PRIOR PRINTER'S NOS. 141, 268 PRINTER'S NO. 519
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. A10L35DGS/19970H0132B0519 - 14 -