PRIOR PRINTER'S NO. 802

PRINTER'S NO.  1888

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

699

Session of

2009

  

  

INTRODUCED BY VANCE, ERICKSON, MELLOW, WASHINGTON, BAKER, O'PAKE, ORIE, ALLOWAY, STACK, BROWNE, TARTAGLIONE, RAFFERTY, MUSTO, ROBBINS, TOMLINSON, COSTA, WAUGH, PICCOLA, KASUNIC, KITCHEN, PIPPY, WONDERLING, FERLO, BOSCOLA, EICHELBERGER, FONTANA, GREENLEAF, LOGAN, YAW, FARNESE, LEACH AND DINNIMAN, APRIL 1, 2009

  

  

SENATOR WARD, AGING AND YOUTH, AS AMENDED, APRIL 21, 2010   

  

  

  

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 prescribing penalties.

6

TABLE OF CONTENTS

7

Chapter 1.  Preliminary Provisions

8

Section 101.  Short title.

9

Section 102.  Legislative policy.

10

Section 103.  Definitions.

11

Chapter 3.  Administration

12

Section 301.  Duties of department and agencies.

13

Section 302.  Reporting.

14

Section 303.  Investigations of reports of need for protective

15

services.

16

Section 304.  Provision of services.

17

Section 305.  Immunity from civil and criminal liability.

 


1

Section 306.  Confidentiality of records.

2

Section 307.  Involuntary intervention by emergency court order.

3

Section 308.  Rights of protective services clients.

4

Section 309.  Financial obligations, liabilities and payments.

5

Chapter 5.  Reporting Suspected Abuse by Employees

6

Section 501.  Reporting by employees.

7

Section 502.  Reports to department and coroner or medical

8

examiner.

9

Section 503.  Investigation.

10

Section 504.  Restrictions on employees.

11

Section 505.  Confidentiality of and access to confidential

12

reports.

13

Section 506.  Penalties.

14

Section 507.  Immunity.

15

Chapter 7.  Miscellaneous Provisions

16

Section 701.  Regulations.

17

Section 702.  Report.

18

Section 703.  Repeals.

19

Section 704.  Effective date.

20

The General Assembly of the Commonwealth of Pennsylvania

21

hereby enacts as follows:

22

CHAPTER 1

23

PRELIMINARY PROVISIONS

24

Section 101.  Short title.

25

This act shall be known and may be cited as the Adult

26

Protective Services Act.

27

Section 102.  Legislative policy.

28

It is declared the policy of this Commonwealth that:

29

(1)  Adults who lack the capacity to protect themselves

30

and are at imminent risk of abuse, neglect, exploitation or

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1

abandonment must have access to services necessary to protect

2

their health, safety and welfare.

3

(2)  Adults have the right to make choices, subject to

4

the laws and regulations of the Commonwealth, regarding their

5

lifestyles, relationships, bodies and health, even when those

6

choices present risks to themselves or their property.

7

(3)  Adults have the right to refuse some or all

8

protective services.

9

(4)  Information about protective services should be

10

provided in a safe place and in a safe, understandable and

11

responsive manner.

12

(5)  The Commonwealth must provide for the detection,

13

prevention, reduction and elimination of abuse, neglect,

14

exploitation and abandonment and establish a program of

15

protective services for adults in need of them.

16

(6)  Adults have the right to receive services in the

17

most integrated settings and in the manner least restrictive

18

of individual liberties.

19

Section 103.  Definitions.

20

The following words and phrases when used in this act shall

21

have the meanings given to them in this section unless the

22

context clearly indicates otherwise:

23

"Abandonment."  The desertion of an adult by a caregiver.

24

"Abuse."  The occurrence of one or more of the following

25

acts:

26

(1)  The infliction of injury, unreasonable confinement,

27

intimidation or punishment with resulting physical harm, pain

28

or mental anguish.

29

(2)  The willful deprivation by a caregiver of goods or

30

services which are necessary to maintain physical or mental

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1

health.

2

(3)  Sexual harassment, rape or "abuse" as defined in 23

3

Pa.C.S. § 6102 (relating to definitions).

4

The term does not include environmental factors which are beyond

5

the control of an adult or caregiver, including, but not limited

6

to, inadequate housing, furnishings, income, clothing or medical

7

care.

8

"Administrator."  The person responsible for the

9

administration of a facility. The term includes a person

10

responsible for employment decisions or an independent

11

contractor.

12

"Adult."  A resident of this Commonwealth between 18 and 59

13

years of age who has a physical or mental impairment that

14

substantially limits one or more major life activities.

15

"Adult in need of protective services."  An adult who needs

16

the assistance of another person to obtain protective services

17

in order to prevent imminent risk to person or property.

18

"Agency."  A local contracted provider of protective

19

services.

20

"Assessment."  Social, physical and psychological findings

21

along with a description of the person's current resources and

22

needs.

23

"Caregiver."  An individual or institution that has assumed

24

the responsibility for the provision of care needed to maintain

25

the physical or mental health of an adult. This responsibility

26

may arise voluntarily, by contract, by receipt of payment for

27

care, as a result of family relationship or by order of a court

28

of competent jurisdiction. It is not the intent of this act to

29

impose responsibility on any individual if the responsibility

30

would not otherwise exist in law.

