PRINTER'S NO. 425
No. 361 Session of 2007
INTRODUCED BY BAKER, HENNESSEY, CLYMER, KENNEY, BELFANTI, BOYD,
BUXTON, CALTAGIRONE, CAPPELLI, COHEN, COX, CREIGHTON,
DiGIROLAMO, FABRIZIO, FLECK, FRANKEL, FREEMAN, GEIST,
GINGRICH, GODSHALL, GOODMAN, GRELL, GRUCELA, HERSHEY, HESS,
HICKERNELL, HUTCHINSON, JAMES, JOSEPHS, KAUFFMAN, MACKERETH,
MANDERINO, McILHATTAN, MENSCH, R. MILLER, MYERS, NAILOR,
PETRARCA, RAPP, REED, REICHLEY, ROSS, RUBLEY, SAINATO,
SAMUELSON, SAYLOR, SCAVELLO, SCHRODER, SOLOBAY, SONNEY,
STERN, STURLA, TRUE, WATSON, WILLIAMS AND YOUNGBLOOD,
FEBRUARY 13, 2007
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES,
FEBRUARY 13, 2007
AN ACT
1 Providing for protection of abused, neglected, exploited or
2 abandoned adults; establishing a uniform Statewide reporting
3 and investigative system for suspected abuse, neglect,
4 exploitation or abandonment of adults; providing for
5 protective services and for funding; and prescribing
6 penalties.
7 TABLE OF CONTENTS
8 Chapter 1. Preliminary Provisions
9 Section 101. Short title.
10 Section 102. Legislative policy.
11 Section 103. Definitions.
12 Chapter 3. Administration
13 Section 301. Duties of department and agencies.
14 Section 302. Reporting.
15 Section 303. Investigations of reports of need for protective
1 services.
2 Section 304. Provision of services.
3 Section 305. Immunity from civil and criminal liability.
4 Section 306. Confidentiality of records.
5 Section 307. Involuntary intervention by emergency court
6 order.
7 Section 308. Rights of protective services clients.
8 Section 309. Financial obligations, liabilities and payments.
9 Section 310. Regulations.
10 Section 311. Funds for payment of administration of chapter.
11 Chapter 5. Reporting Suspected Abuse by Employees
12 Section 501. Reporting by employees.
13 Section 502. Reports to department and coroner or medical
14 examiner.
15 Section 503. Investigation.
16 Section 504. Restrictions on employees.
17 Section 505. Confidentiality of and access to confidential
18 reports.
19 Section 506. Penalties.
20 Section 507. Immunity.
21 Section 508. Regulations.
22 Chapter 7. Miscellaneous Provisions
23 Section 701. Repeals.
24 Section 702. Effective date.
25 The General Assembly of the Commonwealth of Pennsylvania
26 hereby enacts as follows:
27 CHAPTER 1
28 PRELIMINARY PROVISIONS
29 Section 101. Short title.
30 This act shall be known and may be cited as the Adult
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1 Protective Services Act.
2 Section 102. Legislative policy.
3 It is declared the policy of this Commonwealth that:
4 (1) Adults who lack the capacity to protect themselves
5 and are at imminent risk of abuse, neglect, exploitation or
6 abandonment must have access to services necessary to protect
7 their health, safety and welfare.
8 (2) Adults have the right to make choices, subject to
9 the laws and regulations of the Commonwealth, regarding their
10 lifestyles, relationships, bodies and health, even when those
11 choices present risks to themselves or their property.
12 (3) Adults have the right to refuse some or all
13 protective services.
14 (4) Information about protective services should be
15 provided in a safe place and in a safe, understandable and
16 responsive manner.
17 (5) The Commonwealth must provide for the detection and
18 reduction, correction or elimination of abuse, neglect,
19 exploitation and abandonment and establish a program of
20 protective services for adults in need of them.
21 (6) Adults have the right to receive services in the
22 most integrated settings and in the manner least restrictive
23 of individual liberties.
24 Section 103. Definitions.
25 The following words and phrases when used in this act shall
26 have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 "Abandonment." The desertion of an adult by a caregiver.
29 "Abuse." The occurrence of one or more of the following
30 acts:
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1 (1) The infliction of injury, unreasonable confinement,
2 intimidation or punishment with resulting physical harm, pain
3 or mental anguish.
4 (2) The willful deprivation by a caregiver of goods or
5 services which are necessary to maintain physical or mental
6 health.
7 (3) Sexual harassment, rape or "abuse" as defined in 23
8 Pa.C.S. § 6102 (relating to definitions).
9 The term does not include environmental factors which are beyond
10 the control of an adult or caregiver, including, but not limited
11 to, inadequate housing, furnishings, income, clothing or medical
12 care.
13 "Administrator." The person responsible for the
14 administration of a facility. The term includes a person
15 responsible for employment decisions or an independent
16 contractor.
17 "Adult." A person within the jurisdiction of this
18 Commonwealth who is between 18 and 59 years of age.
19 "Adult in need of protective services." An adult who needs
20 the assistance of another person to obtain protective services
21 in order to prevent imminent risk to person or property as a
22 result of one or more functional limitations.
23 "Adult with a disability." An individual with a physical or
24 mental impairment that substantially limits one or more of the
25 major life activities of the individual.
26 "Agency." A local contracted provider of protective
27 services.
