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        PRIOR PRINTER'S NOS. 141, 268                  PRINTER'S NO. 519

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 132 Session of 1997


        INTRODUCED BY VANCE, E. Z. TAYLOR, GRUPPO, BLAUM, SAYLOR, TIGUE,
           BUXTON, NAILOR, KREBS, MASLAND, GEORGE, FLICK, ARMSTRONG,
           M. COHEN, NICKOL, COY, B. SMITH, MILLER, JAMES, BELARDI,
           TULLI, MAITLAND, WAUGH, CORNELL, FEESE, OLASZ, READSHAW,
           PESCI, DENT, BATTISTO, BOSCOLA, PETRARCA, DeLUCA, TRAVAGLIO,
           GLADECK, TRELLO, VAN HORNE, ROONEY, BEBKO-JONES,
           D. W. SNYDER, SHANER, MARSICO, ITKIN, MUNDY, MANDERINO,
           MICHLOVIC, CURRY, BUNT, COLAFELLA, L. I. COHEN, LUCYK,
           STEELMAN, RAYMOND, C. WILLIAMS, TRICH, STEVENSON, EGOLF,
           ROBERTS, BAKER, HABAY, ORIE, BENNINGHOFF, EACHUS AND BROWN,
           JANUARY 29, 1997

        AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
           FEBRUARY 11, 1997

                                     AN ACT

     1  Amending the act of November 6, 1987 (P.L.381, No.79), entitled
     2     "An act relating to the protection of the abused, neglected,
     3     exploited or abandoned elderly; establishing a uniform
     4     Statewide reporting and investigative system for suspected
     5     abuse, neglect, exploitation or abandonment of the elderly;
     6     providing protective services; providing for funding; making
     7     repeals," adding certain definitions; further providing for
     8     reporting, for investigations and for reporting suspected
     9     abuse by employees.

    10     The General Assembly of the Commonwealth of Pennsylvania
    11  hereby enacts as follows:
    12     Section 1.  Section 103 of the act of November 6, 1987
    13  (P.L.381, No.79), known as the Older Adults Protective Services
    14  Act, is amended by adding definitions to read:
    15  Section 103.  Definitions.
    16     The following words and phrases when used in this act shall


     1  have the meanings given to them in this section unless the
     2  context clearly indicates otherwise:
     3     * * *
     4     "Serious bodily injury."  Injury which creates a substantial
     5  risk of death or which causes serious permanent disfigurement or
     6  protracted loss or impairment of the function of a body member
     7  or organ.
     8     "SERIOUS PHYSICAL INJURY."  AN INJURY THAT:                    <--
     9         (1)  CAUSES A PERSON SEVERE PAIN; OR
    10         (2)  SIGNIFICANTLY IMPAIRS A PERSON'S PHYSICAL
    11     FUNCTIONING, EITHER TEMPORARILY OR PERMANENTLY.
    12     * * *
    13     "Sexual abuse."  Intentionally, knowingly or recklessly
    14  causing or attempting to cause rape, involuntary deviate sexual
    15  intercourse, sexual assault, statutory sexual assault,
    16  aggravated indecent assault, indecent assault or incest.
    17     Section 2.  Sections 302(a), 303(a), 304(e) and 503 of the
    18  act, amended or added December 18, 1996 (P.L.1125, No.169), are
    19  amended to read:
    20  Section 302.  Reporting; protection from retaliation; immunity.
    21     (a)  Reporting.--Any person having reasonable cause to
    22  believe that an older adult is in need of protective services
    23  may report such information to the agency which is the local
    24  provider of protective services. Where applicable, reports shall
    25  comply with the provisions of chapter 7.
    26     * * *
    27  Section 303.  Investigations of reports of need for protective
    28                 services.
    29     (a)  Investigation.--It shall be the agency's responsibility
    30  to provide for an investigation of each report made under
    19970H0132B0519                  - 2 -

