PRIOR PRINTER'S NOS. 99, 840 PRINTER'S NO. 2295
No. 90 Session of 1987
INTRODUCED BY KUKOVICH, IRVIS, SEVENTY, CAWLEY, TIGUE, DeLUCA,
LUCYK, COWELL, COHEN, J. L. WRIGHT, WAMBACH, PERZEL,
PRESSMANN, RICHARDSON, GANNON, HALUSKA, PRESTON, TRUMAN,
DAWIDA, TRELLO, MARKOSEK, RUDY, STABACK, D. R. WRIGHT,
LAUGHLIN, SWEET, GEIST, JOSEPHS, CAPPABIANCA, OLIVER, BUSH,
DOMBROWSKI, HARPER, MORRIS, ITKIN, CARN, FOX, HERMAN, BUNT,
RAYMOND, J. TAYLOR, KOSINSKI, VEON, FATTAH, SHOWERS,
VAN HORNE, MRKONIC, PETRARCA, SAURMAN, LaGROTTA, FREEMAN,
FLICK, D. W. SNYDER, E. Z. TAYLOR, PISTELLA, DALEY, CIVERA,
LEVDANSKY, BLAUM, HUGHES, PETRONE AND BOOK, FEBRUARY 2, 1987
AS RE-REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, AS AMENDED, OCTOBER 14, 1987
AN ACT
1 Relating to the protection of the abused, neglected, exploited <--
2 or abandoned elderly; establishing a uniform Statewide
3 reporting and investigative system for suspected abuse,
4 neglect or exploitation of the elderly; providing protective
5 services; providing for funding; making an appropriation; and
6 making repeals.
7 TABLE OF CONTENTS
8 Section 1. Short title.
9 Section 2. Legislative policy.
10 Section 3. Definitions.
11 Section 4. Duties of department and area agencies on aging.
12 Section 5. Reporting; protection from retaliation; immunity.
13 Section 6. Investigations of reports of need for protective
14 services.
15 Section 7. Provision of services.
1 Section 8. Immunity of the agency and the protective services
2 provider.
3 Section 9. Confidentiality of records.
4 Section 10. Emergency protective services.
5 Section 11. Regulations; enforcement.
6 Section 12. Funds for payment of administration of act;
7 appropriation; lapse.
8 Section 13. Repeals.
9 Section 14. Effective date.
10 RELATING TO THE PROTECTION OF THE ABUSED, NEGLECTED, EXPLOITED <--
11 OR ABANDONED ELDERLY; ESTABLISHING A UNIFORM STATEWIDE
12 REPORTING AND INVESTIGATIVE SYSTEM FOR SUSPECTED ABUSE,
13 NEGLECT, EXPLOITATION OR ABANDONMENT OF THE ELDERLY;
14 PROVIDING PROTECTIVE SERVICES; PROVIDING FOR FUNDING; AND
15 MAKING REPEALS.
16 TABLE OF CONTENTS
17 SECTION 1. SHORT TITLE.
18 SECTION 2. LEGISLATIVE POLICY.
19 SECTION 3. DEFINITIONS.
20 SECTION 4. DUTIES OF DEPARTMENT AND AREA AGENCIES ON AGING.
21 SECTION 5. REPORTING; PROTECTION FROM RETALIATION; IMMUNITY.
22 SECTION 6. INVESTIGATIONS OF REPORTS OF NEED FOR PROTECTIVE
23 SERVICES.
24 SECTION 7. PROVISION OF SERVICES; ACCESS TO RECORDS AND
25 PERSONS.
26 SECTION 8. IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY.
27 SECTION 9. CONFIDENTIALITY OF RECORDS.
28 SECTION 10. INVOLUNTARY INTERVENTION BY EMERGENCY COURT ORDER.
29 SECTION 11. INDIVIDUAL RIGHTS.
30 SECTION 12. FINANCIAL OBLIGATIONS; LIABILITIES AND PAYMENTS.
19870H0090B2295 - 2 -
1 SECTION 13. REGULATIONS; ENFORCEMENT.
2 SECTION 14. FUNDS FOR PAYMENT OF ADMINISTRATION OF ACT.
3 SECTION 15. REPEALS.
4 SECTION 16. EFFECTIVE DATE.
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 Older Adults
9 Protective Services Act.
10 Section 2. Legislative policy.
11 It is declared the policy of the Commonwealth of Pennsylvania
12 that older adults who lack the physical or mental capacity to
13 care for their basic daily living needs shall have access to and
14 be provided with needed professional services sufficient to
15 protect their health, safety and welfare. It is not the purpose
16 of this act to place restrictions upon the personal liberty of
17 incapacitated older adults, but this act should be liberally
18 construed to assure the availability of protective services to
19 all older adults in need of them. Such services should allow an
20 incapacitated older adult the same rights as other citizens and,
21 at the same time, protect the incapacitated older adult from
22 abuse, neglect and exploitation. It is the intent of the General
23 Assembly to provide for the detection and correction of abuse,
24 neglect and exploitation and to establish a program of
25 protective and supportive services for all incapacitated older
26 adults in need of them.
27 Section 3. Definitions.
28 The following words and phrases when used in this act shall
29 have the meanings given to them in this section unless the
30 context clearly indicates otherwise:
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1 "Abuse." The occurrence of one or more of the following
2 acts:
3 (1) The infliction of injury, unreasonable confinement,
4 intimidation or punishment with resulting physical harm, pain
5 or mental anguish.
6 (2) The willful deprivation by a caretaker of goods or
7 services which are necessary to maintain physical or mental
8 health.
9 (3) Sexual harassment, rape or abuse as defined in the
10 act of October 7, 1976 (P.L.1090, No.218), known as the
11 Protection From Abuse Act.
12 No older adults shall be found to be abused solely on the
13 grounds of environmental factors which are beyond the control of
14 the older adult or the caretaker such as inadequate housing,
15 furnishings, income, clothing or medical care.
16 "Agency." A designated area agency on aging or its designee.
17 "Caretaker." An individual or institution who has assumed
18 the responsibility for the provision of care needed to maintain
19 the physical or mental health of an older adult. This
20 responsibility may arise voluntarily, by contract, as a result
21 of family relationship, or by order of a court of competent
22 jurisdiction. It is not the intent of this act to impose
23 responsibility on any individual if such responsibility would
24 not otherwise exist.
25 "Court." Common pleas court or a district justice court
26 where appropriate.
27 "Department." The Department of Aging of the Commonwealth.
28 "Exploitation." An unjust or improper course of conduct by a
29 caretaker or other person against an older adult or an older
30 adult's resources, without the informed consent of the older
19870H0090B2295 - 4 -
1 adult that results in monetary, personal or other benefit, gain
2 or profit for the perpetrator or monetary or personal loss to
3 the older adult.
4 "Incapacitated older adult." A person 60 years of age or
5 older who is suffering from a physical or mental dysfunction to
6 the extent that the person is impaired in his ability to
7 adequately provide for his own care or protection.
8 "In need of protective services." An incapacitated older
9 adult who is unable to perform or obtain services that are
10 necessary to maintain physical and mental health, for whom there
11 is no responsible caretaker and who is at imminent risk of
12 danger to his person or property.
13 "Neglect." The failure to provide for oneself or the failure
14 of a caretaker to provide goods or services essential to avoid a
15 clear and serious threat to physical or mental health. No older
16 adult shall be found to be neglected solely on the grounds of
17 environmental factors which are beyond the control of the older
18 adult or the caretaker such as inadequate housing, furnishings,
19 income, clothing or medical care.
20 "Older adult." A person 60 years of age or older.
21 "Protective service provider." The area agency on aging or
22 the organization designated by the area agency on aging to
23 provide protective services.
24 "Protective services." That array of preventive, supportive
25 or surrogate services necessary to prevent abuse, neglect or
26 exploitation. Such service shall include, but not be limited to:
27 (1) Receiving and investigating reports of older adults
28 who may be in need of protective services.
29 (2) Arranging for medical and psychiatric services to
30 evaluate and safeguard the circumstances of older adults.
19870H0090B2295 - 5 -
1 (3) Planning for the basic daily living needs of older
2 adults.
3 (4) Home care, day care, respite care, chore services,
4 transportation, emergency services and other social services.
5 (5) Legal assistance and financial management services.
6 "Protective setting." A setting chosen by the agency where
7 services can be provided in the least restrictive environment to
8 protect the physical and mental well-being of the older adult.