28 "Caregiver." An individual or institution that has assumed
29 the responsibility for the provision of care needed to maintain
30 the physical or mental health of an adult. This responsibility
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1 may arise voluntarily, by contract, by receipt of payment for
2 care, as a result of family relationship or by order of a court
3 of competent jurisdiction. It is not the intent of this act to
4 impose responsibility on any individual if the responsibility
5 would not otherwise exist in law.
6 "Client assessment." Social, physical and psychological
7 findings along with a description of the person's current
8 resources and needs.
9 "Court." A court of common pleas or a district magistrate
10 court, where applicable.
11 "Department." The Department of Aging of the Commonwealth.
12 "Employee." An individual who is employed by a facility. The
13 term includes:
14 (1) A contract employee who has direct contact with
15 residents or unsupervised access to their personal living
16 quarters.
17 (2) A person who is employed or who enters into a
18 contractual relationship to provide care to an adult for
19 monetary consideration in the adult's place of residence.
20 "Exploitation." An act or course of conduct by a caregiver
21 or other person against an adult or an adult's resources,
22 without the informed consent of the adult or with consent
23 obtained through misrepresentation, coercion or threats of
24 force, that results in monetary, personal or other benefit, gain
25 or profit for the perpetrator or monetary or personal loss to
26 the adult.
27 "Facility." The term includes, but is not limited to:
28 (1) A "domiciliary care" home as defined in section
29 2202-A of the act of April 9, 1929 (P.L.177, No.175), known
30 as The Administrative Code of 1929.
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1 (2) A home health care agency.
2 (3) An intermediate care facility for people with mental
3 retardation.
4 (4) A long-term care nursing facility as defined in
5 section 802.1 of the act of July 19, 1979 (P.L.130, No.48),
6 known as the Health Care Facilities Act.
7 (5) A personal care home as defined in section 1001 of
8 the act of June 13, 1967 (P.L.31, No.21), known as the Public
9 Welfare Code.
10 (6) An organization.
11 (7) A residential treatment facility.
12 "Home health care agency." Any of the following:
13 (1) A home health care organization or agency licensed
14 by the Department of Health.
15 (2) A public or private agency or organization, or part
16 of an agency or organization, that provides care to an adult
17 in the adult's place of residence.
18 "Intimidation." An act or omission by a person or entity
19 toward another person which is intended to or with knowledge
20 that the act or omission will obstruct, impede, impair, prevent
21 or interfere with the administration of this act or any law
22 intended to protect adults from mistreatment.
23 "Law enforcement official." Any of the following:
24 (1) A police officer of a municipality.
25 (2) A district attorney.
26 (3) The Pennsylvania State Police.
27 "Most integrated setting." A setting that enables
28 individuals with disabilities to interact with individuals who
29 do not have disabilities to the fullest extent possible.
30 "Neglect." The failure to provide for oneself or the failure
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1 of a caregiver to provide goods or services essential to avoid a
2 clear and serious threat to the physical or mental health of an
3 adult. The term does not include environmental factors that are
4 beyond the control of an adult or the caregiver, including, but
5 not limited to, inadequate housing, furnishings, income,
6 clothing or medical care.
7 "Organization." An entity or group of people that uses
8 public funds and is paid, in part, to provide care and support
9 to persons with disabilities in a licensed or unlicensed
10 setting.
11 "Protective services." Those activities, resources and
12 supports provided to adults under this act to detect, prevent,
13 reduce or eliminate abuse, neglect, exploitation and
14 abandonment.
15 "Protective setting." A setting chosen by an agency where
16 services can be provided in the least restrictive environment to
17 protect the physical and mental well-being of an adult.
18 "Recipient." An individual who receives care, services or
19 treatment in or from a facility.
20 "Secretary." The Secretary of Aging of the Commonwealth.
21 "Serious bodily injury." Injury that:
22 (1) creates a substantial risk of death; or
23 (2) causes serious permanent disfigurement or protracted
24 loss or impairment of the function of a body member or organ.
25 "Serious mental harm." Mental suffering of great intensity
26 that creates a substantial risk of deterioration in routine
27 functioning.
28 "Serious physical injury." An injury that:
29 (1) causes a person severe pain; or
30 (2) significantly impairs a person's physical
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1 functioning, either temporarily or permanently.
2 "Service plan." A written plan that includes all of the
3 following:
4 (1) Is cooperatively developed by an agency staff, an
5 adult in need of protective services or the adult's appointed
6 guardian, if any, and other family members and advocates when
7 appropriate.
8 (2) Is based on multidisciplinary, comprehensive written
9 assessments conducted by professionals who have met with the
10 adult in need of protective services and are familiar with
11 their situation.
12 (3) Provides for services in the most integrated setting
13 and in a manner least restrictive to individual liberties.
14 (4) Describes identified needs, goals to be achieved and
15 specific services to support goal attainment, with regular
16 follow-up and predetermined reassessment of client progress.
17 (5) Is updated as needed.
18 "Sexual abuse." Intentionally, knowingly or recklessly
19 causing or attempting to cause rape, involuntary deviate sexual
20 intercourse, sexual assault, statutory sexual assault,
21 aggravated indecent assault or incest, as defined by 18 Pa.C.S.
22 (relating to crimes and offenses).