     1  section 302. The investigation shall be initiated within 72
     2  hours after the receipt of the report and shall be carried out
     3  under regulations issued by the department. These regulations
     4  shall provide for the methods of conducting investigations under
     5  this section and shall assure that steps are taken to avoid any
     6  conflict of interest between the investigator and service
     7  delivery functions. Reports and investigations under this
     8  section shall comply with chapter 7, where applicable.
     9     * * *
    10  Section 304.  Provision of services; access to records and
    11                 persons.
    12     * * *
    13     (e)  Access to persons.--The agency shall have access to
    14  older persons who have been reported to be in need of protective
    15  services in order to:
    16         (1)  Investigate reports under section 303 and chapter 7.
    17         (2)  Assess client need and develop a service plan for
    18     addressing needs determined.
    19         (3)  Provide for the delivery of services by the agency
    20     or other service provider arranged for under the service plan
    21     developed by the agency.
    22     * * *
    23  Section 503.  Grounds for denying employment.
    24     (a)  General rule.--In no case shall a facility hire an
    25  applicant or retain an employee required to submit information
    26  pursuant to section 502(a) if the applicant's or employee's
    27  criminal history record information indicates the applicant or
    28  employee has been convicted [under one or more provisions of 18   <--
    29  Pa.C.S. (relating to crimes and offenses):] OF ANY OF THE         <--
    30  FOLLOWING OFFENSES:
    19970H0132B0519                  - 3 -

     1         [Section 2502(a) or (b) (relating to murder).]             <--
     2         Chapter 25 (relating to criminal homicide).
     3         Section 3121 (relating to rape).
     4         Section 3122.1 (relating to statutory sexual assault).
     5         Section 3123 (relating to involuntary deviate sexual
     6     intercourse).
     7         Section 3124.1 (relating to sexual assault).
     8         Section 3125 (relating to aggravated indecent assault).
     9         Section 3126 (relating to indecent assault).
    10         Section 4302 (relating to incest).
    11         Section 6312 (relating to sexual abuse of children).
    12     (b)  Other offenses.--In no case may a facility hire an
    13  applicant or retain an employee required to submit information
    14  pursuant to section 502(a) if the applicant's or employee's
    15  criminal history record information indicates the applicant or
    16  employee has been convicted within ten years immediately
    17  preceding the date of the report of one or more of the following
    18  offenses:
    19         (1)  An offense designated as a felony under the act of
    20     April 14, 1972 (P.L.233, No.64), known as The Controlled
    21     Substance, Drug, Device and Cosmetic Act.
    22         (2)  An offense under one or more of the following
    23     provisions of 18 Pa.C.S.:
    24             [Chapter 25 (relating to criminal homicide) except     <--
    25         for section 2502(a) and (b).]                              <--
    26             Section 2702 (relating to aggravated assault).
    27             Section 2901 (relating to kidnapping).
    28             Section 2902 (relating to unlawful restraint).
    29             Section 3301 (relating to arson and related
    30         offenses).
    19970H0132B0519                  - 4 -

     1             Section 3502 (relating to burglary).
     2             Section 3701 (relating to robbery).
     3             A felony offense under Chapter 39 (relating to theft
     4         and related offenses), or two or more misdemeanors under
     5         Chapter 39.
     6             Section 4101 (relating to forgery).
     7             Section 4304 (relating to endangering welfare of
     8         children).
     9             Section 4305 (relating to dealing in infant
    10         children).
    11             Section 4953 (relating to retaliation against witness
    12         or victim).
    13             A felony offense under section 5902(b) (relating to
    14         prostitution and related offenses).
    15             Section 5903(c) or (d) (relating to obscene and other
    16         sexual materials and performances).
    17             Section 6301 (relating to corruption of minors).]      <--
    18         (1)  AN OFFENSE DESIGNATED AS A FELONY UNDER THE ACT OF    <--
    19     APRIL 14, 1972 (P.L.233, NO.64), KNOWN AS THE CONTROLLED
    20     SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT.
    21         (2)  AN OFFENSE UNDER ONE OR MORE OF THE FOLLOWING
    22     PROVISIONS OF 18 PA.C.S. (RELATING TO CRIMES AND OFFENSES):
    23             CHAPTER 25 (RELATING TO CRIMINAL HOMICIDE).
    24             SECTION 2702 (RELATING TO AGGRAVATED ASSAULT).
    25             SECTION 2901 (RELATING TO KIDNAPPING).
    26             SECTION 2902 (RELATING TO UNLAWFUL RESTRAINT).
    27             SECTION 3121 (RELATING TO RAPE).
    28             SECTION 3122.1 (RELATING TO STATUTORY SEXUAL
    29         ASSAULT).
    30             SECTION 3123 (RELATING TO INVOLUNTARY DEVIATE SEXUAL
    19970H0132B0519                  - 5 -

