THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY JOSEPHS, DeWEESE, CASORIO, D. COSTA, KORTZ, LONGIETTI, MELIO, MUNDY, M. O'BRIEN, REICHLEY, SIPTROTH, K. SMITH, J. TAYLOR, VULAKOVICH AND YOUNGBLOOD, APRIL 3, 2009

REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES, APRIL 3, 2009  

AN ACT

Providing for protection of abused, neglected, exploited or

abandoned adults; establishing a uniform Statewide reporting

and investigative system for suspected abuse, neglect,

exploitation or abandonment of adults; providing for

protective services; and prescribing penalties.

TABLE OF CONTENTS

Chapter 1.  Preliminary Provisions

Section 101.  Short title.

Section 102.  Legislative policy.

Section 103.  Definitions.

Chapter 3.  Administration

Section 301.  Duties of department and agencies.

Section 302.  Reporting.

Section 303.  Investigations of reports of need for protective

services.

Section 304.  Provision of services.

Section 305.  Immunity from civil and criminal liability.

Section 306.  Confidentiality of records.

Section 307.  Involuntary intervention by emergency court order.

Section 308.  Rights of protective services clients.

Section 309.  Financial obligations, liabilities and payments.

Chapter 5.  Reporting Suspected Abuse by Employees

Section 501.  Reporting by employees.

Section 502.  Reports to department and coroner or medical

examiner.

Section 503.  Investigation.

Section 504.  Restrictions on employees.

Section 505.  Confidentiality of and access to confidential

reports.

Section 506.  Penalties.

Section 507.  Immunity.

Chapter 7.  Miscellaneous Provisions

Section 701.  Regulations.

Section 702.  Report.

Section 703.  Repeals.

Section 704.  Effective date.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

CHAPTER 1

PRELIMINARY PROVISIONS

Section 101.  Short title.

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

Protective Services Act.

Section 102.  Legislative policy.

It is declared the policy of this Commonwealth that:

(1)  Adults who lack the capacity to protect themselves

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

abandonment must have access to services necessary to protect

their health, safety and welfare.

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

the laws and regulations of the Commonwealth, regarding their

lifestyles, relationships, bodies and health, even when those

choices present risks to themselves or their property.

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

protective services.

(4)  Information about protective services should be

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

responsive manner.

(5)  The Commonwealth must provide for the detection,

prevention, reduction and elimination of abuse, neglect,

exploitation and abandonment and establish a program of

protective services for adults in need of them.

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

most integrated settings and in the manner least restrictive

of individual liberties.

Section 103.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

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

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

acts:

(1)  The infliction of injury, unreasonable confinement,

intimidation or punishment with resulting physical harm, pain

or mental anguish.

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

services which are necessary to maintain physical or mental

health.

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

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

The term does not include environmental factors which are beyond

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

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

care.

"Administrator."  The person responsible for the

administration of a facility. The term includes a person

responsible for employment decisions or an independent

contractor.

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

years of age who has a physical or mental impairment that

substantially limits one or more major life activities.

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

the assistance of another person to obtain protective services

in order to prevent imminent risk to person or property.

"Agency."  A local contracted provider of protective

services.

"Assessment."  Social, physical and psychological findings

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

needs.

"Caregiver."  An individual or institution that has assumed

the responsibility for the provision of care needed to maintain

the physical or mental health of an adult. This responsibility

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

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

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

impose responsibility on any individual if the responsibility

would not otherwise exist in law.

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

court, where applicable.

"Department."  The Department of Aging of the Commonwealth.

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

term includes:

(1)  A contract employee who has direct contact with

residents or unsupervised access to their personal living

quarters.

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

contractual relationship to provide care to an adult for

monetary consideration in the adult's place of residence.

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

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

without the informed consent of the adult or with consent

obtained through misrepresentation, coercion or threats of

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

or profit for the perpetrator or monetary or personal loss to

the adult.

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

(1)  An assisted living residence as defined in section

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

the Public Welfare Code.

(2)  A domiciliary care home as defined in section 2202-A

of the act of April 9, 1929 (P.L.177, No.175), known as The

Administrative Code of 1929.

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

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

the Health Care Facilities Act.

(4)  An intermediate care facility for people with mental

retardation.

(5)  A long-term care nursing facility as defined in

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

known as the Health Care Facilities Act.

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

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

known as the Older Adult Daily Living Centers Licensing Act.

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

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

Welfare Code.

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

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

adults in a licensed or unlicensed setting.