23 CHAPTER 3
24 ADMINISTRATION
25 Section 301. Duties of department and agencies.
26 (a) General rule.--
27 (1) The department shall administer the protective
28 services program in a manner designed to ensure that the
29 right of adults to make choices is protected and services are
30 provided in a manner that is least restrictive of individual
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1 liberties.
2 (2) The department shall, in consultation with the
3 Department of Public Welfare and other appropriate State
4 agencies, define the geographic areas to be served by
5 agencies and shall select those agencies based upon a
6 competitive bidding process. Successful bidders must:
7 (i) Demonstrate knowledge regarding adults with
8 disabilities.
9 (ii) Be separate from agencies providing direct
10 services to adults or county mental health and mental
11 retardation programs.
12 (iii) Agree to practice principles of individual
13 choice, self-determination and least restrictive
14 alternatives.
15 (3) The department shall conduct an ongoing campaign
16 designed to inform and educate adults, families, caregivers,
17 professionals and the general public about the need for and
18 availability of protective services under this chapter. The
19 campaign shall require facilities to post notice of the
20 availability of protective services and to provide the notice
21 to recipients and their families. The department shall
22 consult with other departments of the Commonwealth on the
23 design and implementation of the ongoing public awareness
24 campaign. The department shall also consider the concerns of
25 agencies and entities identified by them under subsection
26 (b).
27 (4) The department shall establish, by regulation,
28 minimum standards of training and experience that protective
29 services agencies funded by the department shall follow in
30 the selection and assignment of staff for the provision of
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1 protective services. The standards shall require local
2 protective services providers to collaborate with adults with
3 disabilities, their families and advocates, and the standards
4 shall be included in developing and delivering training.
5 (b) Agency duties.--Each agency shall submit a proposal that
6 includes a protective services plan. The plan shall:
7 (1) Describe the implementation of this chapter,
8 including, but not limited to, the organization, staffing,
9 mode of operations and financing of protective services, as
10 well as the provisions made for purchase of services,
11 interagency relations, interagency agreements, service
12 referral mechanisms and locus of responsibility for cases
13 with multiservice agency needs.
14 (2) Describe the methods that the agency, its designees
15 and service providers will use to assure the privacy of all
16 adults receiving services and the confidentiality of all
17 records.
18 (3) List all entities, whether public or private, that
19 have been identified by the agency as having substantial
20 contact with potential victims or perpetrators of abuse,
21 neglect, exploitation and abandonment.
22 (4) Ensure that the entities have information regarding
23 the unique aspects of various disabilities.
24 The agency shall submit the list to the department for purposes
25 of the public information campaign under subsection (a).
26 Section 302. Reporting.
27 (a) General rule.--A person having reasonable cause to
28 believe that an adult is in need of protective services may
29 report such information to the agency that is the local provider
30 of protective services. Where applicable, reports shall comply
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1 with the provisions of Chapter 5.
2 (b) Receiving reports.--The agency shall be capable of
3 receiving reports of adults in need of protective services 24
4 hours a day, seven days a week, including holidays. This
5 capability may include the use of a local emergency response
6 system or a crisis intervention agency, provided that access can
7 be made to a protective services caseworker in appropriate
8 emergency situations as set forth in regulations promulgated by
9 the department. All reports received orally under this section
10 shall be reduced to writing immediately by the person who
11 receives the report.
12 (c) Screening.--A person who receives a report shall screen
13 the report during and immediately following receipt of the
14 report to assign it to one of the following referral categories:
15 (1) Priority. A report placed in this category shall
16 require immediate attention because specific details in the
17 report indicate the possibility that the adult reported to
18 need protective services is at imminent risk of death or
19 serious physical or mental harm. The person receiving an
20 emergency report shall immediately contact a protective
21 services caseworker and provide the caseworker with the
22 information contained in the report.
23 (2) Nonpriority. A report shall be placed in this
24 category when it does not appropriately fall within the
25 priority category and, therefore, does not require immediate
26 attention by the agency. A report in this category shall be
27 referred to a protective services caseworker of an agency
28 within the normal business hours of the agency's current or
29 next day of business under the agency's established
30 procedures for referring these reports.
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1 (3) Another planning and service area. A report in which
2 the adult who is the subject of the report does not reside in
3 the planning and service area of the agency or, at that time,
4 is not in the planning and service area shall be placed in
5 this category. The report shall be referred to the agency
6 that has the designated responsibility for protective
7 services in the planning and service area in which the adult
8 reported to be in need of protective services is located at
9 the time of the report. A report in this category shall also
10 meet the criteria for placement in one of the other
11 categories in this subsection. The provisions for referral
12 for the other category shall apply to a referral to another
13 planning and service area.
14 (4) No need for protective services. A report shall be
15 placed in this category when the person reported to be in
16 need of protective services meets at least one of the
17 following criteria:
18 (i) has the capacity to perform or obtain, without
19 help, services necessary to maintain physical or mental
20 health;
21 (ii) has a responsible caregiver at the time of the
22 report who is not the alleged perpetrator; or
23 (iii) is not at imminent risk or danger to his
24 person or property.
