfill its responsibilities. The certification shall be made
19 within 90 days following the effective date of the regulations.
20 Section 311. Funds for payment of administration of chapter.
21 Funds necessary to administer this chapter shall be provided
22 by annual appropriation by the General Assembly.
23 CHAPTER 5
24 REPORTING SUSPECTED ABUSE BY EMPLOYEES
25 Section 501. Reporting by employees.
26 (a) Mandatory reporting to agency.--
27 (1) An employee or an administrator who has reasonable
28 cause to suspect that a recipient is a victim of abuse or
29 neglect shall immediately make an oral report to an agency.
30 If applicable, the agency shall advise the employee or
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1 administrator of additional reporting requirements that may
2 pertain under subsection (b). An employee shall notify the
3 administrator immediately following the report to the agency.
4 (2) Within 48 hours of making the oral report, the
5 employee or administrator shall make a written report to the
6 agency. The agency shall notify the administrator that a
7 report of abuse has been made with the agency.
8 (3) The law enforcement officials shall notify the
9 administrator that a report has been made with the law
10 enforcement officials.
11 (4) The employee may request the administrator to make
12 or assist the employee to make oral and written reports to
13 law enforcement officials required by this subsection.
14 (b) Mandatory reports to law enforcement officials.--
15 (1) An employee or an administrator who has reasonable
16 cause to suspect that a recipient is the victim of sexual
17 abuse, serious physical injury or serious bodily injury or
18 that a death is suspicious shall, in addition to contacting
19 the agency and the department, immediately contact law
20 enforcement officials to make an oral report. An employee
21 shall notify the administrator immediately following the
22 report to law enforcement officials.
23 (2) Within 48 hours of making the oral report, the
24 employee and the administrator shall make a written report to
25 appropriate law enforcement officials.
26 (3) The law enforcement officials shall notify the
27 administrator that a report has been made with the law
28 enforcement officials.
29 (4) The employee may request the administrator to make
30 or to assist the employee to make the oral and written
20050H2269B3179 - 25 -
1 reports to law enforcement officials required by this
2 subsection.
3 (c) Contents of report.--A written report under this section
4 shall be submitted in a manner and on forms prescribed by the
5 department. The report shall include, at a minimum, the
6 following information:
7 (1) Name, age and address of the recipient.
8 (2) Name and address of the recipient's guardian,
9 attorney-in-fact or next of kin.
10 (3) Name and address of the facility.
11 (4) Nature of the alleged offense.
12 (5) Any specific comments or observations that are
13 directly related to the alleged incident and the individual
14 involved.
15 Section 502. Reports to department and coroner or medical
16 examiner.
17 (a) Department.--
18 (1) Within 48 hours of receipt of a written report under
19 section 501(a) involving sexual abuse, serious physical
20 injury, serious bodily injury or suspicious death, the agency
21 shall transmit a written report to the department.
22 Supplemental reports shall be transmitted as they are
23 obtained by the agency.
24 (2) A report under this subsection shall be made in a
25 manner and on forms prescribed by the department. The report
26 shall include, at a minimum, the following information:
27 (i) The name and address of the alleged victim.
28 (ii) The location where the suspected abuse
29 occurred.
30 (iii) The age and sex of the alleged perpetrator and
20050H2269B3179 - 26 -
1 victim.
2 (iv) The nature and extent of the suspected abuse,
3 including any evidence of prior abuse.
4 (v) The name and relationship of the individual
5 responsible for causing the alleged abuse to the victim,
6 if known, and any evidence of prior abuse by the
7 individual.
8 (vi) The source of the report.
9 (vii) The individual making the report and the
10 location where the individual can be reached.
11 (viii) The actions taken by the reporting source,
12 including the taking of photographs and x-rays, removal
13 of the recipient and notification under subsection (b).
14 (ix) Any other information that the department may
15 require by regulation.
16 (b) Coroner or medical examiner.--For a report under section
17 501(a) concerning the death of a recipient, if there is
18 reasonable cause to suspect that the recipient died as a result
19 of abuse or neglect, the agency shall give the oral report and
20 forward a copy of the written report to the appropriate coroner
21 or medical examiner within 24 hours.
22 Section 503. Investigation.
23 (a) Law enforcement officials.--Upon receipt of a report
24 under section 501(b), law enforcement officials shall conduct an
25 investigation to determine what criminal charges, if any, will
26 be filed.
27 (b) Notification.--If law enforcement officials have
28 reasonable cause to suspect that a recipient has suffered sexual
29 abuse, serious physical injury, serious bodily injury or a
30 suspicious death, law enforcement officials shall notify the
20050H2269B3179 - 27 -
1 agency.
2 (c) Cooperation.--To the fullest extent possible, law
3 enforcement officials, facilities and agencies shall coordinate
4 their respective investigations and advise each other and
5 provide any applicable additional information on an ongoing
6 basis.
7 (d) Further notification.--
8 (1) Law enforcement officials shall notify an agency and
9 facility of a decision regarding criminal charges.
10 (2) The agency and the department shall keep a record of
11 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 the
14 provisions of Chapter 3.