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1

"Court."  A court of common pleas or a district magistrate

2

court, where applicable.

3

"Department."  The Department of Public Welfare of the

4

Commonwealth.

5

"Employee."  An individual who is employed by a facility. The

6

term includes:

7

(1)  A contract employee who has direct contact with

8

residents or unsupervised access to their personal living

9

quarters.

10

(2)  A person who is employed or who enters into a

11

contractual relationship to provide care to an adult for

12

monetary consideration in the adult's place of residence.

13

"Exploitation."  An act or course of conduct by a caregiver

14

or other person against an adult or an adult's resources,

15

without the informed consent of the adult or with consent

16

obtained through misrepresentation, coercion or threats of

17

force, that results in monetary, personal or other benefit, gain

18

or profit for the perpetrator or monetary or personal loss to

19

the adult.

20

"Facility."  The term includes, but is not limited to:

21

(1)  An assisted living residence as defined in section

22

1001 of the act of June 13, 1967 (P.L.31, No.21), known as

23

the Public Welfare Code.

24

(2)  A domiciliary care home as defined in section

25

2202-A of the act of April 9, 1929 (P.L.177, No.175), known

26

as The Administrative Code of 1929.

27

(3)  A home health care agency as defined in section

28

802.1 of the act of July 19, 1979 (P.L.130, No.48), known as

29

the Health Care Facilities Act.

30

(4)  An intermediate care facility for people with mental

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1

retardation.

2

(5)  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

(6)  An older adult daily living center as defined in

6

section 2 of the act of July 11, 1990 (P.L.499, No.118),

7

known as the Older Adult Daily Living Centers Licensing Act.

8

(7)  A personal care home as defined in section 1001 of

9

the act of June 13, 1967 (P.L.31, No.21), known as the Public

10

Welfare Code.

11

(8)  An organization or group of people that uses public

12

funds and is paid, in part, to provide care and support to

13

adults in a licensed or unlicensed setting.

14

(9)  A residential treatment facility.

15

"Incident Reporting System."  Home and Community Services

16

Information System (HCSIS) or its successor.

17

"Intimidation."  An act or omission by a person or entity

18

toward another person which is intended to or with knowledge

19

that the act or omission will obstruct, impede, impair, prevent

20

or interfere with the administration of this act or any law

21

intended to protect adults from mistreatment.

22

"Law enforcement official."  These shall include:

23

(1)  A police officer of a municipality.

24

(2)  A district attorney.

25

(3)  The Pennsylvania State Police.

26

(4)  A county sheriff.

27

(5)  The Attorney General.

28

"Least restrictive alternative."  The least intrusive service

29

or environment that can effectively and safely address the

30

adult's needs and preferences.

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1

"Most integrated setting."  A setting that enables

2

individuals with disabilities to interact with individuals who

3

do not have disabilities to the fullest extent possible.

4

"Neglect."  The failure to provide for oneself or the failure

5

of a caregiver to provide goods, care or services essential to

<--

6

avoid a clear and serious threat to the physical or mental

7

health of an adult. The term does not include environmental

8

factors that are beyond the control of an adult or the

9

caregiver, including, but not limited to, inadequate housing,

10

furnishings, income, clothing or medical care.

11

"Protective services."  Those activities, resources and

12

supports provided to adults under this act to detect, prevent,

13

reduce or eliminate abuse, neglect, exploitation and

14

abandonment.

15

"Recipient."  An adult who receives care, services or

16

treatment in or from a facility.

17

"Secretary."  The Secretary of Public Welfare of the

18

Commonwealth.

19

"Serious bodily injury."  Injury that:

20

(1)  creates a substantial risk of death; or

21

(2)  causes serious permanent disfigurement or protracted

22

loss or impairment of the function of a body member or organ.

23

"Serious injury."  An injury that:

24

(1)  causes a person severe pain; or

25

(2)  significantly impairs a person's physical or mental

26

functioning, either temporarily or permanently.

27

"Service plan."  A written plan that:

28

(1)  Is cooperatively developed by an agency staff, an

29

adult in need of protective services or the adult's appointed

30

guardian, if any, and other family members and advocates when

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1

appropriate.

2

(2)  Where possible, is based on multidisciplinary,

3

comprehensive written assessments conducted by professionals

4

who have met with the adult in need of protective services

5

and are familiar with their situation.

6

(3)  Provides for services in the most integrated setting

7

and utilizes least restrictive alternatives.

8

(4)  Describes identified needs, goals to be achieved and

9

specific services to support goal attainment, with regular

10

follow-up and predetermined reassessment of client progress.

11

(5)  Is updated as needed.

12

"Sexual abuse."  Intentionally, knowingly or recklessly

13

causing or attempting to cause rape, involuntary deviate sexual

14

intercourse, sexual assault, statutory sexual assault,

15

aggravated indecent assault or incest, as defined by 18 Pa.C.S. 

16

(relating to crimes and offenses).