25 A report in this category shall be referred to a protective
26 services caseworker of the agency within the normal business
27 hours of the agency's current or next day of business. The
28 protective services caseworker shall review the details of
29 the report and take all steps necessary to confirm or reject
30 the categorization of no need for protective services. If the
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1 caseworker confirms the screening categorization, appropriate
2 referrals shall be made to other agencies, upon request, and
3 the protective services case shall be closed. If the
4 caseworker rejects the categorization, the report shall be
5 placed in the appropriate category and shall be handled
6 accordingly. A report may not be placed in this category if
7 the adult is temporarily relocated to a safe environment and
8 will return to the original abusive situation or to a new
9 location which has not been determined to be safe.
10 (d) Retaliatory action.--
11 (1) Any person who makes a report or cooperates with the
12 agency, including providing testimony in any administrative
13 or judicial proceeding, and any victim shall not be subject
14 to any discriminatory, retaliatory or disciplinary action by
15 an employer or by any other person or entity.
16 (2) Any person who violates this subsection is subject
17 to a civil action by the reporter or the victim, in which
18 action the reporter or victim shall recover treble
19 compensatory damages, compensatory and punitive damages or
20 $5,000, whichever is greater.
21 (e) Intimidation.--
22 (1) A person, including a victim, with knowledge
23 sufficient to justify making a report or cooperating with an
24 agency, including possibly providing testimony in an
25 administrative or judicial proceeding, shall not be subject
26 to any intimidation by an employer or by any other person or
27 entity.
28 (2) A person who violates this subsection is subject to
29 civil action by the reporter or the victim, in which action
30 the reporter or victim shall recover treble compensatory
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1 damages, compensatory and punitive damages or $5,000,
2 whichever is greater.
3 (f) Immunity.--
4 (1) A person who participates in the making of a report
5 or who provides testimony in an administrative or judicial
6 proceeding arising out of a report shall be immune from any
7 civil or criminal liability, subject to paragraph (2), on
8 account of the report or testimony, unless the person acted
9 in bad faith or with malicious purpose.
10 (2) The immunity established under paragraph (1) shall
11 not extend to liability for an act of abuse, neglect,
12 exploitation or abandonment even if such act is the subject
13 of the report or testimony.
14 Section 303. Investigations of reports of need for protective
15 services.
16 (a) Investigation.--
17 (1) An agency shall investigate each report made under
18 section 302. The investigation shall be initiated immediately
19 for an emergency intake and within 24 hours for a priority
20 intake.
21 (2) An emergency and priority intake shall be conducted
22 face to face, except when the adult is hospitalized or
23 emergency services are provided through another method.
24 (3) The investigation shall be initiated within 72 hours
25 for a nonpriority intake, which may be conducted by telephone
26 contact.
27 (4) The department shall adopt regulations providing for
28 the methods of conducting investigations under this section
29 and shall assure that steps are taken to avoid any conflict
30 of interest between the investigator and service delivery
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1 functions.
2 (5) Reports and investigations conducted under this
3 section shall comply with the provisions of Chapter 5, where
4 applicable.
5 (b) Investigation involving licensed facilities.--
6 (1) A report concerning adults residing in a State-
7 licensed facility shall be reported to the appropriate
8 licensing department and investigated under procedures
9 developed by the department in consultation with the bureau
10 within the Department of State responsible for the licensure
11 of the facility.
12 (2) The protective services agency may seek judicial
13 relief to require the provider to protect the health and
14 safety of the individual when the licensed program is
15 believed to continue to jeopardize the adult's health and
16 safety through evidence of risk substantiated.
17 (c) Unsubstantiated reports.--If after investigation by the
18 agency a report is unsubstantiated, the case shall be closed,
19 and all information shall be maintained for a period of one year
20 under procedures established by the department.
21 (d) Substantiated reports.--
22 (1) If a report is substantiated by the agency or if the
23 client assessment is necessary in order to determine whether
24 the report is substantiated, the agency shall provide for a
25 timely client assessment if the adult does not refuse consent
26 to an assessment.
27 (2) Upon completion of the assessment, written findings
28 shall be prepared that include recommended action in a
29 service plan. The service plan shall:
30 (i) Provide for the least restrictive alternative,
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1 encouraging client self-determination and continuity of
2 care.
3 (ii) Assure that services and supports are provided
4 in the most integrated setting and in a manner that is
5 least restrictive of the individual's liberty and may not
6 provide for relocation of the client without consent,
7 absent a court order.
8 (iii) Be written in plain language whenever possible
9 and prepared in a manner which can be easily understood
10 by an adult in need of protective services or that
11 adult's appointed guardian.
12 (iv) Be in writing and include a recommended course
13 of action that may include the pursuit of civil or
14 criminal remedies.
15 (3) If an adult who is found to be in need of protective
16 services refuses a client assessment or the development of a
17 service plan, the agency may apply to the case the provisions
18 of section 307.
19 Section 304. Provision of services.
20 (a) Availability of protective services.--An agency shall
21 offer protective services under any of the following conditions:
22 (1) An adult requests the services.
23 (2) Another interested person requests the services on
24 behalf of an adult.
25 (3) If, after investigation of a report, the agency
26 determines an adult is in need of the services.
27 (b) Consent by request.--
28 (1) Except as provided in section 307, an adult shall
29 receive protective services voluntarily. In no event may
30 protective services be provided under this chapter to an
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1 adult who refuses consent to the services or who, having
2 consented, withdraws the consent, unless the services are
3 ordered by a court or provided under section 307.
4 (2) Nothing in this chapter shall be construed to
5 prevent an agency from petitioning for the appointment of a
6 guardian pursuant to 20 Pa.C.S. (relating to decedents,
7 estates and fiduciaries).
