PRINTER'S NO. 864
No. 737 Session of 2007
INTRODUCED BY DeLUCA, BELFANTI, BENNINGTON, BIANCUCCI,
CALTAGIRONE, FREEMAN, GEIST, GINGRICH, HORNAMAN, JAMES,
MENSCH, SIPTROTH AND SOLOBAY, MARCH 19, 2007
REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES,
MARCH 19, 2007
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, for
10 grounds for denying employment and for applicability relating
11 to criminal history for employees.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Section 102 of the act of November 6, 1987
15 (P.L.381, No.79), known as the Older Adults Protective Services
16 Act, is amended to read:
17 Section 102. Legislative policy.
18 It is declared the policy of the Commonwealth of Pennsylvania
19 that older adults who lack the capacity to protect themselves
20 and are at imminent risk of abuse, neglect, exploitation or
21 abandonment shall have access to and be provided with services
1 necessary to protect their health, safety and welfare. It is not
2 the purpose of this act to place restrictions upon the personal
3 liberty of incapacitated older adults, but this act should be
4 liberally construed to assure the availability of protective
5 services to all older adults in need of them. Such services
6 shall safeguard the rights of incapacitated older adults while
7 protecting them from abuse, neglect, exploitation and
8 abandonment. It is the intent of the General Assembly to provide
9 for the detection and reduction, correction or elimination of
10 abuse, neglect, exploitation and abandonment, and to establish a
11 program of protective services for older adults in need of them.
12 It is further declared the policy of the Commonwealth that
13 the commission of any offense that constitutes serious physical
14 harm, a threat of serious physical harm or conduct which
15 evidences a reckless disregard for the vulnerability of care-
16 dependent populations, legitimately warrants a lifetime ban on
17 employment in facilities covered under this act. Further, for
18 facilities covered under this act, it is the policy of the
19 Commonwealth that the commission of any offenses related to
20 misappropriation or misuse of property or convictions which
21 involved inappropriate or irresponsible behavior legitimately
22 warrants a ban on employment for a period of ten years
23 immediately preceding the date of the report, not including any
24 time spent in incarceration.
25 Section 2. The definition of "employee" in section 103 of
26 the act, amended December 18, 1996 (P.L.1125, No.169), is
27 amended to read:
28 Section 103. Definitions.
29 The following words and phrases when used in this act shall
30 have the meanings given to them in this section unless the
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1 context clearly indicates otherwise:
2 * * *
3 "Employee." [An individual who is employed by a facility.
4 The term includes contract employees who have direct contact
5 with residents or unsupervised access to their personal living
6 quarters. The term includes any person who is employed or who
7 enters into a contractual relationship to provide care to a
8 care-dependent individual for monetary consideration in the
9 individual's place of residence.] An individual who has direct
10 contact with recipients or unsupervised access to their living
11 quarters and is either employed by a facility or a contract
12 employee. The term includes any person who is employed or who
13 enters into a contractual relationship to provide care to a
14 care-dependent individual for monetary consideration in the
15 individual's place of residence.
16 * * *
17 Section 3. Section 307(a) of the act, amended December 18,
18 1996 (P.L.1125, No.169), is amended to read:
19 Section 307. Involuntary intervention by emergency court order.
20 (a) Emergency petition.--[Where there was clear and
21 convincing evidence that if protective services are not
22 provided, the person to be protected is at imminent risk of
23 death or serious physical harm, the agency may petition the
24 court for an emergency order to provide the necessary services.]
25 An agency may petition a court of common pleas for an emergency
26 order to provide protective services to an older adult who is at
27 imminent risk of death or serious physical harm. The court of
28 common pleas shall grant the agency's petition if it finds, by a
29 preponderance of the evidence, that if protective services are
30 not provided, the older adult is at imminent risk of death or
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1 serious physical harm. The courts of common pleas of each
2 judicial district shall ensure that a judge or district justice
3 is available on a 24-hour-a-day, 365-day-a-year basis to accept
4 and decide on petitions for an emergency court order under this
5 section whenever the agency determines that a delay until normal
6 court hours would significantly increase the danger the older
7 adult faces.