9 "Surrogate services." Those services performed on behalf of
10 an older adult, such as acting as a representative protective
11 payee, or those services performed under the provisions of a
12 power of attorney. No surrogate services may be performed
13 without written consent of the older adult that specifies those
14 services to be performed on behalf of the older adult.
15 Section 4. Duties of department and area agencies on aging.
16 (a) Information and cooperation.--The department shall
17 conduct an ongoing campaign designed to inform and educate older
18 adults, professionals and the general public about the need for
19 and availability of protective services under this act. The
20 department shall cooperate with other departments of the
21 Commonwealth in the design and implementation of the ongoing
22 public awareness campaign. The department shall also cooperate
23 with each area agency on aging and the entities identified by
24 them pursuant to subsection (b).
25 (b) Protective services plan.--Each area agency on aging
26 shall include a protective services plan as part of its annual
27 plan. The plan shall describe the local implementation of this
28 act including the organization, staffing, mode of operations and
29 financing of protective services as well as the provisions made
30 for purchase of services, interagency relations, interagency
19870H0090B2295 - 6 -
1 agreements, service referral mechanisms and locus of
2 responsibility for cases with multiservice agency needs. The
3 plan shall also include a description of the methods that will
4 be used by the agency, its designees and its service providers
5 to assure the privacy of older adults receiving services and the
6 confidentiality of all records. The department shall establish a
7 schedule for the submission and approval of the plans. The plan
8 shall include a list of all entities, whether public or private,
9 that have been identified by the agency as having substantial
10 contact with potential victims or perpetrators of abuse, neglect
11 and exploitation. This list shall be submitted to the department
12 for purposes of the public awareness campaign under subsection
13 (a).
14 Section 5. Reporting; protection from retaliation; immunity.
15 (a) Reporting.--Any person having reasonable cause to
16 believe that an older adult is in need of protective services
17 may report such information to the agency.
18 (b) Retaliatory; penalty.--Any person making a report or
19 cooperating with the agency, including providing testimony in
20 any administrative or judicial proceeding, and any person who is
21 the subject of the report, shall be free from any
22 discriminatory, retaliatory or disciplinary action by an
23 employer or by any other person or entity. Any person who
24 violates this subsection is subject to a civil lawsuit by the
25 reporter or the victim wherein the reporter or victim shall
26 recover treble compensatory and punitive damages or $5,000,
27 whichever is greater.
28 (c) Testimony.--Any person participating in the making of a
29 report or who provides testimony in any administrative or
30 judicial proceeding arising out of a report shall be immune from
19870H0090B2295 - 7 -
1 any civil or criminal liability on account of the report or
2 testimony, except for liability for perjury, unless the person
3 acted in bad faith or with malicious purpose. This immunity
4 shall not extend to liability for acts of abuse, neglect or
5 exploitation even if such acts are the subject of the report or
6 testimony.
7 Section 6. Investigations of reports of need for protective
8 services.
9 (a) Investigation.--It shall be the agency's responsibility
10 to provide for an investigation of each report made pursuant to
11 section 5. The investigation shall be initiated pursuant to
12 regulations issued by the department, but in no event later than
13 72 hours after receipt of the report.
14 (b) Investigation involving licensed facilities.--Any report
15 concerning older adults residing in a State-licensed facility
16 shall be investigated pursuant to procedures approved jointly by
17 the department and the Commonwealth department licensing such
18 facility. If the report concerns a resident of a State-licensed
19 facility for whom the area agency on aging provides ombudsman
20 services, the agency's ombudsman must be notified.
21 (c) Method of investigation.--The investigation shall
22 include a visit to the person who is the subject of the report
23 and consultation with others having knowledge of the facts of
24 the case. If access to the person is denied or if access to any
25 non-confidential records is denied, the agency may petition the
26 court for an order authorizing the investigation and prohibiting
27 interference therewith, which petition shall allege specific
28 facts in support thereof. The hearing on such petition shall be
29 held no sooner than three and no later than five days after
30 filing. Notice and a copy of the petition shall be served on the
19870H0090B2295 - 8 -
1 person who is the subject of the report and the persons alleged
2 to be interfering with the investigation. Notice shall be served
3 either in person or by first class mail but must be served at
4 least 48 hours prior to the hearing. The person who is the
5 subject of the report shall have counsel appointed if he does
6 not have counsel. Nothing in this subsection shall prevent the
7 agency from petitioning the court for an ex parte order upon a
8 showing that there is reasonable cause to believe that the delay
9 incident to the requirements of this subsection would cause a
10 substantial risk of life-threatening physical harm.
11 (d) Unsubstantiated report.--If, after investigation by the
12 agency, the report is unsubstantiated, the case shall be closed
13 and all information identifying the reporter and the alleged
14 abuser shall be immediately deleted from all records. For
15 purposes of substantiating a pattern of abuse, neglect, or
16 exploitation, the name of the alleged victim and any information
17 describing the alleged act of abuse, neglect or exploitation,
18 may be maintained for a period of six months, pursuant to
19 procedures established by the department.
20 (e) Substantiated report.--If, after investigation by the
21 agency, the report is substantiated, the agency shall perform a
22 client assessment and develop a service plan. Every reasonable
23 effort shall be made to secure the consent and participation of
24 the older adult in the assessment and resolution of his own need
25 for protective services. The service plan shall provide for the
26 least restrictive alternative, encouraging client self-
27 determination, appropriate family involvement and continuity of
28 care. The service plan shall be in writing and shall include a
29 recommended course of action, which may include the pursuit of
30 civil or criminal remedies. The service plan must be reviewed by
19870H0090B2295 - 9 -
1 the agency and the older adult at least every six months.
2 Section 7. Provision of services.
3 (a) Availability of protective services.--The agency shall
4 offer protective services under any of the following conditions:
5 (1) An older adult requests such services.
6 (2) An interested person requests such services on
7 behalf of an older adult.
8 (3) If, after investigation of a report, the agency
9 determines the older adult is in need of such services.
10 (b) Consent by request.--Except as provided in section 10,
11 an individual shall receive protective services voluntarily. In
12 no event may protective services be provided under this act to
13 any person who does not consent to such services or who, having
14 consented, withdraws such consent, unless such services are
15 ordered by a court, requested by a guardian of the older adult,
16 or provided under section 10. Nothing in this act shall prevent
17 the agency from petitioning for the appointment of a guardian
18 pursuant to Title 20 of the Pennsylvania Consolidated Statutes
19 (relating to decedents, estates and fiduciaries).
20 (c) Interference with services.--If any person interferes
21 with the provision of services or interferes with the right of
22 an older adult to consent to provision of services, the agency
23 may petition the court for an order enjoining such interference.
24 Section 8. Immunity of the agency and the protective services
25 provider.
26 In the absence of willful misconduct or gross negligence, the
27 agency, its director or employees, and the protective services
28 provider, its director or employees, shall be immune from civil
29 or criminal liability for any decision or action when
30 investigating a report of abuse, neglect or exploitation.
19870H0090B2295 - 10 -
1 Section 9. Confidentiality of records.
2 All records in the custody of the agency pertaining to the
3 abuse, neglect or exploitation of older adults, or to the
4 provision of protective services to older adults, shall be
5 confidential and access thereto by persons other than within
6 that agency shall only be by order of a court.
7 Section 10. Emergency protective services.
8 (a) General rule.--When, from personal observation of a law
9 enforcement officer and a representative of the agency, it
10 appears probable that an older adult will suffer immediate and
11 serious physical harm or death if not immediately placed in a
12 protective setting, that the older adult is incapable of giving
13 consent, and that the delay incident to seeking an emergency
14 order under subsection (b) would cause the older adult to incur
15 a substantial risk of life-threatening harm, the agency shall
16 transport or arrange for the transportation of the older adult
17 to an appropriate protective setting and shall immediately
18 notify the next of kin or other interested person. In all other
19 circumstances, emergency protective services may only be
20 provided pursuant to a court order issued under subsection (b).
21 Within 24 hours of transferring an older adult to a protective
22 setting pursuant to this subsection, the agency must file a
23 petition pursuant to subsection (b). The court shall hold a
24 hearing on the petition and render its decision within 48 hours
25 after the petition has been filed.