(9)  A residential treatment facility.

"Incident Reporting System."  Home and Community Services

Information System (HCSIS) or its successor.

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

toward another person which is intended to or with knowledge

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

or interfere with the administration of this act or any law

intended to protect adults from mistreatment.

"Law enforcement official."  These shall include:

(1)  A police officer of a municipality.

(2)  A district attorney.

(3)  The Pennsylvania State Police.

(4)  A county sheriff.

(5)  The Attorney General.

"Least restrictive alternative."  The least intrusive service

or environment that can effectively and safely address the

adult's needs and preferences.

"Most integrated setting."  A setting that enables

individuals with disabilities to interact with individuals who

do not have disabilities to the fullest extent possible.

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

of a caregiver to provide goods or services essential to avoid a

clear and serious threat to the physical or mental health of an

adult. The term does not include environmental factors that are

beyond the control of an adult or the caregiver, including, but

not limited to, inadequate housing, furnishings, income,

clothing or medical care.

"Protective services."  Those activities, resources and

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

reduce or eliminate abuse, neglect, exploitation and

abandonment.

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

treatment in or from a facility.

"Secretary."  The Secretary of Aging of the Commonwealth.

"Serious bodily injury."  Injury that:

(1)  creates a substantial risk of death; or

(2)  causes serious permanent disfigurement or protracted

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

"Serious injury."  An injury that:

(1)  causes a person severe pain; or

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

functioning, either temporarily or permanently.

"Service plan."  A written plan that:

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

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

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

appropriate.

(2)  Where possible, is based on multidisciplinary,

comprehensive written assessments conducted by professionals

who have met with the adult in need of protective services

and are familiar with their situation.

(3)  Provides for services in the most integrated setting

and utilizes least restrictive alternatives.

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

specific services to support goal attainment, with regular

follow-up and predetermined reassessment of client progress.

(5)  Is updated as needed.

"Sexual abuse."  Intentionally, knowingly or recklessly

causing or attempting to cause rape, involuntary deviate sexual

intercourse, sexual assault, statutory sexual assault,

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

(relating to crimes and offenses).

CHAPTER 3

ADMINISTRATION

Section 301.  Duties of department and agencies.

(a)  General rule.--

(1)  The department shall administer the adult protective

services program in a manner designed to utilize least

restrictive alternatives and to ensure services are provided

in the most integrated setting.

(2)  The department shall, in consultation with the

Department of Public Welfare and other appropriate State

agencies, define the geographic areas to be served by

agencies and shall select those agencies based upon a

competitive bidding process. Successful bidders must:

(i)  Demonstrate knowledge of and experience working

with adults.

(ii)  Be separate from agencies providing direct

services to adults and from county mental health and

mental retardation programs.

(iii)  Demonstrate knowledge of service delivery

principles important to adults and their families such as

individual choice and use of the least restrictive

alternative.

(iv)  Demonstrate that the program will be advised by

a body that includes at least 51% representation of

adults and their family members.

(v)  Include letters of support that show

collaboration with entities which advocate for adults.

(3)  The department shall establish, by regulation,

procedures to ensure no conflict of interest in the provision

of adult protective services.

(4)  The department shall conduct an ongoing campaign

designed to inform and educate adults, families, caregivers,

professionals and the general public about the need for and

availability of protective services under this chapter. The

campaign shall require facilities to post notice of the

availability of protective services and to provide the notice

to recipients and their families. The department shall

consult with other departments of the Commonwealth on the

design and implementation of the ongoing public awareness

campaign. The department shall also consider the concerns of

agencies and entities identified by them under subsection

(b).

(5)  The department shall establish, by regulation,

minimum standards of training and experience that agencies

funded by the department shall follow in the selection and

assignment of staff for the provision of protective services.

The standards shall require agencies to collaborate with

adults, their families and advocates, and the standards shall

be included in developing and delivering training.

(6)  The department shall ensure that agencies have

access to the incident reporting system.

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

includes a protective services plan. The plan shall:

(1)  Describe the implementation of this chapter,

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

mode of operations and financing of protective services, as

well as the provisions made for purchase of services,

interagency relations, interagency agreements, service

referral mechanisms and locus of responsibility for cases

with multiservice agency needs.

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

and service providers will use to assure the privacy of all

adults receiving services and the confidentiality of all

records.

(3)  List all other social service entities, whether

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

having substantial contact with potential victims or

perpetrators of abuse, neglect, exploitation and abandonment.