     1         INTERCOURSE).
     2             SECTION 3125 (RELATING TO AGGRAVATED INDECENT
     3         ASSAULT).
     4             SECTION 3126 (RELATING TO INDECENT ASSAULT).
     5             SECTION 3127 (RELATING TO INDECENT EXPOSURE).
     6             SECTION 3301 (RELATING TO ARSON AND RELATED
     7         OFFENSES).
     8             SECTION 3502 (RELATING TO BURGLARY).
     9             SECTION 3701 (RELATING TO ROBBERY).
    10             A FELONY OFFENSE UNDER CHAPTER 39 (RELATING TO THEFT
    11         AND RELATED OFFENSES) OR TWO OR MORE MISDEMEANORS UNDER
    12         CHAPTER 39.
    13             SECTION 4101 (RELATING TO FORGERY).
    14             SECTION 4114 (RELATING TO SECURING EXECUTION OF
    15         DOCUMENTS BY DECEPTION).
    16             SECTION 4303 (RELATING TO CONCEALING DEATH OF CHILD).
    17             SECTION 4304 (RELATING TO ENDANGERING WELFARE OF
    18         CHILDREN).
    19             SECTION 4305 (RELATING TO DEALING IN INFANT
    20         CHILDREN).
    21             SECTION 4952 (RELATING TO INTIMIDATION OF WITNESSES
    22         OR VICTIMS).
    23             SECTION 4953 (RELATING TO RETALIATION AGAINST WITNESS
    24         OR VICTIM).
    25             A FELONY OFFENSE UNDER SECTION 5902(B) (RELATING TO
    26         PROSTITUTION AND RELATED OFFENSES).
    27             SECTION 5903(C) OR (D) (RELATING TO OBSCENE AND OTHER
    28         SEXUAL MATERIALS AND PERFORMANCES).
    29             SECTION 6301 (RELATING TO CORRUPTION OF MINORS).
    30             SECTION 6312 (RELATING TO SEXUAL ABUSE OF CHILDREN).
    19970H0132B0519                  - 6 -

     1         (3)  A Federal or out-of-State offense similar in nature
     2     to those crimes listed in paragraphs (1) and (2).
     3     (c)  Immunity.--An administrator or a facility shall not be
     4  held civilly liable for any action directly related to good
     5  faith compliance with this section.
     6     Section 3.  The act is amended by adding a chapter to read:
     7                             CHAPTER 7
     8               REPORTING SUSPECTED ABUSE BY EMPLOYEES
     9  Section 701.  Reporting by employees.
    10     (a)  Mandatory reporting to agency.--
    11         (1)  An employee or an administrator who has reasonable
    12     cause to suspect that a recipient is a victim of abuse shall
    13     immediately make an oral report to the agency. If applicable,
    14     the agency shall advise the employee or administrator of
    15     additional reporting requirements that may pertain under
    16     subsection (b). An employee shall notify the administrator
    17     immediately following the report to the agency.
    18         (2)  Within 48 hours of making the oral report, the
    19     employee or administrator shall make a written report to the
    20     agency. The agency shall notify the administrator that a
    21     report of abuse has been made with the agency.
    22         (3)  The employee may request the administrator to make,
    23     or to assist the employee to make, the oral and written
    24     reports required by this subsection.
    25     (b)  Mandatory reports to law enforcement officials.--
    26         (1)  An employee or an administrator who has reasonable
    27     cause to suspect that a recipient is the victim of sexual
    28     abuse or serious bodily injury or that a death is suspicious
    29     shall, in addition to contacting the agency, immediately
    30     contact law enforcement officials to make an oral report. An
    19970H0132B0519                  - 7 -

     1     employee shall notify the administrator immediately following
     2     the report to law enforcement officials.
     3         (2)  Within 48 hours of making the oral report, the
     4     employee and an administrator shall make a written report to
     5     appropriate law enforcement officials.
     6         (3)  The law enforcement officials shall notify the
     7     administrator that a report has been made with the law
     8     enforcement officials.
     9         (4)  The employee may request the administrator to make,
    10     or to assist the employee to make, the oral and written
    11     reports to law enforcement required by this subsection.
    12     (c)  Contents of report.--A written report under this section
    13  shall be in a manner and on forms prescribed by the department.
    14  The report shall include, at a minimum, the following
    15  information:
    16         (1)  Name, age and address of the recipient.
    17         (2)  Name and address of the recipient's guardian or next
    18     of kin.
    19         (3)  Name and address of the facility.
    20         (4)  Nature of the alleged offense.
    21         (5)  Any specific comments or observations that are
    22     directly related to the alleged incident and the individual
    23     involved.
    24  Section 702.  Reports to department and coroner.
    25     (a)  Department.--
    26         (1)  Within 48 hours of receipt of a written report under
    27     section 701(a) involving sexual abuse, serious bodily injury
    28     or suspicious death, the agency shall transmit a written
    29     report to the department. Supplemental reports shall be
    30     transmitted as they are obtained by the agency.
    19970H0132B0519                  - 8 -