26 (b) Order of court.--
27 (1) Upon petition by an interested person, a court may
28 issue an order authorizing the provision of protective
29 services on an emergency basis to an older adult upon finding
30 on the record based on clear and convincing evidence that:
19870H0090B2295 - 11 -
1 (i) the older adult is in a situation or condition
2 which poses an imminent risk of death or serious physical
3 harm; and
4 (ii) the older adult lacks capacity to comprehend
5 the nature and consequences of remaining in that
6 situation or condition, provided that:
7 (A) refusal by the adult to accept protective
8 services shall not in itself be sufficient evidence
9 of such lack of capacity; and
10 (B) mental illness shall not in itself be
11 sufficient evidence of such lack of capacity.
12 (2) Immediately upon the filing of a petition, the court
13 shall appoint counsel for the older adult. Counsel shall be
14 appointed for all stages of proceedings under this section.
15 (3) The older adult shall be the respondent in the
16 petition filed and shall be entitled to appear in person at
17 all hearings, unless the court finds upon clear and
18 convincing evidence on the record that, because of the
19 respondent's physical condition, the risk of serious physical
20 harm would prevent the respondent's attendance.
21 (4) Upon their request, members of the older adult's
22 family may be permitted to present evidence and testimony at
23 the hearing.
24 (5) The petition must state with particularity the
25 nature of the relief requested.
26 (c) Limitations.--In issuing an emergency order, the court
27 shall adhere to the following limitations:
28 (1) Only such protective services as are necessary to
29 remove the conditions creating the emergency under subsection
30 (b)(1)(i) shall be ordered; the court shall specifically
19870H0090B2295 - 12 -
1 designate the approved services in its order.
2 (2) Protective services provided under subsection (b)
3 shall not include hospitalization or a change of residence
4 unless the court specifically finds such action is necessary
5 and gives specific approval for such action in its order.
6 (3) Protective services may be provided under subsection
7 (b) for only 72 hours. The original order may be renewed for
8 an additional 72 hours upon showing to the court that
9 continuation of the original order is necessary to remove the
10 emergency under subsection (b)(1)(i).
11 (4) The court shall describe those specific protective
12 services which are to be provided and what person or persons
13 are authorized or ordered to provide them.
14 (5) The court shall require persons acting under the
15 order to submit a written report within one week following
16 the commencement of the ordered services that describes the
17 nature of the progress, if any, that resulted from the
18 provisions of services under the order.
19 (6) Upon the expiration of the original, or renewed,
20 order, protective services shall cease unless the older adult
21 consents to their continuation or unless a temporary guardian
22 who has been appointed pursuant to Title 20 of the
23 Pennsylvania Consolidated Statutes (relating to decedents,
24 estates and fiduciaries) consents to their continuation.
25 (7) A finding of being in need of emergency protective
26 services under this act shall not be deemed to be a finding
27 of incompetency under Title 20 of the Pennsylvania
28 Consolidated Statutes, and the older adult shall not be
29 deprived of any rights except as specifically provided for in
30 the order under subsection (b).
19870H0090B2295 - 13 -
1 Section 11. Regulations; enforcement.
2 (a) Promulgation of regulations.--The department shall
3 promulgate the rules and regulations to carry out this act and
4 shall be responsible for presenting to the General Assembly
5 annually a report on the programs and services performed.
6 (b) Enforcement.--This act shall be enforced only after
7 promulgation of regulations by the department, which shall occur
8 no later than 12 months following passage of this act.
9 Section 12. Funds for payment of administration of act;
10 appropriation; lapse.
11 (a) Funds.--Funds necessary to administer this act shall be
12 provided by annual appropriation by the General Assembly from
13 the State Lottery Fund established by the act of August 26, 1971
14 (P.L.351, No.91), known as the State Lottery Law.
15 (b) Appropriation.--The sum of $2,000,000 is hereby
16 appropriated from the State Lottery Fund to the Department of
17 Aging.
18 (c) Lapse.--That part of the appropriation in subsection (b)
19 which is unexpended, uncommitted or unencumbered as of June 30,
20 1987, shall automatically lapse as of that date.
21 Section 13. Repeals.
22 (a) Specific act.--The provisions of the act of August 26,
23 1971 (P.L.351, No.91), known as the State Lottery Law, relating
24 to disposition of moneys received from the operation of the
25 State Lottery are repealed insofar as they are inconsistent with
26 the provisions of this act.
27 (b) General repeal.--All other acts and parts of acts are
28 repealed insofar as they are inconsistent with this act.
29 Section 14. Effective date.
30 This act shall take effect immediately.
19870H0090B2295 - 14 -
1 SECTION 1. SHORT TITLE. <--
2 THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE OLDER ADULTS
3 PROTECTIVE SERVICES ACT.
4 SECTION 2. LEGISLATIVE POLICY.
5 IT IS DECLARED THE POLICY OF THE COMMONWEALTH OF PENNSYLVANIA
6 THAT OLDER ADULTS WHO LACK THE CAPACITY TO PROTECT THEMSELVES
7 AND ARE AT IMMINENT RISK OF ABUSE, NEGLECT, EXPLOITATION OR
8 ABANDONMENT SHALL HAVE ACCESS TO AND BE PROVIDED WITH SERVICES
9 NECESSARY TO PROTECT THEIR HEALTH, SAFETY AND WELFARE. IT IS NOT
10 THE PURPOSE OF THIS ACT TO PLACE RESTRICTIONS UPON THE PERSONAL
11 LIBERTY OF INCAPACITATED OLDER ADULTS, BUT THIS ACT SHOULD BE
12 LIBERALLY CONSTRUED TO ASSURE THE AVAILABILITY OF PROTECTIVE
13 SERVICES TO ALL OLDER ADULTS IN NEED OF THEM. SUCH SERVICES
14 SHALL SAFEGUARD THE RIGHTS OF INCAPACITATED OLDER ADULTS WHILE
15 PROTECTING THEM FROM ABUSE, NEGLECT, EXPLOITATION AND
16 ABANDONMENT. IT IS THE INTENT OF THE GENERAL ASSEMBLY TO PROVIDE
17 FOR THE DETECTION AND REDUCTION, CORRECTION OR ELIMINATION OF
18 ABUSE, NEGLECT, EXPLOITATION AND ABANDONMENT, AND TO ESTABLISH A
19 PROGRAM OF PROTECTIVE SERVICES FOR OLDER ADULTS IN NEED OF THEM.
20 SECTION 3. DEFINITIONS.
21 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
22 HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
23 CONTEXT CLEARLY INDICATES OTHERWISE:
24 "ABANDONMENT." THE DESERTION OF AN OLDER ADULT BY A
25 CARETAKER.
26 "ABUSE." THE OCCURRENCE OF ONE OR MORE OF THE FOLLOWING
27 ACTS:
28 (1) THE INFLICTION OF INJURY, UNREASONABLE CONFINEMENT,
29 INTIMIDATION OR PUNISHMENT WITH RESULTING PHYSICAL HARM, PAIN
30 OR MENTAL ANGUISH.
19870H0090B2295 - 15 -
1 (2) THE WILLFUL DEPRIVATION BY A CARETAKER OF GOODS OR
2 SERVICES WHICH ARE NECESSARY TO MAINTAIN PHYSICAL OR MENTAL
3 HEALTH.
4 (3) SEXUAL HARASSMENT, RAPE OR ABUSE, AS DEFINED IN THE
5 ACT OF OCTOBER 7, 1976 (P.L.1090, NO.218), KNOWN AS THE
6 PROTECTION FROM ABUSE ACT.
7 NO OLDER ADULT SHALL BE FOUND TO BE ABUSED SOLELY ON THE GROUNDS
8 OF ENVIRONMENTAL FACTORS WHICH ARE BEYOND THE CONTROL OF THE
9 OLDER ADULT OR THE CARETAKER, SUCH AS INADEQUATE HOUSING,
10 FURNISHINGS, INCOME, CLOTHING OR MEDICAL CARE.
11 "AGENCY." THE LOCAL PROVIDER OF PROTECTIVE SERVICES, WHICH
12 IS THE AREA AGENCY ON AGING OR THE AGENCY DESIGNATED BY THE AREA
13 AGENCY ON AGING TO PROVIDE PROTECTIVE SERVICES IN THE AREA
14 AGENCY'S PLANNING AND SERVICE AREA.
15 "CARETAKER." AN INDIVIDUAL OR INSTITUTION THAT HAS ASSUMED
16 THE RESPONSIBILITY FOR THE PROVISION OF CARE NEEDED TO MAINTAIN
17 THE PHYSICAL OR MENTAL HEALTH OF AN OLDER ADULT. THIS
18 RESPONSIBILITY MAY ARISE VOLUNTARILY, BY CONTRACT, BY RECEIPT OF
19 PAYMENT FOR CARE, AS A RESULT OF FAMILY RELATIONSHIP, OR BY
20 ORDER OF A COURT OF COMPETENT JURISDICTION. IT IS NOT THE INTENT
21 OF THIS ACT TO IMPOSE RESPONSIBILITY ON ANY INDIVIDUAL IF SUCH
22 RESPONSIBILITY WOULD NOT OTHERWISE EXIST IN LAW.
23 "CLIENT ASSESSMENT." SOCIAL, PHYSICAL AND PSYCHOLOGICAL
24 FINDINGS ALONG WITH A DESCRIPTION OF THE PERSON'S CURRENT
25 RESOURCES AND NEEDS.
26 "COURT." A COURT OF COMMON PLEAS OR A DISTRICT MAGISTRATE
27 COURT, WHERE APPLICABLE.
28 "DEPARTMENT." THE DEPARTMENT OF AGING OF THE COMMONWEALTH.