15 Section 504. Restrictions on employees.
16 (a) Plan of supervision.--
17 (1) On notification that an employee is alleged to have
18 committed abuse, the facility shall immediately implement a
19 plan of supervision or, where appropriate, suspend the
20 employee, subject to approval by the agency and by the
21 Commonwealth agency with regulatory authority over the
22 facility.
23 (2) A plan of supervision for a home health agency shall
24 include periodic random direct inspections of recipients by a
25 facility employee who has been continuously employed by the
26 facility for a period of at least one year.
27 (b) Prohibition.--
28 (1) On the filing of criminal charges against a
29 facility's employee, the Commonwealth agency that licenses,
30 regulates or has fiscal authority over the facility shall
20050H2269B3179 - 28 -
1 order the facility to immediately prohibit the employee from
2 having access to recipients at the facility.
3 (2) If the employee is a director, operator,
4 administrator or supervisor, the employee shall be subject to
5 restrictions deemed appropriate by the Commonwealth agency
6 that licenses, regulates or has fiscal authority over the
7 facility to assure the safety of the recipients of the
8 facility.
9 Section 505. Confidentiality of and access to confidential
10 reports.
11 (a) General rule.--A report under this chapter shall be made
12 available in the following circumstances:
13 (1) Information may be disclosed to a court of competent
14 jurisdiction or under a court order.
15 (2) If an investigation by an agency or law enforcement
16 results in a report of criminal conduct, law enforcement
17 officials shall have access to relevant records maintained by
18 the agency or the department.
19 (3) In arranging specific services to effect service
20 plans, an agency may disclose to appropriate service
21 providers information necessary to initiate the delivery of
22 services.
23 (4) A subject of a report may receive, upon written
24 request, information contained in the report except that
25 prohibited from being disclosed under paragraph (5).
26 (5) Except for reports to law enforcement officials, the
27 release of information that would identify the person who
28 made a report under this chapter or who cooperated in a
29 subsequent investigation is prohibited. Law enforcement
30 officials shall treat all reporting sources as confidential
20050H2269B3179 - 29 -
1 information.
2 (6) When the department is involved in the hearing of an
3 appeal by a subject of a report, the appropriate department
4 staff shall be given access to information in the report
5 record relevant to the appeal.
6 (7) For the purposes of monitoring agency performance,
7 appropriate staff of the department may be given access to
8 agency protective service records.
9 Section 506. Penalties.
10 (a) Administrative.--
11 (1) An administrator who intentionally or willfully
12 fails to comply or obstructs compliance with the provisions
13 of this chapter or intimidates or commits a retaliatory act
14 against an employee who complies in good faith with the
15 provisions of this chapter commits a violation of this
16 chapter and shall be subject to an administrative penalty
17 under paragraph (3).
18 (2) A facility owner that intentionally or willfully
19 fails to comply with or obstructs compliance with this
20 chapter or that intimidates or commits a retaliatory act
21 against an employee who complies in good faith with this
22 chapter commits a violation of this chapter and shall be
23 subject to an administrative penalty under paragraph (3).
24 (3) The Commonwealth agency or Commonwealth agencies
25 which regulate a facility shall have jurisdiction to
26 determine violations of this chapter and may issue an order
27 assessing a civil penalty of not more than $2,500. An order
28 under this paragraph is subject to 2 Pa.C.S. Ch. 5 Subch. A
29 (relating to practice and procedure of Commonwealth agencies)
30 and Ch. 7 Subch. A (relating to judicial review of
20050H2269B3179 - 30 -
1 Commonwealth agency action).
2 (b) Criminal.--
3 (1) An administrator who intentionally or willfully
4 fails to comply or obstructs compliance with this chapter
5 commits a misdemeanor of the third degree and shall, upon
6 conviction, be sentenced to pay a fine of $2,500 or to
7 imprisonment for not more than one year, or both.
8 (2) A facility owner that intentionally or willfully
9 fails to comply with or obstructs compliance with this
10 chapter commits a misdemeanor of the third degree and shall,
11 upon conviction, be sentenced to pay a fine of $2,500 or to
12 imprisonment for not more than one year, or both.
13 (c) Penalties for failure to report.--A person required
14 under this chapter to report a case of suspected abuse or
15 neglect who willfully fails to do so commits a summary offense
16 for the first violation and a misdemeanor of the third degree
17 for a second or subsequent violation.
18 (d) Whistleblower protection.--A person required under this
19 act to report a case of suspected abuse or neglect shall not be
20 subject to any retaliatory action for reporting suspected abuse
21 or neglect and shall have the protections and remedies set forth
22 in the act of December 12, 1986 (P.L.1559, No.169), known as the
23 Whistleblower Law.
24 Section 507. Immunity.
25 No administrator or facility shall be held civilly liable for
26 any action directly related to good faith compliance with this
27 chapter.
28 Section 508. Regulations.
29 The department, the Department of Health and the Department
30 of Public Welfare shall promulgate the regulations necessary to
20050H2269B3179 - 31 -
1 carry out this chapter.
2 CHAPTER 7
3 MISCELLANEOUS PROVISIONS
4 Section 701. Repeals.
5 All acts and parts of acts are repealed insofar as they are
6 inconsistent with this act.
7 Section 702. Effective date.
8 This act shall take effect in six months.
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