PRINTER'S NO. 1303
No. 1145 Session of 1991
INTRODUCED BY STUBAN, CAPPABIANCA, STISH, COLAIZZO, McGEEHAN,
JOHNSON, MELIO, SALOOM, NOYE, FAIRCHILD, VEON, JAROLIN,
FARGO, HALUSKA, KRUSZEWSKI, JOSEPHS, BILLOW, HARPER, PRESTON,
BELFANTI, RUDY, MAIALE, NAHILL, BELARDI, PISTELLA, BLAUM,
J. TAYLOR, CORRIGAN, OLASZ, DALEY, DeLUCA, TRELLO, FOX, BUNT,
CESSAR, STABACK, HECKLER, STEELMAN AND HANNA, APRIL 16, 1991
REFERRED TO COMMITTEE ON AGING AND YOUTH, APRIL 16, 1991
AN ACT
1 Prohibiting abuse of residents of long-term care facilities;
2 providing for license revocation; providing immunity for
3 long-term care ombudsmen and persons reporting thereto; and
4 providing for compensatory and punitive damages.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Long-Term
9 Care Facilities Abuse Act.
10 Section 2. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Abuse." The occurrence of one or more of the following
15 acts:
16 (1) The intentional or reckless infliction of injury,
17 unreasonable confinement, intimidation or punishment with
1 resulting physical harm, pain or mental anguish.
2 (2) The willful deprivation of goods or services which
3 are necessary to maintain physical or mental health.
4 (3) Sexual abuse.
5 (4) Willful use of a physical restraint or chemical
6 restraint, medication or isolation:
7 (i) without authorization;
8 (ii) for a purpose other than the one for which it
9 was ordered;
10 (iii) for staff convenience;
11 (iv) for punishment; or
12 (v) for a period beyond or in a manner other than
13 that for which it was ordered.
14 (5) An act or omission which causes or could cause death
15 or serious bodily injury.
16 "Long-term care facility." Any person who provides temporary
17 or permanent residence to persons in need of personal care or
18 medical care for pay, including, but not limited to, nursing
19 homes, personal care homes, boarding homes, domiciliary care
20 homes, hospitals and mental health-mental retardation centers.
21 "Neglect." The occurrence of one or more of the following
22 acts:
23 (1) Intentional or grossly negligent lack of attention
24 to physical needs of the patient or resident, including, but
25 not limited to, toileting, bathing, feeding and safety, with
26 resulting harm.
27 (2) Intentional or grossly negligent failure to report
28 resident health problems or changes in health problems or
29 condition to an immediate supervisor, long-term care facility
30 administrator, physician or other individual responsible to
19910H1145B1303 - 2 -
1 address such problems or conditions.
2 (3) Intentional or grossly negligent failure to carry
3 out a prescribed treatment plan for a resident or patient.
4 (4) Intentional or grossly negligent violation of the
5 duty to care for or protect residents or patients by any
6 person in charge of or employed in a long-term care facility.
7 "Ombudsman." A long-term care ombudsman appointed pursuant
8 to the State Long-Term Care Ombudsman Program authorized in
9 section 2203-A of the act of April 9, 1929 (P.L.177, No.175),
10 known as The Administrative Code of 1929.
11 "Person." A corporation, partnership and association as well
12 as a natural person.
13 "Restraint." A device or technique designed to control acute
14 or episodic aggressive behavior or voluntary or involuntary
15 movement of a patient or resident of a long-term care facility.
16 Section 3. Abuse of residents of facilities.
17 (a) Penalties for abuse or neglect.--A person in charge of
18 or employed in a long-term care facility who abuses or neglects
19 a resident in the facility commits a felony of the second
20 degree. A person who knowingly or negligently, as defined in 18
21 Pa.C.S. § 302 (relating to general requirements of culpability),
22 permits another person to do so, commits a felony of the third
23 degree. If the abuse or neglect results in death or serious
24 bodily injury, the person commits a felony of the first degree.
25 (b) Penalty for knowledge of abuse or neglect by owner.--An
26 owner or corporate officer of a long-term care facility who
27 knows or who should reasonably have known that patients or
28 residents of the facility are being abused or neglected or have
29 been abused or neglected and fails to promptly take corrective
30 action commits a misdemeanor of the first degree.
19910H1145B1303 - 3 -
1 Section 4. License revocation.
2 (a) General rule.--A person who holds a license or
3 certification, including, but not limited to, a license or
4 certification as a hospital or nursing home administrator,
5 nurse, physician or nurse's aide, or who has been certified by
6 placement on the nurse's aide registry, who is convicted under
7 this act shall have the license or certification immediately
8 revoked and shall not be eligible for reinstatement of the
9 license.
10 (b) Additional penalty.--A person who owns, operates or is
11 employed in a long-term care facility other than those
12 enumerated in subsection (a) and is convicted under this act
13 shall be barred from working, owning or operating a long-term
14 care facility.
15 Section 5. Ombudsmen.
16 (a) Immunity from liability.--Ombudsmen shall be immune from
17 civil and criminal liability for any decision or action or
18 resulting consequence of a decision or action when acting in
19 their official capacity and in good faith performance of their
20 duties.
21 (b) Retaliatory action.--Ombudsmen shall be free from
22 intimidating or retaliatory action by any person for actions
23 taken in performance of their duties and from willful
24 interference with the performance of their duties.
25 (c) Immunity for reporting.--A person who makes a good faith
26 report to an ombudsman, cooperates in an investigation or
27 testifies in any judicial proceeding relating to abuse or
28 neglect of a resident of a long-term care facility shall be free
29 from intimidation or retaliation by any person, employer or
30 entity and shall be immune from any civil or criminal liability
19910H1145B1303 - 4 -
1 unless the person acted in bad faith or with malicious purpose.
2 Immunity shall not extend to liability for acts of abuse or
3 neglect even if the acts are the subject of the report or
4 testimony.
5 (d) Damages.--A person who violates this section by
6 intimidating or taking retaliatory action against an ombudsmen
7 or good faith reporter shall be liable in a civil action in
8 which the ombudsmen or reporter is entitled to treble
9 compensatory and punitive damages or $5,000, whichever is
10 greater.
11 Section 6. Effective date.
12 This act shall take effect in 60 days.
C20L35JRW/19910H1145B1303 - 5 -