29 "EXPLOITATION." AN ACT OR COURSE OF CONDUCT BY A CARETAKER
30 OR OTHER PERSON AGAINST AN OLDER ADULT OR AN OLDER ADULT'S
19870H0090B2295 - 16 -
1 RESOURCES, WITHOUT THE INFORMED CONSENT OF THE OLDER ADULT OR
2 WITH CONSENT OBTAINED THROUGH MISREPRESENTATION, COERCION OR
3 THREATS OF FORCE, THAT RESULTS IN MONETARY, PERSONAL OR OTHER
4 BENEFIT, GAIN OR PROFIT FOR THE PERPETRATOR OR MONETARY OR
5 PERSONAL LOSS TO THE OLDER ADULT.
6 "NEGLECT." THE FAILURE TO PROVIDE FOR ONESELF OR THE FAILURE
7 OF A CARETAKER TO PROVIDE GOODS OR SERVICES ESSENTIAL TO AVOID A
8 CLEAR AND SERIOUS THREAT TO PHYSICAL OR MENTAL HEALTH. NO OLDER
9 ADULT WHO DOES NOT CONSENT TO THE PROVISION OF PROTECTIVE
10 SERVICES SHALL BE FOUND TO BE NEGLECTED SOLELY ON THE GROUNDS OF
11 ENVIRONMENTAL FACTORS WHICH ARE BEYOND THE CONTROL OF THE OLDER
12 ADULT OR THE CARETAKER, SUCH AS INADEQUATE HOUSING, FURNISHINGS,
13 INCOME, CLOTHING OR MEDICAL CARE.
14 "OLDER ADULT." A PERSON WITHIN THE JURISDICTION OF THE
15 COMMONWEALTH WHO IS 60 YEARS OF AGE OR OLDER.
16 "OLDER ADULT IN NEED OF PROTECTIVE SERVICES." AN
17 INCAPACITATED OLDER ADULT WHO IS UNABLE TO PERFORM OR OBTAIN
18 SERVICES THAT ARE NECESSARY TO MAINTAIN PHYSICAL OR MENTAL
19 HEALTH, FOR WHOM THERE IS NO RESPONSIBLE CARETAKER AND WHO IS AT
20 IMMINENT RISK OF DANGER TO HIS PERSON OR PROPERTY.
21 "PROTECTIVE SERVICES." THOSE ACTIVITIES, RESOURCES AND
22 SUPPORTS PROVIDED TO OLDER ADULTS UNDER THIS ACT TO DETECT,
23 PREVENT, REDUCE OR ELIMINATE ABUSE, NEGLECT, EXPLOITATION AND
24 ABANDONMENT.
25 "PROTECTIVE SETTING." A SETTING CHOSEN BY THE AGENCY WHERE
26 SERVICES CAN BE PROVIDED IN THE LEAST RESTRICTIVE ENVIRONMENT TO
27 PROTECT THE PHYSICAL AND MENTAL WELL-BEING OF THE OLDER ADULT.
28 "SECRETARY." THE SECRETARY OF AGING OF THE COMMONWEALTH.
29 "SERVICE PLAN." A WRITTEN PLAN DEVELOPED BY THE AGENCY ON
30 THE BASIS OF COMPREHENSIVE ASSESSMENT OF A CLIENT'S NEED WHICH
19870H0090B2295 - 17 -
1 DESCRIBES IDENTIFIED NEEDS, GOALS TO BE ACHIEVED AND SPECIFIC
2 SERVICES TO SUPPORT GOAL ATTAINMENT, WITH REGULAR FOLLOW-UP AND
3 PREDETERMINED REASSESSMENT OF CLIENT PROGRESS. SPECIFIC SERVICES
4 TO SUPPORT GOAL ATTAINMENT MAY INCLUDE, BUT IS NOT LIMITED TO,
5 HOMEMAKER SERVICES, HOME-DELIVERED MEALS, ATTENDANT CARE, OTHER
6 IN-HOME SERVICES, EMERGENCY SHELTER OR FOOD, LEGAL AID SERVICES,
7 TRANSPORTATION AND OTHER SUCH SERVICES. SERVICE PLANS ARE
8 COOPERATIVELY DEVELOPED BY THE AGENCY STAFF, THE CLIENT OR THE
9 CLIENT'S APPOINTED GUARDIAN, AND OTHER FAMILY MEMBERS WHEN
10 APPROPRIATE. THE PLAN SHALL ALSO ADDRESS, WHERE APPLICABLE,
11 SPECIAL NEEDS OF OTHER MEMBERS OF THE HOUSEHOLD UNIT AS THEY MAY
12 AFFECT THE OLDER ADULT'S NEED FOR PROTECTIVE SERVICES.
13 SECTION 4. DUTIES OF DEPARTMENT AND AREA AGENCIES ON AGING.
14 (A) PUBLIC INFORMATION AND INTERDEPARTMENTAL CONSULTATION.--
15 THE DEPARTMENT SHALL CONDUCT AN ONGOING CAMPAIGN DESIGNED TO
16 INFORM AND EDUCATE OLDER ADULTS, PROFESSIONALS AND THE GENERAL
17 PUBLIC ABOUT THE NEED FOR AN AVAILABILITY OF PROTECTIVE SERVICES
18 UNDER THIS ACT. THE DEPARTMENT SHALL CONSULT WITH OTHER
19 DEPARTMENTS OF THE COMMONWEALTH ON THE DESIGN AND IMPLEMENTATION
20 OF THE ONGOING PUBLIC AWARENESS CAMPAIGN. THE DEPARTMENT SHALL
21 ALSO CONSIDER THE CONCERNS OF AREA AGENCIES ON AGING AND THE
22 ENTITIES IDENTIFIED BY THEM UNDER SUBSECTION (C).
23 (B) STAFF TRAINING.--THE DEPARTMENT SHALL ESTABLISH MINIMUM
24 STANDARDS OF TRAINING AND EXPERIENCE WHICH PROTECTIVE SERVICES
25 PROVIDERS FUNDED BY THE DEPARTMENT SHALL BE REQUIRED TO FOLLOW
26 IN THE SELECTION AND ASSIGNMENT OF STAFF FOR THE PROVISION OF
27 PROTECTIVE SERVICES.
28 (C) PROTECTIVE SERVICES PLANS.--EACH AREA AGENCY ON AGING
29 SHALL INCLUDE A PROTECTIVE SERVICES PLAN AS PART OF ITS ANNUAL
30 PLAN. THE PLAN SHALL DESCRIBE THE LOCAL IMPLEMENTATION OF THIS
19870H0090B2295 - 18 -
1 ACT, INCLUDING THE ORGANIZATION, STAFFING, MODE OF OPERATIONS
2 AND FINANCING OF PROTECTIVE SERVICES, AS WELL AS THE PROVISIONS
3 MADE FOR PURCHASE OF SERVICES, INTERAGENCY RELATIONS,
4 INTERAGENCY AGREEMENTS, SERVICE REFERRAL MECHANISMS AND LOCUS OF
5 RESPONSIBILITY FOR CASES WITH MULTISERVICE AGENCY NEEDS. THE
6 DESCRIPTION OF THE METHODS THAT WILL BE USED BY THE AGENCY, ITS
7 DESIGNEES AND ITS SERVICE PROVIDERS TO ASSURE THE PRIVACY OF
8 OLDER ADULTS RECEIVING SERVICES AND THE CONFIDENTIALITY OF ALL
9 RECORDS SHALL BE ESTABLISHED BY THE DEPARTMENT. THE DEPARTMENT
10 SHALL ESTABLISH A SCHEDULE FOR THE SUBMISSION AND APPROVAL OF
11 THE PLANS. THE PLAN SHALL INCLUDE A LIST OF ALL ENTITIES,
12 WHETHER PUBLIC OR PRIVATE, THAT HAVE BEEN IDENTIFIED BY THE AREA
13 AGENCY ON AGING AS HAVING SUBSTANTIAL CONTACT WITH POTENTIAL
14 VICTIMS OR PERPETRATORS OF ABUSE, NEGLECT, EXPLOITATION AND
15 ABANDONMENT. THIS LIST SHALL BE SUBMITTED TO THE DEPARTMENT FOR
16 PURPOSES OF THE PUBLIC INFORMATION CAMPAIGN UNDER SUBSECTION
17 (A).