8 * * *
9 Section 4. Section 503(a) of the act, amended June 9, 1997
10 (P.L.160, No.13), is amended and the section is amended by
11 adding subsections to read:
12 Section 503. Grounds for denying employment.
13 [(a) General rule.--In no case shall a facility hire an
14 applicant or retain an employee required to submit information
15 pursuant to section 502(a) if the applicant's or employee's
16 criminal history record information indicates the applicant or
17 employee has been convicted of any of the following offenses:
18 (1) An offense designated as a felony under the act of
19 April 14, 1972 (P.L.233, No.64), known as The Controlled
20 Substance, Drug, Device and Cosmetic Act.
21 (2) An offense under one or more of the following
22 provisions of 18 Pa.C.S. (relating to crimes and offenses):
23 Chapter 25 (relating to criminal homicide).
24 Section 2702 (relating to aggravated assault).
25 Section 2901 (relating to kidnapping).
26 Section 2902 (relating to unlawful restraint).
27 Section 3121 (relating to rape).
28 Section 3122.1 (relating to statutory sexual
29 assault).
30 Section 3123 (relating to involuntary deviate sexual
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1 intercourse).
2 Section 3124.1 (relating to sexual assault).
3 Section 3125 (relating to aggravated indecent
4 assault).
5 Section 3126 (relating to indecent assault).
6 Section 3127 (relating to indecent exposure).
7 Section 3301 (relating to arson and related
8 offenses).
9 Section 3502 (relating to burglary).
10 Section 3701 (relating to robbery).
11 A felony offense under Chapter 39 (relating to theft
12 and related offenses) or two or more misdemeanors under
13 Chapter 39.
14 Section 4101 (relating to forgery).
15 Section 4114 (relating to securing execution of
16 documents by deception).
17 Section 4302 (relating to incest).
18 Section 4303 (relating to concealing death of child).
19 Section 4304 (relating to endangering welfare of
20 children).
21 Section 4305 (relating to dealing in infant
22 children).
23 Section 4952 (relating to intimidation of witnesses
24 or victims).
25 Section 4953 (relating to retaliation against witness
26 or victim).
27 A felony offense under section 5902(b) (relating to
28 prostitution and related offenses).
29 Section 5903(c) or (d) (relating to obscene and other
30 sexual materials and performances).
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1 Section 6301 (relating to corruption of minors).
2 Section 6312 (relating to sexual abuse of children).
3 (3) A Federal or out-of-State offense similar in nature
4 to those crimes listed in paragraphs (1) and (2).]
5 (a.1) Lifetime bans.--In no case shall a facility hire an
6 applicant required to submit information pursuant to section
7 502(a) or retain an employee required to submit information
8 pursuant to section 508, if the applicant's or employee's
9 criminal history record information indicates the applicant or
10 employee has been convicted of any of the following offenses:
11 (1) An offense under one of the following provisions of
12 18 Pa.C.S. (relating to crimes and offenses) which is graded
13 as a felony:
14 Chapter 25 (relating to criminal homicide).
15 Section 2702 (relating to aggravated assault).
16 Section 2709 (relating to harassment).
17 Section 2709.1 (relating to stalking).
18 Section 2713 (relating to neglect of care-dependent
19 person).
20 Section 2901 (relating to kidnapping).
21 Section 3121 (relating to rape).
22 Section 3123 (relating to involuntary deviate sexual
23 intercourse).
24 Section 3124.1 (relating to sexual assault).
25 Section 3125 (relating to aggravated indecent
26 assault).
27 Section 3301 (relating to arson and related
28 offenses).
29 Section 3701 (relating to robbery).
30 Section 4304 (relating to endangering welfare of
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1 children).
2 Section 6312 (relating to sexual abuse of children).
3 (2) An offense under one of the following provisions of
4 18 Pa.C.S. which is graded as a misdemeanor:
5 Section 2713 (relating to neglect of care-dependent
6 person).
7 Section 3126 (relating to indecent assault).
8 (3) A Federal or out-of-State offense similar in nature
9 to any offense listed in paragraph (1) or (2).