8 (c) Interference with services.--If any person interferes
9 with the provision of services or the right of an adult to
10 consent to provision of services, the agency may petition the
11 court for an order enjoining the interference.
12 (d) Access to records.--An agency shall have access to all
13 records relevant to:
14 (1) Investigations of reports under section 303.
15 (2) Assessment of client need.
16 (3) Development of a service plan when an adult's need
17 for protective services has been or is being established.
18 (4) Delivery of services arranged for under the service
19 plan developed by the agency to respond to an adult's
20 assessed need for specific services.
21 (e) Access to persons.--An agency shall have access to
22 adults who have been reported to be in need of protective
23 services in order to:
24 (1) Investigate reports under section 303 and Chapter 5.
25 (2) Assess client need and develop a service plan for
26 addressing needs determined.
27 (3) Provide for the delivery of services by the agency
28 or other service provider arranged for under the service plan
29 developed by the agency.
30 (f) Denial of access to persons.--If the agency is denied
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1 access to an adult reported to be in need of protective services
2 and access is necessary to complete the investigation or the
3 client assessment and service plan or the delivery of needed
4 services in order to prevent further abuse, neglect,
5 exploitation or abandonment of the adult, the agency may
6 petition the court for an order to require the appropriate
7 access when either of the following conditions apply:
8 (1) The caregiver or a third party has interfered with
9 the completion of the investigation or the client assessment
10 and service plan or the delivery of services.
11 (2) The agency can demonstrate that the adult denies
12 access because of coercion, extortion or justifiable fear of
13 further abuse, neglect, exploitation or abandonment.
14 (g) Access by consent.--An agency's access to confidential
15 records held by other agencies or individuals and to an adult
16 reported to be in need of protective services shall require the
17 consent of the adult or a court-appointed guardian except as
18 provided for under this section or section 307.
19 (h) Denial of access to records.--If the agency is denied
20 access to records necessary for completion of a proper
21 investigation of a report or a client assessment and service
22 plan or the delivery of needed services in order to prevent
23 further abuse, neglect, exploitation or abandonment of the adult
24 reported to be in need of protective services, the agency may
25 petition the court of common pleas for an order requiring the
26 appropriate access when either of the following conditions
27 apply:
28 (1) The adult has provided written consent for any
29 confidential records to be disclosed and the keeper of the
30 records denies access.
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1 (2) The agency can demonstrate that the adult denies
2 access to records because of incompetence, coercion,
3 extortion or justifiable fear of future abuse, neglect,
4 exploitation or abandonment.
5 Section 305. Immunity from civil and criminal liability.
6 In the absence of willful misconduct or gross negligence, an
7 agency, its director and employees, protective services workers
8 or employees of the department shall not be civilly or
9 criminally liable for any decision or action or resulting
10 consequence of decisions or actions when acting under and
11 according to the provisions of this chapter.
12 Section 306. Confidentiality of records.
13 (a) General rule.--Information contained in reports, records
14 of investigation, client assessment and service plans shall be
15 considered confidential and shall be maintained under
16 regulations promulgated by the department to safeguard
17 confidentiality. Except as otherwise provided in subsection (b),
18 this information shall not be disclosed to anyone outside the
19 agency other than to a court of competent jurisdiction or
20 pursuant to a court order.
21 (b) Limited access to agency's protective services
22 records.--
23 (1) In the event that an investigation by an agency
24 results in the discovery of suspected criminal conduct, law
25 enforcement officials shall be given access to all relevant
26 records maintained by the agency or the department.
27 (2) In arranging specific services to carry out service
28 plans, an agency may disclose to appropriate services
29 providers such information as may be necessary to initiate
30 the delivery of services.
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1 (3) A subject of a report made under section 302 may
2 receive, upon written request, all information contained in
3 the report except that prohibited from disclosure under
4 paragraph (4).
5 (4) The release of information that would identify a
6 person who made a report of suspected abuse, neglect,
7 exploitation or abandonment or who cooperated in a subsequent
8 investigation is prohibited unless the secretary can
9 determine that such a release will not be detrimental to the
10 safety of the person.
11 (5) When the department is involved in the hearing of an
12 appeal by a subject of a report made under section 302, the
13 appropriate department staff shall be given access to all
14 information in the report record relevant to the appeal.
15 (6) For the purpose of monitoring agency performance,
16 appropriate staff of the department may access agency
17 protective services records.
18 Section 307. Involuntary intervention by emergency court order.
19 (a) Emergency petition.--
20 (1) Where there is clear and convincing evidence that,
21 if protective services are not provided, the person to be
22 protected is at imminent risk of death, serious physical harm
23 or serious bodily injury, the agency may petition the court
24 for an emergency order to provide the necessary services.
25 (2) The court of common pleas of each judicial district
26 shall ensure that a judge or magisterial district judge is
27 available on a 24-hour-a-day, 365-day-a-year basis to accept
28 and decide on petitions for an emergency court order under
29 this section whenever the agency determines that a delay
30 until normal court hours would significantly increase the
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1 danger the adult faces.
2 (b) Limited order.--The court, after finding clear and
3 convincing evidence of the need for an emergency order, shall
4 order only such services as are necessary to remove the
5 conditions creating the established need.