18 SECTION 5. REPORTING; PROTECTION FROM RETALIATION; IMMUNITY.
19 (A) REPORTING.--ANY PERSON HAVING REASONABLE CAUSE TO
20 BELIEVE THAT AN OLDER ADULT IS IN NEED OF PROTECTIVE SERVICES
21 MAY REPORT SUCH INFORMATION TO THE AGENCY WHICH IS THE LOCAL
22 PROVIDER OF PROTECTIVE SERVICES.
23 (B) RECEIVING REPORTS.--THE AGENCY SHALL BE CAPABLE OF
24 RECEIVING REPORTS OF OLDER ADULTS IN NEED OF PROTECTIVE SERVICES
25 24 HOURS A DAY, SEVEN DAYS A WEEK (INCLUDING HOLIDAYS). THIS
26 CAPABILITY MAY INCLUDE THE USE OF A LOCAL EMERGENCY RESPONSE
27 SYSTEM OR A CRISIS INTERVENTION AGENCY, PROVIDED THAT ACCESS CAN
28 BE MADE TO A PROTECTIVE SERVICES CASEWORKER IN APPROPRIATE
29 EMERGENCY SITUATIONS AS SET FORTH IN REGULATIONS PROMULGATED BY
30 THE DEPARTMENT. ALL REPORTS RECEIVED ORALLY UNDER THIS SECTION
19870H0090B2295 - 19 -
1 SHALL BE REDUCED TO WRITING IMMEDIATELY BY THE PERSON WHO
2 RECEIVES THE REPORT.
3 (C) RETALIATORY ACTION; PENALTY.--ANY PERSON MAKING A REPORT
4 OR COOPERATING WITH THE AGENCY, INCLUDING PROVIDING TESTIMONY IN
5 ANY ADMINISTRATIVE OR JUDICIAL PROCEEDING, AND THE VICTIM, SHALL
6 BE FREE FROM ANY DISCRIMINATORY, RETALIATORY OR DISCIPLINARY
7 ACTION BY AN EMPLOYER OR BY ANY OTHER PERSON OR ENTITY. ANY
8 PERSON WHO VIOLATES THIS SUBSECTION IS SUBJECT TO A CIVIL
9 LAWSUIT BY THE REPORTER OR THE VICTIM WHEREIN THE REPORTER OR
10 VICTIM SHALL RECOVER TREBLE COMPENSATORY AND PUNITIVE DAMAGES OR
11 $5,000, WHICHEVER IS GREATER.
12 (D) IMMUNITY.--ANY PERSON PARTICIPATING IN THE MAKING OF A
13 REPORT OR WHO PROVIDES TESTIMONY IN ANY ADMINISTRATIVE OR
14 JUDICIAL PROCEEDING ARISING OUT OF A REPORT SHALL BE IMMUNE FROM
15 ANY CIVIL OR CRIMINAL LIABILITY ON ACCOUNT OF THE REPORT OR
16 TESTIMONY UNLESS THE PERSON ACTED IN BAD FAITH OR WITH MALICIOUS
17 PURPOSE. THIS IMMUNITY SHALL NOT EXTEND TO LIABILITY FOR ACTS OF
18 ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT, EVEN IF SUCH ACTS
19 ARE THE SUBJECT OF THE REPORT OR TESTIMONY.
20 SECTION 6. INVESTIGATIONS OF REPORTS OF NEED FOR PROTECTIVE
21 SERVICES.
22 (A) INVESTIGATION.--IT SHALL BE THE AGENCY'S RESPONSIBILITY
23 TO PROVIDE FOR AN INVESTIGATION OF EACH REPORT MADE UNDER
24 SECTION 5. THE INVESTIGATION SHALL BE INITIATED WITHIN 72 HOURS
25 AFTER THE RECEIPT OF THE REPORT AND SHALL BE CARRIED OUT UNDER
26 REGULATIONS ISSUED BY THE DEPARTMENT. THESE REGULATIONS SHALL
27 PROVIDE FOR THE METHODS OF CONDUCTING INVESTIGATIONS UNDER THIS
28 SECTION AND SHALL ASSURE THAT STEPS ARE TAKEN TO AVOID ANY
29 CONFLICT OF INTEREST BETWEEN THE INVESTIGATOR AND SERVICE
30 DELIVERY FUNCTIONS.
19870H0090B2295 - 20 -
1 (B) INVESTIGATION INVOLVING LICENSED FACILITIES.--ANY REPORT
2 CONCERNING OLDER ADULTS RESIDING IN A STATE-LICENSED FACILITY
3 SHALL BE INVESTIGATED UNDER PROCEDURES DEVELOPED BY THE
4 DEPARTMENT IN CONSULTATION WITH THE STATE AGENCY LICENSING SUCH
5 FACILITY. IF THE REPORT CONCERNS A RESIDENT OF A STATE-LICENSED
6 FACILITY FOR WHOM THE AREA AGENCY ON AGING PROVIDES OMBUDSMAN
7 SERVICES, THE OMBUDSMAN OF THE AREA AGENCY ON AGING MUST BE
8 NOTIFIED.
9 (C) UNSUBSTANTIATED REPORTS.--IF, AFTER INVESTIGATION BY THE
10 AGENCY, THE REPORT IS UNSUBSTANTIATED, THE CASE SHALL BE CLOSED
11 AND ALL INFORMATION IDENTIFYING THE REPORTER AND THE ALLEGED
12 ABUSER SHALL BE IMMEDIATELY DELETED FROM ALL RECORDS. FOR
13 PURPOSES OF SUBSTANTIATING A PATTERN OF ABUSE, NEGLECT,
14 EXPLOITATION OR ABANDONMENT, THE NAME OF THE ALLEGED VICTIM AND
15 ANY INFORMATION DESCRIBING THE ALLEGED ACT OF ABUSE, NEGLECT,
16 EXPLOITATION OR ABANDONMENT MAY BE MAINTAINED FOR A PERIOD OF
17 SIX MONTHS UNDER PROCEDURES ESTABLISHED BY THE DEPARTMENT.
18 (D) SUBSTANTIATED REPORTS.--IF THE REPORT IS SUBSTANTIATED
19 BY THE AGENCY, OR IF THE CLIENT ASSESSMENT IS NECESSARY IN ORDER
20 TO DETERMINE WHETHER OR NOT THE REPORT IS SUBSTANTIATED, THE
21 AGENCY SHALL PROVIDE FOR A TIMELY CLIENT ASSESSMENT IF THE OLDER
22 ADULT CONSENTS TO AN ASSESSMENT. UPON COMPLETION OF THE
23 ASSESSMENT, WRITTEN FINDINGS SHALL BE PREPARED WHICH SHALL
24 INCLUDE RECOMMENDED ACTION. THIS SERVICE PLAN SHALL PROVIDE FOR
25 THE LEAST RESTRICTIVE ALTERNATIVE, ENCOURAGING CLIENT SELF-
26 DETERMINATION AND CONTINUITY OF CARE. THE SERVICE PLAN SHALL BE
27 IN WRITING AND SHALL INCLUDE A RECOMMENDED COURSE OF ACTION,
28 WHICH MAY INCLUDE THE PURSUIT OF CIVIL OR CRIMINAL REMEDIES. IF
29 AN OLDER ADULT FOUND TO BE IN NEED OF PROTECTIVE SERVICES DOES
30 NOT CONSENT TO A CLIENT ASSESSMENT OR THE DEVELOPMENT OF A
19870H0090B2295 - 21 -
1 SERVICE PLAN, THE AGENCY MAY APPLY TO THE CASE THE PROVISIONS OF
2 SECTION 10.
3 SECTION 7. PROVISION OF SERVICES; ACCESS TO RECORDS AND
4 PERSONS.
5 (A) AVAILABILITY OF PROTECTIVE SERVICES.--THE AGENCY SHALL
6 OFFER PROTECTIVE SERVICES UNDER ANY OF THE FOLLOWING CONDITIONS:
7 (1) AN OLDER ADULT REQUESTS SUCH SERVICES.