     1         (2)  A report under this subsection shall be made in a
     2     manner and on forms prescribed by the department. The report
     3     shall include, at a minimum, the following information:
     4             (i)  The name and address of the alleged victim.
     5             (ii)  Where the suspected abuse occurred.
     6             (iii)  The age and sex of the alleged perpetrator and
     7         victim.
     8             (iv)  The nature and extent of the suspected abuse,
     9         including any evidence of prior abuse.
    10             (v)  The name and relationship of the individual
    11         responsible for causing the alleged abuse to the victim,
    12         if known, and any evidence of prior abuse by that
    13         individual.
    14             (vi)  The source of the report.
    15             (vii)  The individual making the report and where
    16         that individual can be reached.
    17             (viii)  The actions taken by the reporting source,
    18         including taking of photographs and x-rays, removal of
    19         recipient and notification under subsection (b).
    20             (ix)  Any other information which the department may
    21         require by regulation.
    22     (b)  Coroner.--For a report under section 701(a) which
    23  concerns the death of a recipient, if there is reasonable cause
    24  to suspect that the recipient died as a result of abuse, the
    25  agency shall give the oral report and forward a copy of the
    26  written report to the appropriate coroner within 24 hours.
    27  Section 703.  Investigation.
    28     (a)  Law enforcement officials.--Upon receipt of a report
    29  under section 701(b), law enforcement officials shall conduct an
    30  investigation to determine what criminal charges, if any, will
    19970H0132B0519                  - 9 -

     1  be filed.
     2     (b)  Notification.--If law enforcement officials have
     3  reasonable cause to suspect that a recipient has suffered sexual
     4  abuse, serious bodily injury or a suspicious death, law
     5  enforcement officials shall notify the agency.
     6     (c)  Cooperation.--To the fullest extent possible, law
     7  enforcement officials, the facility and the agency shall
     8  coordinate their respective investigations. Law enforcement
     9  officials, the facility and the agency shall advise each other
    10  and provide any applicable additional information on an ongoing
    11  basis.
    12     (d)  Further notification.--Law enforcement officials shall
    13  notify the agency and the facility of a decision regarding
    14  criminal charges. The agency and the department shall keep a
    15  record of any decision regarding criminal charges.
    16     (e)  Compliance with Chapter 3.--In addition to the
    17  provisions of this section, the agency shall comply with Chapter
    18  3.
    19  Section 704.  Restrictions on employees.
    20     (a)  Plan of supervision.--Upon notification that an employee
    21  is alleged to have committed abuse, the facility shall
    22  immediately implement a plan of supervision or, where
    23  appropriate, suspension of the employee, subject to approval by
    24  the agency and by the Commonwealth agency with regulatory
    25  authority over the facility. A plan of supervision for a home
    26  health care agency must include periodic random direct
    27  inspections of care-dependent individuals by a facility employee
    28  who has been continuously employed by that facility for a period
    29  of at least one year.
    30     (b)  Prohibition.--Upon the filing of criminal charges
    19970H0132B0519                 - 10 -

     1  against an employee, the Commonwealth agency which licenses the
     2  facility shall order the facility to immediately prohibit that
     3  employee from having access to recipients at the facility. If
     4  that employee is a director, operator, administrator or
     5  supervisor, that employee shall be subject to restrictions
     6  deemed appropriate by the Commonwealth agency which licenses the
     7  facility to assure the safety of recipients of the facility.
     8  Section 705.  Confidentiality of and access to confidential
     9                 reports.
    10     (a)  General rule.--Except as provided in subsection (b), a
    11  report under this chapter shall be confidential.
    12     (b)  Exceptions.--A report under this chapter shall be made
    13  available to all of the following:
    14         (1)  An employee of the department or of an agency in the
    15     course of official duties in connection with responsibilities
    16     under this chapter.
    17         (2)  An employee of the Department of Health or the
    18     Department of Public Welfare in the course of official
    19     duties.
    20         (3)  An employee of an agency of another state which
    21     performs protective services similar to those under this
    22     chapter.
    23         (4)  A practitioner of the healing arts who is examining
    24     or treating a recipient and who suspects that the recipient
    25     is in need of protection under this chapter.
    26         (5)  The director, or an individual specifically
    27     designated in writing by the director, of any hospital or
    28     other medical institution where a victim is being treated if
    29     the director or designee suspects that the recipient is in
    30     need of protection under this chapter.
    19970H0132B0519                 - 11 -