17

CHAPTER 3

18

ADMINISTRATION

19

Section 301.  Duties of department and agencies.

20

(a)  General rule.--

21

(1)  The department shall administer the adult protective

22

services program in a manner designed to utilize least

23

restrictive alternatives and to ensure services are provided

24

in the most integrated setting.

25

(2)  The department shall, in consultation with other

26

appropriate State agencies, define the geographic areas to be

27

served by agencies and shall select those agencies based upon

28

a competitive bidding process. Successful bidders must:

29

(i)  Demonstrate knowledge of and experience working

30

with adults.

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1

(ii)  Be separate from agencies providing direct

2

services to adults and from county mental health and

3

mental retardation programs.

4

(iii)  Demonstrate knowledge of service delivery

5

principles important to adults and their families such as

6

individual choice and use of the least restrictive

7

alternative.

8

(iv)  Demonstrate that the program will be advised by

9

a body that includes at least 51% representation of

10

adults and their family members.

11

(v)  Include letters of support that show

12

collaboration with entities which advocate for adults.

13

(3)  The department shall establish, by regulation,

14

procedures to ensure no conflict of interest in the provision

15

of adult protective services.

16

(4)  The department shall conduct an ongoing campaign

17

designed to inform and educate adults, families, caregivers,

18

professionals and the general public about the need for and

19

availability of protective services under this chapter. The

20

campaign shall require facilities to post notice of the

21

availability of protective services and to provide the notice

22

to recipients and their families. The department shall

23

consult with other departments of the Commonwealth on the

24

design and implementation of the ongoing public awareness

25

campaign. The department shall also consider the concerns of

26

agencies and entities identified by them under subsection

27

(b).

28

(5)  The department shall establish, by regulation,

29

minimum standards of training and experience that agencies

30

funded by the department shall follow in the selection and

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1

assignment of staff for the provision of protective services.

2

The standards shall require agencies to collaborate with

3

adults, their families and advocates, and the standards shall

4

be included in developing and delivering training.

5

(6)  The department shall ensure that agencies have

6

access to the incident reporting system.

7

(7)  The department shall work with the Department of

<--

8

Aging to provide coordination with the Older Adults

9

Protective Services system and to ensure that adults who are

10

the subject of a protective services report at the time of

11

their 60th birthday have continuity in the delivery of

12

protective services.

13

(b)  Agency duties.--Each agency shall submit a proposal that

14

includes a protective services plan. The plan shall:

15

(1)  Describe the implementation of this chapter,

16

including, but not limited to, the organization, staffing,

17

mode of operations and financing of protective services, as

18

well as the provisions made for purchase of services,

19

interagency relations, interagency agreements, service

20

referral mechanisms and locus of responsibility for cases

21

with multiservice agency needs.

22

(2)  Describe the methods that the agency, its designees

23

and service providers will use to assure the privacy of all

24

adults receiving services and the confidentiality of all

25

records.

26

(3)  List all other social service entities, whether

27

public or private, that have been identified by the agency as

28

having substantial contact with potential victims or

29

perpetrators of abuse, neglect, exploitation and abandonment.

30

(4)  Ensure that the entities have information regarding

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1

the unique aspects of various disabilities.

2

The agency shall submit the list to the department for purposes

3

of the public information campaign under subsection (a).

4

(c)  Discretionary authority of the department.--The

<--

5

department may, in its sole discretion, perform any duty granted

6

to an agency in any geographic area by this act until an agency

7

has been selected by the department and is operating to serve

8

that geographic area pursuant to subsection (a)(2).

9

Section 302.  Reporting.

10

(a)  General rule.--A person having reasonable cause to

11

believe that an adult is in need of protective services may

12

report such information to the agency. Where applicable, reports

13

shall comply with the provisions of Chapter 5.

14

(b)  Receiving reports.--The agency shall be capable of

15

receiving reports of adults in need of protective services 24

16

hours a day, seven days a week, including holidays. This

17

capability may include the use of a local emergency response

18

system or a crisis intervention agency, provided that access can

19

be made to a protective services caseworker in appropriate

20

emergency situations as set forth in regulations promulgated by

21

the department. All reports received orally under this section

22

shall be reduced to writing immediately by the person who

23

receives the report.

24

(c)  Screening.--A person who receives a report shall screen

25

the report during and immediately following receipt of the

26

report to assign it to one of the following referral categories:

27

(1)  Priority. A report placed in this category shall

28

require immediate attention because specific details in the

29

report indicate the possibility that the adult reported to

30

need protective services is at imminent risk of death or

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1

serious injury or serious bodily injury. The person receiving

2

a priority report shall immediately contact a protective

3

services caseworker and provide the caseworker with the

4

information contained in the report.

5

(2)  Nonpriority. A report shall be placed in this

6

category when it does not appropriately fall within the

7

priority category and, therefore, does not require immediate

8

attention by the agency. A report in this category shall be

9

referred to a protective services caseworker of an agency

10

within the normal business hours of the agency's current or

11

next day of business under the agency's established

12

procedures for referring these reports.