8 (2) ANOTHER INTERESTED PERSON REQUESTS SUCH SERVICES ON
9 BEHALF OF AN OLDER ADULT.
10 (3) IF, AFTER INVESTIGATION OF A REPORT, THE AGENCY
11 DETERMINES THE OLDER ADULT IS IN NEED OF SUCH SERVICES.
12 (B) CONSENT BY REQUEST.--EXCEPT AS PROVIDED IN SECTION 10,
13 AN INDIVIDUAL SHALL RECEIVE PROTECTIVE SERVICES VOLUNTARILY. IN
14 NO EVENT MAY PROTECTIVE SERVICES BE PROVIDED UNDER THIS ACT TO
15 ANY PERSON WHO DOES NOT CONSENT TO SUCH SERVICES OR WHO, HAVING
16 CONSENTED, WITHDRAWS SUCH CONSENT, UNLESS SUCH SERVICES ARE
17 ORDERED BY A COURT, REQUESTED BY A GUARDIAN OF THE OLDER ADULT
18 OR PROVIDED UNDER SECTION 10. NOTHING IN THIS ACT SHALL PREVENT
19 THE AGENCY FROM PETITIONING FOR THE APPOINTMENT OF A GUARDIAN
20 PURSUANT TO TITLE 20 OF THE PENNSYLVANIA CONSOLIDATED STATUTES
21 (RELATING TO DECEDENTS, ESTATES AND FIDUCIARIES).
22 (C) INTERFERENCE WITH SERVICES.--IF ANY PERSON INTERFERES
23 WITH THE PROVISION OF SERVICES OR INTERFERES WITH THE RIGHT OF
24 AN OLDER ADULT TO CONSENT TO PROVISION OF SERVICES, THE AGENCY
25 MAY PETITION THE COURT FOR AN ORDER ENJOINING SUCH INTERFERENCE.
26 (D) ACCESS TO RECORDS.--THE AGENCY SHALL HAVE ACCESS TO ALL
27 RECORDS RELEVANT TO:
28 (1) INVESTIGATIONS OF REPORTS UNDER SECTION 6.
29 (2) ASSESSMENT OF CLIENT NEED.
30 (3) SERVICE PLANNING WHEN AN OLDER ADULT'S NEED FOR
19870H0090B2295 - 22 -
1 PROTECTIVE SERVICES HAS BEEN OR IS BEING ESTABLISHED.
2 (4) THE DELIVERY OF SERVICES ARRANGED FOR UNDER THE
3 SERVICE PLAN DEVELOPED BY THE AGENCY TO RESPOND TO AN OLDER
4 ADULT'S ASSESSED NEED FOR SPECIFIC SERVICES.
5 (E) ACCESS TO PERSONS.--THE AGENCY SHALL HAVE ACCESS TO
6 OLDER PERSONS WHO HAVE BEEN REPORTED TO BE IN NEED OF PROTECTIVE
7 SERVICES IN ORDER TO:
8 (1) INVESTIGATE REPORTS UNDER SECTION 6.