6 (c) Right to counsel.--In order to protect the rights of an
7 adult for whom protective services are being ordered, an
8 emergency court order under this section shall provide that the
9 adult has the right to legal counsel which shall be appointed by
10 the court at public expense.
11 (d) Forcible entry.--Where it is necessary to forcibly enter
12 premises after obtaining a court order, a law enforcement
13 officer may do so, accompanied by a representative of an agency.
14 (e) Health and safety requirements.--An agency shall take
15 reasonable steps to assure that while an adult is receiving
16 services under an emergency court order, the health and safety
17 needs of any of the adult's dependents are met and that personal
18 property and the dwelling the adult occupies are secure.
19 (f) Community or general acute care hospitals.--An adult
20 with medical conditions requiring treatment shall be sent to a
21 community or general acute care hospital.
22 (g) Nonrestrictive setting.--In those cases in which an
23 adult must be relocated, the court shall order the adult to be
24 relocated to a setting that will ensure the adult's health and
25 safety and appropriate care. The adult may not be moved to a
26 setting more restrictive of individual liberties than the
27 setting from which that adult came, unless requested by the
28 adult.
29 (h) Exclusion of remedy.--Nothing in this chapter shall be
30 construed to deny an adult access to emergency medical services
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1 or police protection that would be provided to anyone,
2 regardless of age, in similar circumstances.
3 Section 308. Rights of protective services clients.
4 (a) Minimum requirements.--The agency shall observe the
5 following minimum requirements to safeguard the rights of an
6 adult who is reported to be in need of protective services:
7 (1) The agency shall discreetly notify the adult during
8 the investigation that a report has been made and provide the
9 adult with a brief summary of the nature of the report.
10 (2) As provided under section 306(b)(3), the adult may
11 request and the agency shall provide additional information
12 contained in the report.
13 (3) Any denial of services by the department or an
14 authorized agency under this chapter shall be appealed
15 according to the provisions of the rules and regulations
16 issued by the department under Article XXII-A of the act of
17 April 9, 1929 (P.L.177, No.175), known as The Administrative
18 Code of 1929.
19 (b) Construction.--Nothing in this act shall be construed to
20 limit the right of an adult to file a petition pursuant to 23
21 Pa.C.S. Ch. 61 (relating to protection from abuse).
22 Section 309. Financial obligations, liabilities and payments.
23 An adult receiving services and each agency providing
24 services under this chapter shall comply with the following
25 provisions regarding liability for the payment of services:
26 (1) Funding to provide or make available protective
27 services under this chapter shall not:
28 (i) Supplant any public and private entitlements or
29 resources for which adults receiving protective services
30 under this chapter are or may be eligible.
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1 (ii) Be available until an adult has exhausted the
2 adult's eligibility and receipt of benefits under public
3 and private entitlements or resources.
4 (2) Funding available to local protective services
5 agencies under this chapter may be used to cover the costs of
6 activities including, but not limited to, the following:
7 (i) Administering protective services plans required
8 under section 301(b).
9 (ii) Receiving and maintaining records of reports of
10 abuse under section 302.
11 (iii) Conducting investigations of reported abuse
12 under section 303.
13 (iv) Carrying out client assessments and developing
14 service plans under sections 303 and 307.
15 (v) Petitioning the court under sections 304 and
16 307, or other relevant acts or provisions of law.
17 (vi) Providing emergency involuntary intervention
18 under section 307.
19 (vii) Arranging for available services needed to
20 carry out service plans, including, as appropriate, the
21 arrangement for services for other household members in
22 order to reduce, correct or eliminate abuse, neglect,
23 exploitation or abandonment of an adult.
24 (viii) Purchasing, on a temporary basis, services
25 determined by a service plan to be necessary to reduce,
26 correct or eliminate abuse, neglect, exploitation or
27 abandonment of an adult when the services are not
28 available within the existing resources of the agency or
29 other appropriate provider. The purchase of services
30 under this subparagraph is limited to a 30-day period,
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1 which period may be renewed with adequate justification
2 under regulations promulgated by the department.
3 (3) (i) The obligation of the Commonwealth and the
4 counties to provide funds to the department or any agency
5 for services provided pursuant to this chapter shall be
6 entirely discharged by the appropriations made to the
7 department or an agency.
8 (ii) Provided that the agency has met its
9 responsibility under the law, no action at law or equity
10 may be instituted in a court to require the department,
11 agency, county or Commonwealth to provide benefits or
12 services under this chapter for which appropriations from
13 the Commonwealth or counties are not available.
14 (4) Protective services clients receiving the same
15 services provided to others under an agency services plan
16 shall not be required to pay a fee for any services not
17 subject to cost sharing for other adults.
18 Section 310. Regulations.
19 (a) General rule.--The department shall develop regulations
20 in collaboration with adults with disabilities and groups
21 representing adults with disabilities, their families and
22 advocates.
23 (b) Promulgation of regulations.--The department shall
24 promulgate rules and regulations to carry out this chapter and
25 shall be responsible for presenting to the General Assembly
26 annually a report on the program and services performed.
27 (c) Enforcement.--This chapter shall be enforced only after
28 promulgation of regulations by the department, which regulations
29 shall take effect no later than 12 months after the effective
30 date of this section, except that section 301 shall apply when
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1 the agency certifies to the department that it is prepared to
2 fulfill its responsibilities. The certification shall be made
3 within 90 days following the effective date of the regulations.