13

(3)  Another planning and service area. A report in which

14

the adult who is the subject of the report does not reside in

15

the planning and service area of the agency or, at that time,

16

is not in the planning and service area shall be placed in

17

this category. The report shall be referred to the agency

18

that has the designated responsibility for protective

19

services in the planning and service area in which the adult

20

reported to be in need of protective services is located at

21

the time of the report. A report in this category shall also

22

meet the criteria for placement in one of the other

23

categories in this subsection. The provisions for referral

24

for the other category shall apply to a referral to another

25

planning and service area.

26

(4)  No need for protective services. A report shall be

27

placed in this category when the person reported to be in

28

need of protective services meets either of the following

29

criteria:

30

(i)  has the capacity to perform or obtain, without

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1

help, services necessary to maintain physical or mental

2

health;

3

(ii)  is not at imminent risk or danger to his person

4

or property.

5

A report in this category shall be referred to a protective

6

services caseworker of the agency within the normal business

7

hours of the agency's current or next day of business. The

8

protective services caseworker shall review the details of

9

the report and take all steps necessary to confirm or reject

10

the categorization of no need for protective services. If the

11

caseworker confirms the screening categorization, and upon

12

the request of any interested party and without objection by

13

the adult appropriate referrals shall be made to other

14

entities. The protective services case shall then be closed.

15

If the caseworker rejects the categorization, the report

16

shall be placed in the appropriate category and shall be

17

handled accordingly. A report may not be placed in this

18

category if the adult is temporarily relocated to a safe

19

environment and will return to the original abusive situation

20

or to a new location which has not been determined to be

21

safe.

22

(d)  Retaliatory action.--

23

(1)  Any person who makes a report or cooperates with the

24

agency, including providing testimony in any administrative

25

or judicial proceeding, and any adult in need of protective

26

services shall not be subject to any discriminatory,

27

retaliatory or disciplinary action by an employer or by any

28

other person or entity.

29

(2)  Any person who violates this subsection is subject

30

to a civil action by the reporter or the adult in need of

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1

protective services, in which action the reporter or adult in 

2

need of protective services shall recover treble compensatory

3

damages, compensatory and punitive damages or $5,000,

4

whichever is greater.

5

(e)  Intimidation.--

6

(1)  A person, including an adult in need of protective

7

services, with knowledge sufficient to justify making a

8

report or cooperating with an agency, including possibly

9

providing testimony in an administrative or judicial

10

proceeding, shall not be subject to any intimidation by an

11

employer or by any other person or entity.

12

(2)  A person who violates this subsection is subject to

13

civil action by the reporter or the adult in need of

14

protective services, in which action the reporter or adult in

15

need of protective services shall recover treble compensatory

16

damages, compensatory and punitive damages or $5,000,

17

whichever is greater.

18

(f)  Immunity.--

19

(1)  A person who participates in the making of a report

20

or who provides testimony in an administrative or judicial

21

proceeding arising out of a report shall be immune from any

22

civil or criminal liability, subject to paragraph (2), on

23

account of the report or testimony, unless the person acted

24

in bad faith or with malicious purpose.

25

(2)  The immunity established under paragraph (1) shall

26

not extend to liability for an act of abuse, neglect,

27

exploitation or abandonment even if such act is the subject

28

of the report or testimony.

29

Section 303.  Investigations of reports of need for protective

30

services.

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1

(a)  Investigation.--

2

(1)  An agency shall investigate each report made under

3

section 302.

4

(2)  The investigation shall be initiated immediately for

5

a priority report, and to the extent feasible, the agency

6

shall conduct a face-to-face interview with the reported

7

adult in need of protective services.

8

(3)  The investigation shall be initiated within 72 hours

9

for a nonpriority report.

10

(4)  The department shall adopt regulations providing for

11

the methods of conducting investigations under this section

12

and shall assure that steps are taken to avoid any conflict

13

of interest between the investigator and service delivery

14

functions.

15

(5)  Reports and investigations conducted under this

16

section shall comply with the provisions of Chapter 5, where

17

applicable.

18

(b)  Investigation involving licensed facilities.--

19

(1)  A report concerning adults residing in a State-

20

licensed facility shall be reported to the appropriate State 

21

licensing department and investigated under procedures

22

developed by the department in consultation with the bureau

23

responsible for the licensure of the facility.

24

(2)  The protective services agency may seek judicial

25

relief to require the facility to protect the health and

26

safety of the adult when the licensed program is believed to

27

continue to jeopardize the adult's health and safety through

28

evidence of risk substantiated.

29

(c)  Unsubstantiated reports.--If after investigation by the

30

agency a report is unsubstantiated, the case shall be closed,

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1

and all information shall be maintained for a period of one year

2

under procedures established by the department.

3

(d)  Substantiated reports.--

4

(1)  The agency shall provide for a timely assessment of

5

the adult if a report is substantiated by the agency or if an

6

assessment is necessary in order to determine whether the

7

report is substantiated. An adult may refuse the assessment.

8

(2)  Upon completion of the assessment, written findings

9

shall be prepared that include recommended action. A service

10

plan shall be developed and shall:

11

(i)  Provide for the least restrictive alternative

12

and encourage choice and continuity of care.