9 (2) ASSESS CLIENT NEED AND DEVELOP A SERVICE PLAN FOR
10 ADDRESSING NEEDS DETERMINED.
11 (3) PROVIDE FOR THE DELIVERY OF SERVICES BY THE AGENCY
12 OR OTHER SERVICE PROVIDER ARRANGED FOR UNDER THE SERVICE PLAN
13 DEVELOPED BY THE AGENCY.
14 (F) DENIAL OF ACCESS TO PERSONS.--IF THE AGENCY IS DENIED
15 ACCESS TO AN OLDER ADULT REPORTED TO BE IN NEED OF PROTECTIVE
16 SERVICES AND ACCESS IS NECESSARY TO COMPLETE THE INVESTIGATION
17 OR THE CLIENT ASSESSMENT AND SERVICE PLAN, OR THE DELIVERY OF
18 NEEDED SERVICES IN ORDER TO PREVENT FURTHER ABUSE, NEGLECT,
19 EXPLOITATION OR ABANDONMENT OF THE OLDER ADULT REPORTED TO BE IN
20 NEED OF PROTECTIVE SERVICES, THE AGENCY MAY PETITION THE COURT
21 FOR AN ORDER TO REQUIRE THE APPROPRIATE ACCESS WHEN EITHER OF
22 THE FOLLOWING CONDITIONS APPLY:
23 (1) THE CARETAKER OR A THIRD PARTY HAS INTERFERED WITH
24 THE COMPLETION OF THE INVESTIGATION OR THE CLIENT ASSESSMENT
25 AND SERVICE PLAN OR THE DELIVERY OF SERVICES.
26 (2) THE AGENCY CAN DEMONSTRATE THAT THE OLDER ADULT
27 REPORTED TO BE IN NEED OF PROTECTIVE SERVICES IS DENYING
28 ACCESS BECAUSE OF COERCION, EXTORTION OR JUSTIFIABLE FEAR OF
29 FUTURE ABUSE, NEGLECT, OR EXPLOITATION OR ABANDONMENT.
30 (G) ACCESS BY CONSENT.--THE AGENCY'S ACCESS TO CONFIDENTIAL
19870H0090B2295 - 23 -
1 RECORDS HELD BY OTHER AGENCIES OR INDIVIDUALS AND THE AGENCY'S
2 ACCESS TO AN OLDER ADULT REPORTED TO BE IN NEED OF PROTECTIVE
3 SERVICES SHALL REQUIRE THE CONSENT OF THE OLDER ADULT OR A
4 COURT-APPOINTED GUARDIAN EXCEPT AS PROVIDED FOR UNDER THIS
5 SECTION OR SECTION 10.
6 (H) DENIAL OF ACCESS TO RECORDS.--IF THE AGENCY IS DENIED
7 ACCESS TO RECORDS NECESSARY FOR THE COMPLETION OF A PROPER
8 INVESTIGATION OF A REPORT OR A CLIENT ASSESSMENT AND SERVICE
9 PLAN, OR THE DELIVERY OF NEEDED SERVICES IN ORDER TO PREVENT
10 FURTHER ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT OF THE OLDER
11 ADULT REPORTED TO BE IN NEED OF PROTECTIVE SERVICES, THE AGENCY
12 MAY PETITION THE COURT OF COMMON PLEAS FOR AN ORDER REQUIRING
13 THE APPROPRIATE ACCESS WHEN EITHER OF THE FOLLOWING CONDITIONS
14 APPLY:
15 (1) THE OLDER ADULT HAS PROVIDED WRITTEN CONSENT FOR ANY
16 CONFIDENTIAL RECORDS TO BE DISCLOSED AND THE KEEPER OF THE
17 RECORDS DENIES ACCESS.
18 (2) THE AGENCY CAN DEMONSTRATE THAT THE OLDER ADULT IS
19 DENYING ACCESS TO RECORDS BECAUSE OF INCOMPETENCE, COERCION,
20 EXTORTION OR JUSTIFIABLE FEAR OF FUTURE ABUSE, NEGLECT,
21 EXPLOITATION OR ABANDONMENT.
22 SECTION 8. IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY.
23 IN THE ABSENCE OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, THE
24 AGENCY, THE DIRECTOR, EMPLOYEES OF THE AGENCY, PROTECTIVE
25 SERVICES WORKERS OR EMPLOYEES OF THE DEPARTMENT SHALL NOT BE
26 CIVILLY OR CRIMINALLY LIABLE FOR ANY DECISION OR ACTION OR
27 RESULTING CONSEQUENCE OF DECISIONS OR ACTION WHEN ACTING UNDER
28 AND ACCORDING TO THE PROVISIONS OF THIS ACT.
29 SECTION 9. CONFIDENTIALITY OF RECORDS.
30 (A) GENERAL RULE.--INFORMATION CONTAINED IN REPORTS, RECORDS
19870H0090B2295 - 24 -
1 OF INVESTIGATION, CLIENT ASSESSMENT AND SERVICE PLANS SHALL BE
2 CONSIDERED CONFIDENTIAL AND SHALL BE MAINTAINED UNDER
3 REGULATIONS PROMULGATED BY THE DEPARTMENT TO SAFEGUARD
4 CONFIDENTIALITY. EXCEPT AS PROVIDED BELOW, THIS INFORMATION
5 SHALL NOT BE DISCLOSED TO ANYONE OUTSIDE THE AGENCY OTHER THAN
6 TO A COURT OF COMPETENT JURISDICTION OR PURSUANT TO A COURT
7 ORDER.
8 (B) LIMITED ACCESS TO THE AGENCY'S PROTECTIVE SERVICES
9 RECORDS.--
10 (1) IN THE EVENT THAT AN INVESTIGATION BY THE AGENCY
11 RESULTS IN A REPORT OF CRIMINAL CONDUCT, LAW ENFORCEMENT
12 OFFICIALS SHALL HAVE ACCESS TO ALL RELEVANT RECORDS
13 MAINTAINED BY THE AGENCY OR THE DEPARTMENT.
14 (2) IN ARRANGING SPECIFIC SERVICES TO CARRY OUT SERVICE
15 PLANS, THE AGENCY MAY DISCLOSE TO APPROPRIATE SERVICE
16 PROVIDERS SUCH INFORMATION AS MAY BE NECESSARY TO INITIATE
17 THE DELIVERY OF SERVICES.
18 (3) A SUBJECT OF A REPORT MADE UNDER SECTION 5 MAY
19 RECEIVE, UPON WRITTEN REQUEST, ALL INFORMATION CONTAINED IN
20 THE REPORT EXCEPT THAT PROHIBITED FROM BEING DISCLOSED BY
21 PARAGRAPH (4).
22 (4) THE RELEASE OF INFORMATION THAT WOULD IDENTIFY THE
23 PERSON WHO MADE A REPORT OF SUSPECTED ABUSE, NEGLECT,
24 EXPLOITATION OR ABANDONMENT OR PERSON WHO COOPERATED IN A
25 SUBSEQUENT INVESTIGATION, IS HEREBY PROHIBITED UNLESS THE
26 SECRETARY CAN DETERMINE THAT SUCH A RELEASE WILL NOT BE
27 DETRIMENTAL TO THE SAFETY OF SUCH PERSON.
28 (5) WHEN THE DEPARTMENT IS INVOLVED IN THE HEARING OF AN
29 APPEAL BY A SUBJECT OF A REPORT MADE UNDER SECTION 5, THE
30 APPROPRIATE DEPARTMENT STAFF SHALL HAVE ACCESS TO ALL
19870H0090B2295 - 25 -
1 INFORMATION IN THE REPORT RECORD RELEVANT TO THE APPEAL.
2 (6) FOR THE PURPOSES OF MONITORING AGENCY PERFORMANCE,
3 APPROPRIATE STAFF OF THE DEPARTMENT MAY ACCESS AGENCY
4 PROTECTIVE SERVICES RECORDS.
5 SECTION 10. INVOLUNTARY INTERVENTION BY EMERGENCY COURT ORDER.
6 (A) EMERGENCY PETITION.--WHERE THERE WAS CLEAR AND
7 CONVINCING EVIDENCE THAT IF PROTECTIVE SERVICES ARE NOT
8 PROVIDED, THE PERSON TO BE PROTECTED IS AT IMMINENT RISK OF
9 DEATH OR SERIOUS PHYSICAL HARM, THE AGENCY MAY PETITION THE
10 COURT FOR AN EMERGENCY ORDER TO PROVIDE THE NECESSARY SERVICES.
11 THE COURTS OF COMMON PLEAS OF EACH JUDICIAL DISTRICT SHALL
12 ENSURE THAT A JUDGE OR DISTRICT JUSTICE IS AVAILABLE ON A 24-
13 HOUR A DAY, 365 DAYS A YEAR BASIS TO ACCEPT AND DECIDE ON
14 PETITIONS FOR AN EMERGENCY COURT ORDER UNDER THIS SECTION
15 WHENEVER THE AGENCY DETERMINES THAT A DELAY UNTIL NORMAL COURT
16 HOURS WOULD SIGNIFICANTLY INCREASE THE DANGER THE OLDER ADULT
17 FACES.
18 (B) LIMITED ORDER.--THE COURT, AFTER FINDING CLEAR AND
19 CONVINCING EVIDENCE OF THE NEED FOR AN EMERGENCY ORDER, SHALL
20 ORDER ONLY SUCH SERVICES AS ARE NECESSARY TO REMOVE THE
21 CONDITIONS CREATING THE ESTABLISHED NEED.
22 (C) RIGHT TO COUNSEL.--IN ORDER TO PROTECT THE RIGHTS OF AN
23 OLDER ADULT FOR WHOM PROTECTIVE SERVICES ARE BEING ORDERED, AN
24 EMERGENCY COURT ORDER UNDER THIS SECTION SHALL PROVIDE THAT THE
25 OLDER ADULT HAS THE RIGHT TO LEGAL COUNSEL. IF THE OLDER ADULT
26 IS UNABLE TO PROVIDE FOR COUNSEL, SUCH COUNSEL SHALL BE
27 APPOINTED BY THE COURT.
28 (D) FORCIBLE ENTRY.--WHERE IT IS NECESSARY TO FORCIBLY ENTER
29 PREMISES AFTER OBTAINING A COURT ORDER, A PEACE OFFICER MAY DO
30 SO, ACCOMPANIED BY A REPRESENTATIVE OF THE AGENCY.
19870H0090B2295 - 26 -
1 (E) HEALTH AND SAFETY REQUIREMENTS.--THE AGENCY SHALL TAKE
2 REASONABLE STEPS TO ASSURE THAT WHILE THE PERSON IS RECEIVING
3 SERVICES UNDER AN EMERGENCY COURT ORDER, THE HEALTH AND SAFETY
4 NEEDS OF ANY OF THE PERSON'S DEPENDENTS ARE MET AND THAT
5 PERSONAL PROPERTY AND THE DWELLING THE PERSON OCCUPIES ARE
6 SECURE.
7 (F) EXCLUSION OF REMEDY.--NOTHING IN THIS ACT SHALL BE
8 INTERPRETED TO DENY ANY OLDER ADULT ACCESS TO THE EMERGENCY
9 MEDICAL SERVICES OR POLICE PROTECTION THAT WOULD BE PROVIDED TO
10 ANYONE, REGARDLESS OF AGE, IN SIMILAR CIRCUMSTANCES.
11 SECTION 11. INDIVIDUAL RIGHTS.
12 (A) RIGHTS OF PROTECTIVE SERVICES CLIENTS.--THE AGENCY SHALL
13 OBSERVE THE FOLLOWING MINIMUM REQUIREMENTS TO SAFEGUARD THE
14 RIGHTS OF AN OLDER ADULT WHO IS REPORTED TO BE IN NEED OF
15 PROTECTIVE SERVICES:
16 (1) THE AGENCY SHALL DISCREETLY NOTIFY THE OLDER PERSON
17 DURING THE INVESTIGATION THAT A REPORT HAS BEEN MADE AND
18 SHALL PROVIDE THE PERSON WITH A BRIEF SUMMARY OF THE NATURE
19 OF THE REPORT.
20 (2) AS PROVIDED UNDER SECTION 9(B)(3), THE OLDER ADULT
21 MAY REQUEST, AND THE AGENCY SHALL PROVIDE, ADDITIONAL
22 INFORMATION CONTAINED IN THE REPORT.
23 (3) ANY DENIAL OF SERVICES BY THE DEPARTMENT OR AN
24 AUTHORIZED AGENCY UNDER THIS ACT MAY BE APPEALED ACCORDING TO
25 THE PROVISIONS OF THE RULES AND REGULATIONS ISSUED BY THE
26 DEPARTMENT UNDER ARTICLE XXII-A OF THE ACT OF APRIL 9, 1929
27 (P.L.177, NO.175), KNOWN AS THE ADMINISTRATIVE CODE OF 1929.