(4)  Ensure that the entities have information regarding

the unique aspects of various disabilities.

The agency shall submit the list to the department for purposes

of the public information campaign under subsection (a).

Section 302.  Reporting.

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

believe that an adult is in need of protective services may

report such information to the agency. Where applicable, reports

shall comply with the provisions of Chapter 5.

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

receiving reports of adults in need of protective services 24

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

capability may include the use of a local emergency response

system or a crisis intervention agency, provided that access can

be made to a protective services caseworker in appropriate

emergency situations as set forth in regulations promulgated by

the department. All reports received orally under this section

shall be reduced to writing immediately by the person who

receives the report.

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

the report during and immediately following receipt of the

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

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

require immediate attention because specific details in the

report indicate the possibility that the adult reported to

need protective services is at imminent risk of death or

serious injury or serious bodily injury. The person receiving

a priority report shall immediately contact a protective

services caseworker and provide the caseworker with the

information contained in the report.

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

category when it does not appropriately fall within the

priority category and, therefore, does not require immediate

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

referred to a protective services caseworker of an agency

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

next day of business under the agency's established

procedures for referring these reports.

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

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

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

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

this category. The report shall be referred to the agency

that has the designated responsibility for protective

services in the planning and service area in which the adult

reported to be in need of protective services is located at

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

meet the criteria for placement in one of the other

categories in this subsection. The provisions for referral

for the other category shall apply to a referral to another

planning and service area.

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

placed in this category when the person reported to be in

need of protective services meets either of the following

criteria:

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

help, services necessary to maintain physical or mental

health;

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

or property.

A report in this category shall be referred to a protective

services caseworker of the agency within the normal business

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

protective services caseworker shall review the details of

the report and take all steps necessary to confirm or reject

the categorization of no need for protective services. If the

caseworker confirms the screening categorization, and upon

the request of any interested party and without objection by

the adult appropriate referrals shall be made to other

entities. The protective services case shall then be closed.

If the caseworker rejects the categorization, the report

shall be placed in the appropriate category and shall be

handled accordingly. A report may not be placed in this

category if the adult is temporarily relocated to a safe

environment and will return to the original abusive situation

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

safe.

(d)  Retaliatory action.--

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

agency, including providing testimony in any administrative

or judicial proceeding, and any adult in need of protective

services shall not be subject to any discriminatory,

retaliatory or disciplinary action by an employer or by any

other person or entity.

(2)  Any person who violates this subsection is subject

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

protective services, in which action the reporter or adult in

need of protective services shall recover treble compensatory

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

whichever is greater.

(e)  Intimidation.--

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

services, with knowledge sufficient to justify making a

report or cooperating with an agency, including possibly

providing testimony in an administrative or judicial

proceeding, shall not be subject to any intimidation by an

employer or by any other person or entity.

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

civil action by the reporter or the adult in need of

protective services, in which action the reporter or adult in

need of protective services shall recover treble compensatory

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

whichever is greater.

(f)  Immunity.--

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

or who provides testimony in an administrative or judicial

proceeding arising out of a report shall be immune from any

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

account of the report or testimony, unless the person acted

in bad faith or with malicious purpose.

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

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

exploitation or abandonment even if such act is the subject

of the report or testimony.

Section 303.  Investigations of reports of need for protective

services.

(a)  Investigation.--

(1)  An agency shall investigate each report made under

section 302.

(2)  The investigation shall be initiated immediately for

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

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

adult in need of protective services.

(3)  The investigation shall be initiated within 72 hours

for a nonpriority report.

(4)  The department shall adopt regulations providing for

the methods of conducting investigations under this section

and shall assure that steps are taken to avoid any conflict

of interest between the investigator and service delivery

functions.

(5)  Reports and investigations conducted under this

section shall comply with the provisions of Chapter 5, where

applicable.

(b)  Investigation involving licensed facilities.--

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

licensed facility shall be reported to the appropriate State

licensing department and investigated under procedures

developed by the department in consultation with the bureau

responsible for the licensure of the facility.

(2)  The protective services agency may seek judicial

relief to require the facility to protect the health and

safety of the adult when the licensed program is believed to

continue to jeopardize the adult's health and safety through

evidence of risk substantiated.

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

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

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

under procedures established by the department.

(d)  Substantiated reports.--

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

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

assessment is necessary in order to determine whether the

report is substantiated. An adult may refuse the assessment.