4 Section 311. Funds for payment of administration of chapter.
5 Funds necessary to administer this chapter shall be provided
6 by annual appropriation by the General Assembly.
7 CHAPTER 5
8 REPORTING SUSPECTED ABUSE BY EMPLOYEES
9 Section 501. 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 or
13 neglect shall immediately make an oral report to an agency.
14 If applicable, the agency shall advise the employee or
15 administrator of additional reporting requirements that may
16 pertain under subsection (b). An employee shall notify the
17 administrator 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 law enforcement officials shall notify the
23 administrator that a report has been made with the law
24 enforcement officials.
25 (4) The employee may request the administrator to make
26 or assist the employee to make oral and written reports to
27 law enforcement officials required by this subsection.
28 (b) Mandatory reports to law enforcement officials.--
29 (1) An employee or an administrator who has reasonable
30 cause to suspect that a recipient is the victim of sexual
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1 abuse, serious physical injury or serious bodily injury or
2 that a death is suspicious shall, in addition to contacting
3 the agency and the department, immediately contact law
4 enforcement officials to make an oral report. An employee
5 shall notify the administrator immediately following the
6 report to law enforcement officials.
7 (2) Within 48 hours of making the oral report, the
8 employee and the administrator shall make a written report to
9 appropriate law enforcement officials.
10 (3) The law enforcement officials shall notify the
11 administrator that a report has been made with the law
12 enforcement officials.
13 (4) The employee may request the administrator to make
14 or to assist the employee to make the oral and written
15 reports to law enforcement officials required by this
16 subsection.
17 (c) Contents of report.--A written report under this section
18 shall be submitted in a manner and on forms prescribed by the
19 department. The report shall include, at a minimum, the
20 following information:
21 (1) Name, age and address of the recipient.
22 (2) Name and address of the recipient's guardian,
23 attorney-in-fact or next of kin.
24 (3) Name and address of the facility.
25 (4) Nature of the alleged offense.
26 (5) Any specific comments or observations that are
27 directly related to the alleged incident and the individual
28 involved.
29 Section 502. Reports to department and coroner or medical
30 examiner.
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1 (a) Department.--
2 (1) Within 48 hours of receipt of a written report under
3 section 501(a) involving sexual abuse, serious physical
4 injury, serious bodily injury or suspicious death, the agency
5 shall transmit a written report to the department.
6 Supplemental reports shall be transmitted as they are
7 obtained by the agency.
8 (2) A report under this subsection shall be made in a
9 manner and on forms prescribed by the department. The report
10 shall include, at a minimum, the following information:
11 (i) The name and address of the alleged victim.
12 (ii) The location where the suspected abuse
13 occurred.
14 (iii) The age and sex of the alleged perpetrator and
15 victim.
16 (iv) The nature and extent of the suspected abuse,
17 including any evidence of prior abuse.
18 (v) The name and relationship of the individual
19 responsible for causing the alleged abuse to the victim,
20 if known, and any evidence of prior abuse by the
21 individual.
22 (vi) The source of the report.
23 (vii) The individual making the report and the
24 location where the individual can be reached.
25 (viii) The actions taken by the reporting source,
26 including the taking of photographs and x-rays, removal
27 of the recipient and notification under subsection (b).
28 (ix) Any other information that the department may
29 require by regulation.
30 (b) Coroner or medical examiner.--For a report under section
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1 501(a) concerning the death of a recipient, if there is
2 reasonable cause to suspect that the recipient died as a result
3 of abuse or neglect, the agency shall give the oral report and
4 forward a copy of the written report to the appropriate coroner
5 or medical examiner within 24 hours.
6 Section 503. Investigation.
7 (a) Law enforcement officials.--Upon receipt of a report
8 under section 501(b), law enforcement officials shall conduct an
9 investigation to determine what criminal charges, if any, will
10 be filed.
11 (b) Notification.--If law enforcement officials have
12 reasonable cause to suspect that a recipient has suffered sexual
13 abuse, serious physical injury, serious bodily injury or a
14 suspicious death, law enforcement officials shall notify the
15 agency.
16 (c) Cooperation.--To the fullest extent possible, law
17 enforcement officials, facilities and agencies shall coordinate
18 their respective investigations and advise each other and
19 provide any applicable additional information on an ongoing
20 basis.
21 (d) Further notification.--
22 (1) Law enforcement officials shall notify an agency and
23 facility of a decision regarding criminal charges.
24 (2) The agency and the department shall keep a record of
25 any decision regarding criminal charges.
26 (e) Compliance with Chapter 3.--In addition to the
27 provisions of this section, the agency shall comply with the
28 provisions of Chapter 3.
29 Section 504. Restrictions on employees.
30 (a) Plan of supervision.--
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1 (1) On notification that an employee is alleged to have
2 committed abuse, the facility shall immediately implement a
3 plan of supervision or, where appropriate, suspend the
4 employee, subject to approval by the agency and by the
5 Commonwealth agency with regulatory authority over the
6 facility.
7 (2) A plan of supervision for a home health agency shall
8 include periodic random direct inspections of recipients by a
9 facility employee who has been continuously employed by the
10 facility for a period of at least one year.