28 (4) NOTHING IN THIS ACT SHALL LIMIT THE RIGHT OF ANY
29 OLDER PERSON TO FILE A PETITION PURSUANT TO THE ACT OF
30 OCTOBER 7, 1976 (P.L.1090, NO.218), KNOWN AS THE PROTECTION
19870H0090B2295 - 27 -
1 FROM ABUSE ACT.
2 (B) RIGHTS OF ALLEGED ABUSERS.--AN INDIVIDUAL WHO IS ALLEGED
3 IN A PROTECTIVE SERVICES REPORT TO BE A PERPETRATOR OF THE
4 ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT OF AN OLDER ADULT
5 SHALL BE ENTITLED TO THE FOLLOWING IF THE REPORT IS
6 SUBSTANTIATED BY THE AGENCY:
7 (1) SUCH AN INDIVIDUAL SHALL BE NOTIFIED BY THE AGENCY
8 AT THE CONCLUSION OF THE INVESTIGATION OF THE REPORT THAT
9 ALLEGATIONS HAVE BEEN MADE AND SHALL BE GIVEN A BRIEF SUMMARY
10 OF THE ALLEGATIONS.
11 (2) AS PROVIDED UNDER SECTION 9(B)(3), THE ALLEGED
12 PERPETRATOR MAY REQUEST, AND THE AGENCY SHALL PROVIDE,
13 ADDITIONAL INFORMATION CONTAINED IN THE REPORT.
14 (3) AN ALLEGED PERPETRATOR IS ENTITLED TO FILE AN APPEAL
15 WITH THE DEPARTMENT UNDER 1 PA. CODE PART II (RELATING TO
16 GENERAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE) TO
17 CHALLENGE THE AGENCY'S FINDING RESULTING FROM THE
18 INVESTIGATION OF A REPORT MADE UNDER SECTION 6.
19 SECTION 12. FINANCIAL OBLIGATIONS; LIABILITIES AND PAYMENTS.
20 ALL INDIVIDUALS RECEIVING SERVICES AND ALL AGENCIES PROVIDING
21 SERVICES UNDER THIS ACT SHALL COMPLY WITH THE FOLLOWING
22 PROVISIONS REGARDING LIABILITY FOR THE PAYMENT OF SERVICES:
23 (1) FUNDING TO PROVIDE OR MAKE AVAILABLE PROTECTIVE
24 SERVICES UNDER THIS ACT SHALL NOT SUPPLANT ANY PUBLIC AND
25 PRIVATE ENTITLEMENTS OR RESOURCES FOR WHICH PERSONS RECEIVING
26 PROTECTIVE SERVICES UNDER THIS ACT ARE OR MAY BE ELIGIBLE,
27 AND SHALL NOT BE AVAILABLE UNTIL SUCH PERSONS HAVE EXHAUSTED
28 THEIR ELIGIBILITY AND RECEIPT OF BENEFITS UNDER SAID PUBLIC
29 AND PRIVATE ENTITLEMENTS OR RESOURCES.
30 (2) FUNDING AVAILABLE TO LOCAL PROTECTIVE SERVICES
19870H0090B2295 - 28 -
1 AGENCIES UNDER THIS ACT MAY BE USED TO COVER THE COSTS OF
2 ACTIVITIES INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
3 (I) ADMINISTERING PROTECTIVE SERVICES PLANS REQUIRED
4 UNDER SECTION 4(C).
5 (II) RECEIVING AND MAINTAINING RECORDS OF REPORTS OF
6 ABUSE UNDER SECTION 5.
7 (III) CONDUCTING INVESTIGATION OF REPORTED ABUSE
8 UNDER SECTION 6.
9 (IV) CARRYING OUT CLIENT ASSESSMENTS AND DEVELOPING
10 SERVICE PLANS UNDER SECTION 6.
11 (V) PETITIONING THE COURT UNDER SECTIONS 7 AND 10.
12 (VI) PROVIDING EMERGENCY INVOLUNTARY INTERVENTION
13 UNDER SECTION 10.
14 (VII) ARRANGING FOR AVAILABLE SERVICES NEEDED TO
15 CARRY OUT SERVICE PLANS, WHICH MAY INCLUDE, AS
16 APPROPRIATE, ARRANGING FOR SERVICES FOR OTHER HOUSEHOLD
17 MEMBERS IN ORDER TO REDUCE, CORRECT OR ELIMINATE ABUSE,
18 NEGLECT, EXPLOITATION OR ABANDONMENT OF AN OLDER ADULT.
19 (VIII) PURCHASING, ON A TEMPORARY BASIS, SERVICES
20 DETERMINED BY A SERVICE PLAN TO BE NECESSARY TO REDUCE,
21 CORRECT OR ELIMINATE ABUSE, NEGLECT, EXPLOITATION OR
22 ABANDONMENT OF AN OLDER ADULT WHEN SUCH SERVICES ARE NOT
23 AVAILABLE WITHIN THE EXISTING RESOURCES OF THE AGENCY OR
24 OTHER APPROPRIATE PROVIDER. PURCHASE OF SERVICES UNDER
25 THIS PROVISION IS LIMITED TO A 30-DAY PERIOD WHICH MAY BE
26 RENEWED WITH ADEQUATE JUSTIFICATION UNDER REGULATIONS
27 PROMULGATED BY THE DEPARTMENT.
28 (3) THE OBLIGATION OF THE COMMONWEALTH AND THE COUNTIES
29 TO PROVIDE FUNDS TO THE DEPARTMENT OR ANY AGENCY FOR SERVICES
30 PROVIDED PURSUANT TO THIS ACT SHALL BE ENTIRELY DISCHARGED BY
19870H0090B2295 - 29 -
1 THE APPROPRIATIONS MADE TO THE DEPARTMENT OR AN AGENCY.
2 PROVIDED THAT THE AGENCY HAS MET ITS RESPONSIBILITY UNDER THE
3 LAW, NO ACTION AT LAW OR EQUITY SHALL BE INSTITUTED IN ANY
4 COURT TO REQUIRE THE DEPARTMENT, ANY AGENCY, COUNTY OR THE
5 COMMONWEALTH TO PROVIDE BENEFITS OR SERVICES UNDER THIS ACT
6 FOR WHICH APPROPRIATIONS FROM THE COMMONWEALTH OR COUNTIES
7 ARE NOT AVAILABLE.
8 (4) PROTECTIVE SERVICES CLIENTS RECEIVING THE SAME
9 SERVICES PROVIDED TO OTHERS UNDER AN AGENCY SERVICE PLAN
10 SHALL NOT BE REQUIRED TO PAY A FEE FOR ANY SERVICES NOT
11 SUBJECT TO COST SHARING FOR OTHER OLDER ADULTS.
12 SECTION 13. REGULATIONS; ENFORCEMENT.
13 (A) PROMULGATION OF REGULATIONS.--THE DEPARTMENT SHALL
14 PROMULGATE THE RULES AND REGULATIONS TO CARRY OUT THIS ACT AND
15 SHALL BE RESPONSIBLE FOR PRESENTING TO THE GENERAL ASSEMBLY
16 ANNUALLY A REPORT ON THE PROGRAM AND SERVICES PERFORMED.
17 (B) ENFORCEMENT.--THIS ACT SHALL BE ENFORCED ONLY AFTER
18 PROMULGATION OF REGULATIONS BY THE DEPARTMENT, WHICH SHALL OCCUR
19 NO LATER THAN 12 MONTHS FOLLOWING PASSAGE OF THIS ACT, EXCEPT
20 THAT SECTION 4 SHALL APPLY WHEN THE AREA AGENCIES ON AGING
21 CERTIFIES TO THE DEPARTMENT THAT IT IS PREPARED TO FULFILL ITS
22 RESPONSIBILITIES. THE CERTIFICATION SHALL BE MADE WITHIN 90 DAYS
23 FOLLOWING PROMULGATION OF REGULATIONS.
24 SECTION 14. FUNDS FOR PAYMENT OF ADMINISTRATION OF ACT.
25 FUNDS NECESSARY TO ADMINISTER THIS ACT SHALL BE PROVIDED BY
26 ANNUAL APPROPRIATION BY THE GENERAL ASSEMBLY.
27 SECTION 15. REPEALS.
28 ALL OTHER ACTS AND PARTS OF ACTS ARE REPEALED INSOFAR AS THEY
29 ARE INCONSISTENT WITH THIS ACT.
30 SECTION 16. EFFECTIVE DATE.
19870H0090B2295 - 30 -
1 THIS ACT SHALL TAKE EFFECT JULY 1, 1988.
A5L35JLW/19870H0090B2295 - 31 -