(2)  Upon completion of the assessment, written findings

shall be prepared that include recommended action. A service

plan shall be developed and shall:

(i)  Provide for the least restrictive alternative

and encourage choice and continuity of care.

(ii)  Assure that services and supports are provided

in the most integrated setting.

(iii)  Absent a court order, not include the

relocation of the adult unless the adult consents.

(iv)  Be written in plain language whenever possible

and prepared in a manner which can be easily understood

by an adult in need of protective services or that

adult's appointed guardian.

(v)  Be in writing and include a recommended course

of action that may include the pursuit of civil or

criminal remedies.

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

services refuses an assessment or the development of a

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

of section 307.

Section 304.  Provision of services.

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

determined, an agency shall offer protective services if an

adult requests services or an interested person requests

services on behalf of an adult.

(b)  Consent by request.--

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

only receive protective services voluntarily. In no event may

protective services be provided under this chapter to an

adult who refuses consent to the services or who, having

consented, withdraws the consent, unless the services are

ordered by a court or provided under section 307.

(2)  Nothing in this chapter shall be construed to

prevent an agency from petitioning for the appointment of a

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

estates and fiduciaries).

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

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

consent to provision of services, the agency may petition the

court for an order enjoining the interference.

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

records relevant to:

(1)  Investigations of reports under section 303.

(2)  Assessment of client need.

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

for protective services has been or is being established.

(4)  Delivery of services arranged for under the service

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

assessed need for specific services.

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

adults who have been reported to be in need of protective

services in order to:

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

(2)  Assess needs and develop a service plan for

addressing them.

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

or other service provider arranged for under the service

plan.

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

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

and access is necessary to complete the investigation or the

assessment and service plan or the delivery of needed services

in order to prevent further abuse, neglect, exploitation or

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

an order to require the appropriate access when either of the

following conditions apply:

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

the completion of the investigation or the assessment and

service plan or the delivery of services.

(2)  The agency can demonstrate that the adult denies

access because of coercion, extortion or justifiable fear of

further abuse, neglect, exploitation or abandonment.

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

records held by other entities or individuals or an adult

reported to be in need of protective services shall require the

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

provided for under this section or section 307.

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

access to records necessary for completion of a proper

investigation of a report, assessment, service plan or the

delivery of needed services in order to prevent further abuse,

neglect, exploitation or abandonment of the adult reported to be

in need of protective services, the agency may petition the

court of common pleas for an order requiring the appropriate

access when either of the following conditions apply:

(1)  The adult has provided written consent for any

confidential records to be disclosed and the keeper of the

records denies access.

(2)  The agency can demonstrate that the adult denies

access to records because of incompetence, coercion,

extortion or justifiable fear of future abuse, neglect,

exploitation or abandonment.

Section 305.  Immunity from civil and criminal liability.

In the absence of willful misconduct or gross negligence, an

agency, its director and employees, protective services workers

or employees of the department shall not be civilly or

criminally liable for any decision or action or resulting

consequence of decisions or actions when acting under and

according to the provisions of this chapter.

Section 306.  Confidentiality of records.

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

of investigation, assessment and service plans shall be

considered confidential and shall be maintained under

regulations promulgated by the department to safeguard

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

this information shall not be disclosed to anyone outside the

agency other than to a court of competent jurisdiction pursuant

to a court order.

(b)  Limited access to agency's protective services

records.--

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

results in the discovery of suspected criminal conduct, law

enforcement officials shall be given access to all relevant

records maintained by the agency or the department.

(2)  In arranging specific services to carry out service

plans, an agency may disclose to appropriate service

providers such information as may be necessary to initiate

the delivery of services.

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

section 302 may receive, upon written request, all

information contained in the report except that prohibited

from disclosure under paragraph (4).

(4)  The release of information that would identify a

person who made a report of suspected abuse, neglect,

exploitation or abandonment or who cooperated in a subsequent

investigation is prohibited unless the secretary can

determine that such a release will not be detrimental to the

safety of the person.

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

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

section 302, the appropriate department staff shall be given

access to all information in the report record relevant to

the appeal.

(6)  For the purpose of monitoring agency performance,

appropriate staff of the department may access agency

protective services records.

Section 307.  Involuntary intervention by emergency court order.

(a)  Emergency petition.--

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

if protective services are not provided, the adult is at

imminent risk of death, serious injury or serious bodily

injury, the agency may petition the court for an emergency

order to provide the necessary services.