10 (a.2) Ten-year ban.--In no case may a facility hire an
11 applicant required to submit information pursuant to section
12 502(a) or retain an employee required to submit information
13 pursuant to section 508 if the applicant's or employee's
14 criminal history record information indicates the applicant or
15 employee has been convicted, within ten years immediately
16 preceding the date of the report, not including any time spent
17 in incarceration, of any of the following offenses:
18 (1) An offense graded a felony under the act of April
19 14, 1972 (P.L.233, No.64), known as The Controlled Substance,
20 Drug, Device and Cosmetic Act.
21 (2) 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 felony:
24 Section 3122.1 (relating to statutory sexual
25 assault).
26 Section 3502 (relating to burglary).
27 Section 3921 (relating to theft by unlawful taking or
28 disposition).
29 Section 3922 (relating to theft by deception).
30 Section 3923 (relating to theft by extortion).
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1 Section 3924 (relating to theft of property lost,
2 mislaid, or delivered by mistake).
3 Section 3925 (relating to receiving stolen property).
4 Section 3926 (relating to theft of services).
5 Section 3927 (relating to theft by failure to make
6 required disposition of funds received).
7 Section 3929 (relating to retail theft), if there are
8 two or more convictions thereunder.
9 Section 3934 (relating to theft from a motor
10 vehicle).
11 Section 4101 (relating to forgery).
12 Section 4952 (relating to intimidation of witnesses
13 or victims).
14 Section 4953 (relating to retaliation against
15 witness, victim or party).
16 Section 5902 (relating to prostitution and related
17 offenses).
18 Section 6301(a)(1) (relating to corruption of
19 minors).
20 (3) An offense under one of the following provisions of
21 18 Pa.C.S. (relating to crimes and offenses) which is graded
22 as a misdemeanor:
23 Section 2504 (relating to involuntary manslaughter).
24 Section 2902 (relating to unlawful restraint).
25 Section 3127 (relating to indecent exposure).
26 Section 3921 (relating to theft by unlawful taking or
27 disposition).
28 Section 3922 (relating to theft by deception).
29 Section 3923 (relating to theft by extortion).
30 Section 3927 (relating to theft by failure to make
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1 required disposition of funds received).
2 Section 3929 (relating to retail theft), if there are
3 two or more convictions thereunder.
4 Section 4101 (relating to forgery).
5 Section 4114 (relating to securing execution of
6 documents by deception).
7 Section 4302 (relating to incest).
8 Section 4303 (relating to concealing death of child).
9 Section 4305 (relating to dealing in infant
10 children).
11 (4) A Federal or out-of-State offense similar to any
12 offense listed in paragraph (1), (2) or (3).
13 * * *
14 (d) Right of review.--An applicant or employee may review,
15 challenge and appeal the completeness or accuracy of that
16 applicant's or employee's criminal history report under 18
17 Pa.C.S. Ch. 91 (relating to criminal history record
18 information). An applicant or employee may challenge the
19 conviction comparison interpretation of the department involving
20 the Federal criminal history record by filing an appeal with the
21 department in accordance with 2 Pa.C.S. (relating to
22 administrative law and procedure).
23 Section 5. Section 508 of the act, amended June 9, 1997
24 (P.L.160, No.13), is amended to read:
25 Section 508. Applicability.
26 This chapter shall apply as follows:
27 (1) An individual who, on the effective date of this
28 chapter, has continuously for a period of one year been an
29 employee of the same facility shall be exempt from [section
30 502] sections 502 and 503 as a condition of continued
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1 employment.
2 (2) If an employee is not exempt under paragraph (1),
3 the employee and the facility shall comply with [section 502]
4 sections 502 and 503 within one year of the effective date of
5 this chapter.
6 (3) If an employee who is exempt under paragraph (1)
7 seeks employment with a different facility, the employee and
8 the facility shall comply with [section 502] sections 502 and
9 503.
10 (4) An employee who has obtained the information
11 required under section 502 or 503 may transfer to another
12 facility established and supervised by the same owner and is
13 not required to obtain additional reports before making the
14 transfer.
15 Section 6. The provisions of this act are severable. If any
16 provision of this act or its application to any person or
17 circumstance is held invalid, the invalidity shall not affect
18 other provisions or applications of this act which can be given
19 effect without the invalid provision or application.
20 Section 7. This act shall take effect as follows:
21 (1) The amendment of section 508(2) of the act shall
22 take effect in 120 days.
23 (2) This section shall take effect immediately.
24 (3) The remainder of this act shall take effect in 60
25 days.
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