11 (b) Prohibition.--
12 (1) On the filing of criminal charges against a
13 facility's employee, the Commonwealth agency that licenses,
14 regulates or has fiscal authority over the facility shall
15 order the facility to immediately prohibit the employee from
16 having access to recipients at the facility.
17 (2) If the employee is a director, operator,
18 administrator or supervisor, the employee shall be subject to
19 restrictions deemed appropriate by the Commonwealth agency
20 that licenses, regulates or has fiscal authority over the
21 facility to assure the safety of the recipients of the
22 facility.
23 Section 505. Confidentiality of and access to confidential
24 reports.
25 A report under this chapter shall be made available in the
26 following circumstances:
27 (1) Information may be disclosed to a court of competent
28 jurisdiction or under a court order.
29 (2) If an investigation by an agency or law enforcement
30 results in a report of criminal conduct, law enforcement
20070H0361B0425 - 29 -
1 officials shall have access to relevant records maintained by
2 the agency or the department.
3 (3) In arranging specific services to effect service
4 plans, an agency may disclose to appropriate service
5 providers information necessary to initiate the delivery of
6 services.
7 (4) A subject of a report may receive, upon written
8 request, information contained in the report except that
9 prohibited from being disclosed under paragraph (5).
10 (5) Except for reports to law enforcement officials, the
11 release of information that would identify the person who
12 made a report under this chapter or who cooperated in a
13 subsequent investigation is prohibited. Law enforcement
14 officials shall treat all reporting sources as confidential
15 information.
16 (6) When the department is involved in the hearing of an
17 appeal by a subject of a report, the appropriate department
18 staff shall be given access to information in the report
19 record relevant to the appeal.
20 (7) For the purposes of monitoring agency performance,
21 appropriate staff of the department may be given access to
22 agency protective service records.
23 Section 506. Penalties.
24 (a) Administrative.--
25 (1) An administrator who intentionally or willfully
26 fails to comply or obstructs compliance with the provisions
27 of this chapter or intimidates or commits a retaliatory act
28 against an employee who complies in good faith with the
29 provisions of this chapter commits a violation of this
30 chapter and shall be subject to an administrative penalty
20070H0361B0425 - 30 -
1 under paragraph (3).
2 (2) A facility owner that intentionally or willfully
3 fails to comply with or obstructs compliance with this
4 chapter or that intimidates or commits a retaliatory act
5 against an employee who complies in good faith with this
6 chapter commits a violation of this chapter and shall be
7 subject to an administrative penalty under paragraph (3).
8 (3) The Commonwealth agency or Commonwealth agencies
9 which regulate a facility shall have jurisdiction to
10 determine violations of this chapter and may issue an order
11 assessing a civil penalty of not more than $2,500. An order
12 under this paragraph is subject to 2 Pa.C.S. Ch. 5 Subch. A
13 (relating to practice and procedure of Commonwealth agencies)
14 and Ch. 7 Subch. A (relating to judicial review of
15 Commonwealth agency action).
16 (b) Criminal.--
17 (1) An administrator who intentionally or willfully
18 fails to comply or obstructs compliance with this chapter
19 commits a misdemeanor of the third degree and shall, upon
20 conviction, be sentenced to pay a fine of $2,500 or to
21 imprisonment for not more than one year, or both.
22 (2) A facility owner that intentionally or willfully
23 fails to comply with or obstructs compliance with this
24 chapter commits a misdemeanor of the third degree and shall,
25 upon conviction, be sentenced to pay a fine of $2,500 or to
26 imprisonment for not more than one year, or both.
27 (c) Penalties for failure to report.--A person required
28 under this chapter to report a case of suspected abuse or
29 neglect who willfully fails to do so commits a summary offense
30 for the first violation and a misdemeanor of the third degree
20070H0361B0425 - 31 -
1 for a second or subsequent violation.
2 (d) Whistleblower protection.--A person required under this
3 act to report a case of suspected abuse or neglect shall not be
4 subject to any retaliatory action for reporting suspected abuse
5 or neglect and shall have the protections and remedies set forth
6 in the act of December 12, 1986 (P.L.1559, No.169), known as the
7 Whistleblower Law.
8 Section 507. Immunity.
9 No administrator or facility shall be held civilly liable for
10 any action directly related to good faith compliance with this
11 chapter.
12 Section 508. Regulations.
13 (a) General rule.--The department, the Department of Health
14 and the Department of Public Welfare shall promulgate the
15 regulations necessary to carry out this chapter.
16 (b) Organizations.--The department, the Department of Public
17 Welfare and the Department of Health shall promulgate within 120
18 days interim regulations to be utilized in determining
19 organizations that are subject to Chapter 5 of the act of
20 November 6, 1987 (P.L.381, No.79), known as the Older Adults
21 Protective Services Act. Regulations under this subsection are
22 exempt from the following:
23 (1) Act of July 31, 1968 (P.L.769, No.240), referred to
24 as the Commonwealth Documents Law.
25 (2) Act of October 15, 1980 (P.L.950, No.164), known as
26 the Commonwealth Attorneys Act.
27 (3) Act of June 25, 1982 (P.L.633, No.181), known as the
28 Regulatory Review Act.
29 CHAPTER 7
30 MISCELLANEOUS PROVISIONS
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1 Section 701. Repeals.
2 All acts and parts of acts are repealed insofar as they are
3 inconsistent with this act.
4 Section 702. Effective date.
5 This act shall take effect in six months.
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