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

shall ensure that a judge or magisterial district judge is

available on a 24-hour-a-day, 365-day-a-year basis to accept

and decide on petitions for an emergency court order under

this section whenever the agency determines that a delay

until normal court hours would significantly increase the

danger the adult faces.

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

convincing evidence of the need for an emergency order, shall

order only such services as are necessary to remove the

conditions creating the established need.

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

adult in need of protective services, an emergency court order

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

legal counsel which shall be appointed by the court at public

expense.

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

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

be accompanied by a representative of an agency.

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

reasonable steps to assure that while an adult is receiving

services under an emergency court order, the health and safety

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

property and the dwelling the adult occupies are secure.

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

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

relocated to the most integrated setting and the least

restrictive alternative that will ensure the adult's health and

safety and appropriate care.

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

construed to deny an adult access to emergency medical services

or police protection that would be provided to anyone,

regardless of age, in similar circumstances.

Section 308.  Rights of protective services clients.

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

following minimum requirements to safeguard the rights of an

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

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

adult privately during the investigation that a report has

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

nature of the report.

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

request and the agency shall provide additional information

contained in the report.

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

or an authorized agency under this chapter shall be conducted

according to the provisions of the rules and regulations

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

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

Code of 1929.

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

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

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

Section 309.  Financial obligations, liabilities and payments.

An adult receiving services and each agency providing

services under this chapter shall comply with the following

provisions regarding liability for the payment of services:

(1)  Funding to provide or make available protective

services under this chapter shall not:

(i)  Supplant any public and private entitlements or

resources for which adults receiving protective services

under this chapter are or may be eligible.

(ii)  Be available until an adult has exhausted the

adult's eligibility and receipt of benefits under public

and private entitlements or resources.

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

to provide funding for services provided pursuant to this

chapter shall be entirely discharged by the

appropriations made to the department or an agency.

(ii)  Provided that the agency has met its

responsibility under the law, no action at law or equity

may be instituted in a court to require the department,

agency, county or Commonwealth to provide benefits or

services under this chapter for which appropriations from

the Commonwealth or counties are not available.

(3)  Protective services clients receiving the same

services provided to others under an agency services plan

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

subject to cost sharing for other adults.

CHAPTER 5

REPORTING SUSPECTED ABUSE BY EMPLOYEES

Section 501.  Reporting by employees.

(a)  Mandatory reporting to agency.--

(1)  An employee or an administrator who has reasonable

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

neglect shall immediately make an oral report to an agency.

If applicable, the agency shall advise the employee or

administrator of additional reporting requirements that may

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

administrator immediately following the report to the agency.

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

employee or administrator shall make a written report to the

agency. The agency shall notify the administrator that a

report of abuse has been made with the agency.

(3)  The provisions of this section shall be satisfied

when the administrator or employee submits a report to the

incident reporting system. Nothing in this subsection shall

prohibit an employee or administrator who has reasonable

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

neglect from also making a report to the agency.

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

(1)  An employee or an administrator who has reasonable

cause to suspect that a recipient is the victim of sexual

abuse, serious injury or serious bodily injury or that a

death is suspicious shall, in addition to contacting the

agency and the department, immediately contact law

enforcement officials to make an oral report. An employee

shall notify the administrator immediately following the

report to law enforcement officials.

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

employee and the administrator shall make a joint written

report to appropriate law enforcement officials.

(3)  The law enforcement officials shall notify the

administrator that a report has been made with the law

enforcement officials.

(4)  The employee may request the administrator to make

or to assist the employee to make the oral and written

reports to law enforcement officials required by this

subsection.

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

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

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

following information:

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

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

attorney-in-fact or next of kin.

(3)  Name and address of the facility.

(4)  Nature of the alleged offense.

(5)  Any specific comments or observations that are

directly related to the alleged incident and those involved.

Section 502.  Reports to department and coroner or medical

examiner.

(a)  Department.--

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

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

serious bodily injury or suspicious death, the agency shall

transmit a written report to the department. Supplemental

reports shall be transmitted as they are obtained by the

agency.

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

manner and on forms prescribed by the department. The report

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

submitted under section 501.

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

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

reasonable cause to suspect that the recipient died as a result

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

forward a copy of the written report to the appropriate coroner

or medical examiner within 24 hours.

Section 503.  Investigation.

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

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

investigation to determine what criminal charges, if any, will

be filed.

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

reasonable cause to suspect that a recipient has suffered sexual

abuse, serious injury, serious bodily injury or a suspicious

death, law enforcement officials shall notify the agency.