13

(ii)  Assure that services and supports are provided

14

in the most integrated setting.

15

(iii)  Absent a court order, not include the

16

relocation of the adult unless the adult consents.

17

(iv)  Be written in plain language whenever possible

18

and prepared in a manner which can be easily understood

19

by an adult in need of protective services or that

20

adult's appointed guardian.

21

(v)  Be in writing and include a recommended course

22

of action that may include the pursuit of civil or

23

criminal remedies.

24

(3)  If an adult who is found to be in need of protective

25

services refuses an assessment or the development of a

26

service plan, the agency may apply to the case the provisions

27

of section 307.

28

Section 304.  Provision of services.

29

(a)  Availability of protective services.--Once need is

30

determined, an agency shall offer protective services if an

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1

adult requests services or an interested person requests

2

services on behalf of an adult.

3

(b)  Consent by request.--

4

(1)  Except as provided in section 307, an adult shall

5

only receive protective services voluntarily. In no event may

6

protective services be provided under this chapter to an

7

adult who refuses consent to the services or who, having

8

consented, withdraws the consent, unless the services are

9

ordered by a court or provided under section 307.

10

(2)  Nothing in this chapter shall be construed to

11

prevent an agency from petitioning for the appointment of a

12

guardian pursuant to 20 Pa.C.S. (relating to decedents,

13

estates and fiduciaries).

14

(c)  Interference with services.--If any person interferes

15

with the provision of services or the right of an adult to

16

consent to provision of services, the agency may petition the

17

court for an order enjoining the interference.

18

(d)  Access to records.--An agency shall have access to all

19

records relevant to:

20

(1)  Investigations of reports under section 303.

21

(2)  Assessment of client need.

22

(3)  Development of a service plan when an adult's need

23

for protective services has been or is being established.

24

(4)  Delivery of services arranged for under the service

25

plan developed by the agency to respond to an adult's

26

assessed need for specific services.

27

(e)  Access to persons.--An agency shall have access to

28

adults who have been reported to be in need of protective

29

services in order to:

30

(1)  Investigate reports under section 303 and Chapter 5.

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1

(2)  Assess needs and develop a service plan for

2

addressing them.

3

(3)  Provide for the delivery of services by the agency

4

or other service provider arranged for under the service

5

plan.

6

(f)  Denial of access to persons.--If the agency is denied

7

access to an adult reported to be in need of protective services

8

and access is necessary to complete the investigation or the

9

assessment and service plan or the delivery of needed services

10

in order to prevent further abuse, neglect, exploitation or

11

abandonment of the adult, the agency may petition the court for

12

an order to require the appropriate access when either of the

13

following conditions apply:

14

(1)  The caregiver or a third party has interfered with

15

the completion of the investigation or the assessment and

16

service plan or the delivery of services.

17

(2)  The agency can demonstrate that the adult denies

18

access because of coercion, extortion or justifiable fear of

19

further abuse, neglect, exploitation or abandonment.

20

(g)  Access by consent.--An agency's access to confidential

21

records held by other entities or individuals or an adult

22

reported to be in need of protective services shall require the

23

consent of the adult or a court-appointed guardian except as

24

provided for under this section or section 307.

25

(h)  Denial of access to records.--If the agency is denied

26

access to records necessary for completion of a proper

27

investigation of a report, assessment, service plan or the

28

delivery of needed services in order to prevent further abuse,

29

neglect, exploitation or abandonment of the adult reported to be

30

in need of protective services, the agency may petition the

- 18 -

 


1

court of common pleas for an order requiring the appropriate

2

access when either of the following conditions apply:

3

(1)  The adult has provided written consent for any

4

confidential records to be disclosed and the keeper of the

5

records denies access.

6

(2)  The agency can demonstrate that the adult denies

7

access to records because of incompetence, coercion,

8

extortion or justifiable fear of future abuse, neglect,

9

exploitation or abandonment.

10

Section 305.  Immunity from civil and criminal liability.

11

In the absence of willful misconduct or gross negligence, an

12

agency, its director and employees, protective services workers

13

or employees of the department shall not be civilly or

14

criminally liable for any decision or action or resulting

15

consequence of decisions or actions when acting under and

16

according to the provisions of this chapter.

17

Section 306.  Confidentiality of records.

18

(a)  General rule.--Information contained in reports, records

19

of investigation, assessment and service plans shall be

20

considered confidential and shall be maintained under

21

regulations promulgated by the department to safeguard

22

confidentiality. Except as otherwise provided in subsection (b),

23

this information shall not be disclosed to anyone outside the

24

agency other than to a court of competent jurisdiction pursuant

25

to a court order.

26

(b)  Limited access to agency's protective services

27

records.--

28

(1)  In the event that an investigation by an agency

29

results in the discovery of suspected criminal conduct, law

30

enforcement officials shall be given access to all relevant

- 19 -

 


1

records maintained by the agency or the department.

2

(2)  In arranging specific services to carry out service

3

plans, an agency may disclose to appropriate service

4

providers such information as may be necessary to initiate

5

the delivery of services.