     1         (6)  A guardian of the recipient.
     2         (7)  A court of competent jurisdiction pursuant to a
     3     court order.
     4         (8)  The Attorney General.
     5         (9)  Law enforcement officials of any jurisdiction as
     6     long as the information is relevant in the course of
     7     investigating cases of abuse.
     8         (10)  A mandated reporter under Chapter 3 who made a
     9     report of suspected abuse. Information released under this
    10     paragraph shall be limited to the following:
    11             (i)  The final status of the report following the
    12         investigation.
    13             (ii)  Services provided or to be provided by the
    14         agency.
    15     (c)  Excision of certain names.--The name of the person
    16  suspected of committing the abuse shall be excised from a report
    17  made available under subsection (b)(4), (5) and (10).
    18     (d)  Release of information to alleged perpetrator and
    19  victim.--Upon written request, an alleged perpetrator and victim
    20  may receive a copy of all information, except that prohibited
    21  from being disclosed by subsection (e).
    22     (e)  Protecting identity of person making report.--Except for
    23  reports to law enforcement officials, the release of data that
    24  would identify the individual who made a report under this
    25  chapter or an individual who cooperated in a subsequent
    26  investigation is prohibited. Law enforcement officials shall
    27  treat all reporting sources as confidential information.
    28  Section 706.  Penalties.
    29     (a)  Administrative.--
    30         (1)  An administrator who intentionally or willfully
    19970H0132B0519                 - 12 -

     1     fails to comply or obstructs compliance with the provisions
     2     of this chapter or who intimidates or commits a retaliatory
     3     act against an employee who complies in good faith with the
     4     provisions of this chapter commits a violation of this
     5     chapter and shall be subject to an administrative penalty
     6     under paragraph (3).
     7         (2)  A facility owner that intentionally or willfully
     8     fails to comply with or obstructs compliance with this
     9     chapter or that intimidates or commits a retaliatory act
    10     against an employee who complies in good faith with this
    11     chapter commits a violation of this chapter and shall be
    12     subject to an administrative penalty under paragraph (3).
    13         (3)  The Commonwealth agency or Commonwealth agencies
    14     which regulate the facility have jurisdiction to determine
    15     violations of this chapter and may issue an order assessing a
    16     civil penalty of not more than $2,500. An order under this
    17     paragraph is subject to 2 Pa.C.S. Ch. 5, Subch. A (relating
    18     to practice and procedure of Commonwealth agencies) and Ch.
    19     7, Subch. A (relating to judicial review of Commonwealth
    20     agency action).
    21     (b)  Criminal.--
    22         (1)  An administrator who intentionally or willfully
    23     fails to comply, or obstructs compliance, with this chapter
    24     commits a misdemeanor of the third degree and shall, upon
    25     conviction, be sentenced to pay a fine of $2,500 or to
    26     imprisonment for not more than one year, or both.
    27         (2)  A facility owner that intentionally or willfully
    28     fails to comply with, or obstructs compliance with, this
    29     chapter, commits a misdemeanor of the third degree and shall,
    30     upon conviction, be sentenced to pay a fine of $2,500 or to
    19970H0132B0519                 - 13 -

     1     imprisonment for not more than one year, or both.
     2     (c)  Penalties for failure to report.--A person required
     3  under this chapter to report a case of suspected abuse who
     4  willfully fails to do so commits a summary offense for the first
     5  violation and a misdemeanor of the third degree for a second or
     6  subsequent violation.
     7  SECTION 707.  REGULATIONS.                                        <--
     8     THE DEPARTMENT OF AGING, THE DEPARTMENT OF HEALTH AND THE
     9  DEPARTMENT OF PUBLIC WELFARE SHALL PROMULGATE THE REGULATIONS
    10  NECESSARY TO CARRY OUT THIS CHAPTER.
    11     Section 4.  This act shall take effect in 180 days.













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