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

enforcement officials, facilities and agencies shall coordinate

their respective investigations and advise each other and

provide any applicable additional information on an ongoing

basis.

(d)  Further notification.--

(1)  Law enforcement officials shall notify an agency and

facility of a decision regarding criminal charges.

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

shall notify the department and both shall keep a record of

any decision regarding criminal charges.

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

provisions of this section, the agency shall comply with the

provisions of Chapter 3.

Section 504.  Restrictions on employees.

(a)  Plan of supervision.--

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

committed abuse, the facility shall immediately suspend the

employee or where appropriate and subject to approval by the

agency and by the appropriate State licensing department with

regulatory authority over the facility, implement a plan of

supervision.

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

shall include periodic random direct inspections of

recipients by an employee who has been continuously employed

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

(b)  Prohibition.--

(1)  On the filing of criminal charges against an

employee, the appropriate State licensing department that

regulates or has fiscal authority over the facility shall

order the facility to immediately prohibit the employee from

having access to recipients at the facility.

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

administrator or supervisor, the employee shall be subject to

restrictions deemed appropriate by the Commonwealth agency

that licenses, regulates or has fiscal authority over the

facility to assure the safety of the recipients of the

facility.

Section 505.  Confidentiality of and access to confidential

reports.

A report under this chapter shall be made available in the

following circumstances:

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

jurisdiction under a court order.

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

results in a report of criminal conduct, law enforcement

officials shall have access to relevant records maintained by

the agency or the department.

(3)  In arranging specific services to effect service

plans, an agency may disclose to appropriate service

providers information necessary to initiate the delivery of

services.

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

request, information contained in the report except that

prohibited from being disclosed under paragraph (5).

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

release of information that would identify the person who

made a report under this chapter or who cooperated in a

subsequent investigation is prohibited. Law enforcement

officials shall treat all reporting sources as confidential

information.

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

appeal by a subject of a report, the appropriate department

staff shall be given access to information in the report

record relevant to the appeal.

(7)  For the purposes of monitoring agency performance,

appropriate staff of the department may be given access to

agency protective service records.

Section 506.  Penalties.

(a)  Administrative.--

(1)  An administrator who intentionally or willfully

fails to comply or obstructs compliance with the provisions

of this chapter or intimidates or commits a retaliatory act

against an employee who complies in good faith with the

provisions of this chapter commits a violation of this

chapter and shall be subject to an administrative penalty

under paragraph (3).

(2)  A facility owner that intentionally or willfully

fails to comply with or obstructs compliance with this

chapter or that intimidates or commits a retaliatory act

against an employee who complies in good faith with this

chapter commits a violation of this chapter and shall be

subject to an administrative penalty under paragraph (3).

(3)  The Commonwealth agency or Commonwealth agencies

which regulate a facility shall have jurisdiction to

determine violations of this chapter and may issue an order

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

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

(relating to practice and procedure of Commonwealth agencies)

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

Commonwealth agency action).

(b)  Criminal.--

(1)  An administrator who intentionally or willfully

fails to comply or obstructs compliance with this chapter

commits a misdemeanor of the third degree and shall, upon

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

imprisonment for not more than one year, or both.

(2)  A facility owner that intentionally or willfully

fails to comply with or obstructs compliance with this

chapter commits a misdemeanor of the third degree and shall,

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

imprisonment for not more than one year, or both.

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

under this chapter to report a case of suspected abuse or

neglect who willfully fails to do so commits a summary offense

for the first violation and a misdemeanor of the third degree

for a second or subsequent violation.

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

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

subject to any retaliatory action for reporting suspected abuse

or neglect and shall have the protections and remedies set forth

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

Whistleblower Law.

Section 507.  Immunity.

No administrator or facility shall be held civilly liable for

any action directly related to good faith compliance with this

chapter.

CHAPTER 7

MISCELLANEOUS PROVISIONS

Section 701.  Regulations.

(a)  General rule.--The Department of Health and the

Department of Public Welfare shall promulgate regulations

necessary to carry out Chapter 5.

(b)  Development of regulations.--The department shall

promulgate rules and regulations necessary to implement this

act. Regulations shall be developed in consultation with adults,

their families and advocates.

Section 702.  Report.

The department shall present a report on the program and

services performed to the Aging and Youth Committee of the

Senate and the Aging and Older Adult Services Committee of the

House of Representatives on an annual basis.

Section 703. Repeals.

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

inconsistent with this act.

Section 704.  Effective date.

This act shall take effect in six months.