6

(3)  An adult who is the subject of a report made under

7

section 302 may receive, upon written request, all

8

information contained in the report except that prohibited

9

from disclosure under paragraph (4).

10

(4)  The release of information that would identify a

11

person who made a report of suspected abuse, neglect,

12

exploitation or abandonment or who cooperated in a subsequent

13

investigation is prohibited unless the secretary can

14

determine that such a release will not be detrimental to the

15

safety of the person.

16

(5)  When the department is involved in the hearing of an

17

appeal by an adult who is the subject of a report made under

18

section 302, the appropriate department staff shall be given

19

access to all information in the report record relevant to

20

the appeal.

21

(6)  For the purpose of monitoring agency performance,

22

appropriate staff of the department may access agency

23

protective services records.

24

Section 307.  Involuntary intervention by emergency court order.

25

(a)  Emergency petition.--

26

(1)  Where there is clear and convincing evidence that,

27

if protective services are not provided, the adult is at

28

imminent risk of death, serious injury or serious bodily

29

injury, the agency may petition the court for an emergency

30

order to provide the necessary services.

- 20 -

 


1

(2)  The court of common pleas of each judicial district

2

shall ensure that a judge or magisterial district judge is

3

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

5

this section whenever the agency determines that a delay

6

until normal court hours would significantly increase the

7

danger the adult faces.

8

(b)  Limited order.--The court, after finding clear and

9

convincing evidence of the need for an emergency order, shall

10

order only such services as are necessary to remove the

11

conditions creating the established need.

12

(c)  Right to counsel.--In order to protect the rights of an

13

adult in need of protective services, an emergency court order

14

under this section shall provide that the adult has the right to

15

legal counsel which shall be appointed by the court at public

16

expense.

17

(d)  Forcible entry.--Where it is necessary to forcibly enter

18

a premises, law enforcement shall obtain a court order and may

19

be accompanied by a representative of an agency.

20

(e)  Health and safety requirements.--An agency shall take

21

reasonable steps to assure that while an adult is receiving

22

services under an emergency court order, the health and safety

23

needs of any of the adult's dependents are met and that personal

24

property and the dwelling the adult occupies are secure.

25

(f)  Nonrestrictive setting.--In those cases in which an

26

adult must be relocated, the court shall order the adult to be

27

relocated to the most integrated setting and the least

28

restrictive alternative that will ensure the adult's health and

29

safety and appropriate care.

30

(g)  Exclusion of remedy.--Nothing in this chapter shall be

- 21 -

 


1

construed to deny an adult access to emergency medical services

2

or police protection that would be provided to anyone,

3

regardless of age, in similar circumstances.

4

Section 308.  Rights of protective services clients.

5

(a)  Minimum requirements.--The agency shall observe the

6

following minimum requirements to safeguard the rights of an

7

adult who is reported to be in need of protective services:

8

(1)  The agency shall to the extent possible, notify the

9

adult privately during the investigation that a report has

10

been made and provide the adult with a brief summary of the

11

nature of the report.

12

(2)  As provided under section 306(b)(3), the adult may

13

request and the agency shall provide additional information

14

contained in the report.

15

(3)  An appeal of a denial of services by the department

16

or an authorized agency under this chapter shall be conducted

17

according to the provisions of the rules and regulations

18

issued by the department under Article XXII-A of the act of

<--

19

April 9, 1929 (P.L.177, No.175), known as The Administrative

20

Code of 1929 the act of June 13, 1967 (P.L.31, No.21), known

<--

21

as the Public Welfare Code.

22

(b)  Construction.--Nothing in this act shall be construed to

23

limit the right of an adult to file a petition pursuant to 23

24

Pa.C.S. Ch. 61 (relating to protection from abuse).

25

Section 309.  Financial obligations, liabilities and payments.

26

An adult receiving services and each agency providing

27

services under this chapter shall comply with the following

28

provisions regarding liability for the payment of services:

29

(1)  Funding to provide or make available protective

30

services under this chapter shall not:

- 22 -

 


1

(i)  Supplant any public and private entitlements or

2

resources for which adults receiving protective services

3

under this chapter are or may be eligible.

4

(ii)  Be available until an adult has exhausted the

5

adult's eligibility and receipt of benefits under public

6

and private entitlements or resources.

7

(2)  (i)  The obligation of the Commonwealth or a county

8

to provide funding for services provided pursuant to this

9

chapter shall be entirely discharged by the

10

appropriations made to the department or an agency.

11

(ii)  Provided that the agency has met its

12

responsibility under the law, no action at law or equity

13

may be instituted in a court to require the department,

14

agency, county or Commonwealth to provide benefits or

15

services under this chapter for which appropriations from

16

the Commonwealth or counties are not available.

17

(3)  Protective services clients receiving the same

18

services provided to others under an agency services plan

19

shall not be required to pay a fee for any services not

20

subject to cost sharing for other adults.

21

CHAPTER 5

22

REPORTING SUSPECTED ABUSE BY EMPLOYEES

23

Section 501.  Reporting by employees.

24

(a)  Mandatory reporting to agency.--

25

(1)  An employee or an administrator who has reasonable

26

cause to suspect that a recipient is a victim of abuse or

27

neglect shall immediately make an oral report to an agency.

28

If applicable, the agency shall advise the employee or

29

administrator of additional reporting requirements that may

30

pertain under subsection (b). An employee shall notify the

- 23 -

 


1

administrator immediately following the report to the agency.

2

(2)  Within 48 hours of making the oral report, the

3

employee or administrator shall make a written report to the

4

agency. The agency shall notify the administrator that a

5

report of abuse has been made with the agency.

6

(3)  The provisions of this section shall be satisfied

7

when the administrator or employee submits a report to the

8

incident reporting system. Nothing in this subsection shall

9

prohibit an employee or administrator who has reasonable

10

cause to suspect that a recipient is a victim of abuse or

11

neglect from also making a report to the agency.

12

(b)  Mandatory reports to law enforcement officials.--

13

(1)  An employee or an administrator who has reasonable

14

cause to suspect that a recipient is the victim of sexual

15

abuse, serious injury or serious bodily injury or that a

16

death is suspicious shall, in addition to contacting the

17

agency and the department, immediately contact appropriate

18

law enforcement officials to make an oral report. An employee

19

shall notify the administrator immediately following the

20

report to law enforcement officials, unless such notification

21

would jeopardize the investigation or subject the recipient

22

to further risk.

23

(2)  Within 48 hours of making the oral report, the

24

employee and the administrator shall make a joint written

25

report to 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, unless such notification would

29

jeopardize the investigation or subject the recipient to

30

further risk.

- 24 -

 


1

(4)  The employee may request the administrator to make

2

or to assist the employee to make the oral and written

3

reports to law enforcement officials required by this

4

subsection.

5

(c)  Contents of report.--A written report under this section

6

shall be submitted in a manner and on forms prescribed by the

7

department. The report shall include, at a minimum, the

8

following information:

9

(1)  Name, age and address of the recipient.

10

(2)  Name and address of the recipient's guardian,

11

attorney-in-fact or next of kin.

12

(3)  Name and address of the facility.

13

(4)  Nature of the alleged offense.

14

(5)  Any specific comments or observations that are

15

directly related to the alleged incident and those involved.

16

Section 502.  Reports to department and coroner or medical

17

examiner.

18

(a)  Department.--

19

(1)  Within 48 hours of receipt of a written report under

20

section 501(a) involving sexual abuse, serious injury,

21

serious bodily injury or suspicious death, the agency shall

22

transmit a written report to the department. Supplemental

23

reports shall be transmitted as they are obtained by the

24

agency.

25

(2)  A report under this subsection shall be made in a

26

manner and on forms prescribed by the department. The report

27

shall include, at a minimum, that information required to be

28

submitted under section 501.

29

(b)  Coroner or medical examiner.--For a report under section

30

501(a) concerning the death of a recipient, if there is

- 25 -

 


1

reasonable cause to suspect that the recipient died as a result

2

of abuse or neglect, the agency shall give the oral report and

3

forward a copy of the written report to the appropriate coroner

4

or medical examiner within 24 hours.

5

Section 503.  Investigation.

6

(a)  Law enforcement officials.--Upon receipt of a report

7

under section 501(b), law enforcement officials shall conduct an

8

investigation to determine what criminal charges, if any, will

9

be filed.

10

(b)  Notification.--If law enforcement officials have

11

reasonable cause to suspect that a recipient has suffered sexual

12

abuse, serious injury, serious bodily injury or a suspicious

13

death, law enforcement officials shall notify the agency, unless

14

such notification would jeopardize the investigation or subject

15

the recipient to further risk.

16

(c)  Cooperation.--To the fullest extent possible, law

17

enforcement officials, facilities and agencies shall coordinate

18

their respective investigations and advise each other and

19

provide any applicable additional information on an ongoing

20

basis.

21

(d)  Further notification.--

22

(1)  Law enforcement officials shall notify an agency and

23

facility of a decision regarding criminal charges.

24

(2)  Upon being notified by law enforcement, the agency

25

shall notify the department and both shall keep a record of

26

any decision regarding criminal charges.

27

(e)  Compliance with Chapter 3.--In addition to the

28

provisions of this section, the agency shall comply with the

29

provisions of Chapter 3.

30

Section 504.  Restrictions on employees.

- 26 -

 


1

(a)  Plan of supervision.--

2

(1)  On notification that an employee is alleged to have

3

committed abuse, the facility shall immediately suspend the

4

employee or where appropriate and subject to approval by the

5

agency and by the appropriate State licensing department with

6

regulatory authority over the facility, implement a plan of

7

supervision.

8

(2)  A plan of supervision for a home health care agency

9

shall include periodic random direct inspections of

10

recipients by an employee who has been continuously employed

11

by the facility for a period of at least one year.

12

(b)  Prohibition.--

13

(1)  On the filing of criminal charges against an

14

employee, the appropriate State licensing department that

15

regulates or has fiscal authority over the facility shall

16

order the facility to immediately prohibit the employee from

17

having access to recipients at the facility.

18

(2)  If the employee is a director, operator,

19

administrator or supervisor, the employee shall be subject to

20

restrictions deemed appropriate by the appropriate State

21

licensing department that regulates or has fiscal authority

22

over the facility to assure the safety of the recipients of

23

the facility.

24

Section 505.  Confidentiality of and access to confidential

25

reports.

26

A report under this chapter shall be made available in the

27

following circumstances:

28

(1)  Information may be disclosed to a court of competent

29

jurisdiction under a court order.

30

(2)  If an investigation by an agency or law enforcement

- 27 -

 


1

results in a report of criminal conduct, law enforcement

2

officials shall have access to relevant records maintained by

3

the agency or the department.

4

(3)  In arranging specific services to effect service

5

plans, an agency may disclose to appropriate service

6

providers information necessary to initiate the delivery of

7

services.

8

(4)  A subject of a report may receive, upon written

9

request, information contained in the report except that

10

prohibited from being disclosed under paragraph (5).

11

(5)  Except for reports to law enforcement officials, the

12

release of information that would identify the person who

13

made a report under this chapter or who cooperated in a

14

subsequent investigation is prohibited. Law enforcement

15

officials shall treat all reporting sources as confidential

16

information.

17

(6)  When the department is involved in the hearing of an

18

appeal by a subject of a report, the appropriate department

19

staff shall be given access to information in the report

20

record relevant to the appeal.

21

(7)  For the purposes of monitoring agency performance,

22

appropriate staff of the department may be given access to

23

agency protective service records.

24

Section 506.  Penalties.

25

(a)  Administrative.--

26

(1)  An administrator who intentionally or willfully

27

fails to comply or obstructs compliance with the provisions

28

of this chapter or intimidates or commits a retaliatory act

29

against an employee who complies in good faith with the

30

provisions of this chapter commits a violation of this

- 28 -

 


1

chapter and shall be subject to an administrative penalty

2

under paragraph (3).

3

(2)  A facility owner that intentionally or willfully

4

fails to comply with or obstructs compliance with this

5

chapter or that intimidates or commits a retaliatory act

6

against an employee who complies in good faith with this

7

chapter commits a violation of this chapter and shall be

8

subject to an administrative penalty under paragraph (3).

9

(3)  The Commonwealth agency or Commonwealth agencies

10

which regulate a facility shall have jurisdiction to

11

determine violations of this chapter and may issue an order

12

assessing a civil penalty of not more than $2,500. An order

13

under this paragraph is subject to 2 Pa.C.S. Ch. 5 Subch. A

14

(relating to practice and procedure of Commonwealth agencies)

15

and Ch. 7 Subch. A (relating to judicial review of

16

Commonwealth agency action).

17

(b)  Criminal.--

18

(1)  An administrator who intentionally or willfully

19

fails to comply or obstructs compliance with this chapter

20

commits a misdemeanor of the third degree and shall, upon

21

conviction, be sentenced to pay a fine of $2,500 or to

22

imprisonment for not more than one year, or both.

23

(2)  A facility owner that intentionally or willfully

24

fails to comply with or obstructs compliance with this

25

chapter commits a misdemeanor of the third degree and shall,

26

upon conviction, be sentenced to pay a fine of $2,500 or to

27

imprisonment for not more than one year, or both.

28

(c)  Penalties for failure to report.--A person required

29

under this chapter to report a case of suspected abuse or

30

neglect who willfully fails to do so commits a summary offense

- 29 -

 


1

for the first violation and a misdemeanor of the third degree

2

for a second or subsequent violation.

3

(d)  Whistleblower protection.--A person required under this

4

act to report a case of suspected abuse or neglect shall not be

5

subject to any retaliatory action for reporting suspected abuse

6

or neglect and shall have the protections and remedies set forth

7

in the act of December 12, 1986 (P.L.1559, No.169), known as the

8

Whistleblower Law.

9

Section 507.  Immunity.

10

No administrator or facility shall be held civilly liable for

11

any action directly related to good faith compliance with this

12

chapter.

13

CHAPTER 7

14

MISCELLANEOUS PROVISIONS

15

Section 701.  Regulations.

16

(a)  The Department of Health and the Department of Aging

<--

17

shall promulgate regulations necessary to carry out Chapter 5.

18

(b)  General rule.--The department shall promulgate rules and

<--

19

regulations necessary to implement this act. Regulations shall

20

be developed in consultation with adults, their families and

21

advocates and all other departments that are affected by this

<--

22

act.

23

(b)  Contracts.--The department shall not be required to

<--

24

contract with agencies to provide adult protective services

25

until final regulations are published by the department in the

26

Pennsylvania Bulletin or funding is appropriated by the General

27

Assembly.

28

Section 702.  Report.

29

The department shall present a report on the program and

30

services performed to the Aging and Youth Public Health and

<--

- 30 -

 


1

Welfare Committee of the Senate and the Aging and Older Adult 

<--

2

Health and Human Services Committee of the House of

<--

3

Representatives on an annual basis.

4

Section 703. Repeals.

5

All acts and parts of acts are repealed insofar as they are

6

inconsistent with this act.

7

Section 704.  Effective date.

8

This act shall take effect in six months.

- 31 -

 


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