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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY VANCE, MENSCH, ERICKSON, BROWNE, BOSCOLA, FONTANA, RAFFERTY, ORIE, PICCOLA, WAUGH, TOMLINSON, SOLOBAY, BREWSTER AND WOZNIAK, FEBRUARY 25, 2011 |
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| REFERRED TO AGING AND YOUTH, FEBRUARY 25, 2011 |
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| AN ACT |
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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; and |
7 | making repeals," further providing for legislative policy, |
8 | for definitions, for involuntary intervention by emergency |
9 | court order, for information relating to prospective facility |
10 | personnel and for grounds for denying employment; providing |
11 | for certificate of employability; further providing for |
12 | provisional employees for limited periods; providing for |
13 | requirements concerning employees, for comparison study by |
14 | Department of Aging and for applicability relating to |
15 | criminal history for employees. |
16 | The General Assembly of the Commonwealth of Pennsylvania |
17 | hereby enacts as follows: |
18 | Section 1. Section 102 of the act of November 6, 1987 |
19 | (P.L.381, No.79), known as the Older Adults Protective Services |
20 | Act, renumbered December 18, 1996 (P.L.1125, No.169), is amended |
21 | to read: |
22 | Section 102. Legislative policy. |
23 | It is declared the policy of the Commonwealth of Pennsylvania |
24 | that older adults who lack the capacity to protect themselves |
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1 | and are at imminent risk of abuse, neglect, exploitation or |
2 | abandonment shall have access to and be provided with services |
3 | necessary to protect their health, safety and welfare. It is not |
4 | the purpose of this act to place restrictions upon the personal |
5 | liberty of incapacitated older adults, but this act should be |
6 | liberally construed to assure the availability of protective |
7 | services to all older adults in need of them. Such services |
8 | shall safeguard the rights of incapacitated older adults while |
9 | protecting them from abuse, neglect, exploitation and |
10 | abandonment. It is the intent of the General Assembly to provide |
11 | for the detection and reduction, correction or elimination of |
12 | abuse, neglect, exploitation and abandonment, and to establish a |
13 | program of protective services for older adults in need of them. |
14 | It is further declared the policy of the Commonwealth that |
15 | the conviction of any offense that involves serious physical |
16 | harm, a threat of serious physical harm or conduct which |
17 | evidences a reckless disregard for the vulnerability of care- |
18 | dependent populations may legitimately warrant a lifetime ban on |
19 | employment in facilities covered under this act. Further, for |
20 | facilities covered under this act, it is the policy of the |
21 | Commonwealth that the conviction of any offenses involving |
22 | misappropriation or misuse of property or convictions which |
23 | involved inappropriate or irresponsible behavior may |
24 | legitimately warrant a ban on employment. |
25 | Section 2. The definitions of "care," "employee," |
26 | "exploitation" and "facility" in section 103 of the act, amended |
27 | December 18, 1996 (P.L.1125, No.169), are amended to read: |
28 | Section 103. Definitions. |
29 | The following words and phrases when used in this act shall |
30 | have the meanings given to them in this section unless the |
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1 | context clearly indicates otherwise: |
2 | * * * |
3 | "Care." Services provided to meet a person's need for |
4 | personal care or health care[. Services may include homemaker |
5 | services, assistance with activities of daily living, physical |
6 | therapy, occupational therapy, speech therapy, medical social |
7 | services, home-care aide services, companion-care services, |
8 | private duty nursing services, respiratory therapy, intravenous |
9 | therapy, in-home dialysis and durable medical equipment |
10 | services,] which are routinely provided unsupervised and which |
11 | require interaction with the care-dependent person. The term |
12 | does not include durable medical equipment delivery. |
13 | * * * |
14 | "Employee." [An individual who is employed by a facility. |
15 | The term includes contract employees who have direct contact |
16 | with residents or unsupervised access to their personal living |
17 | quarters. The term includes any person who is employed or who |
18 | enters into a contractual relationship to provide care to a |
19 | care-dependent individual for monetary consideration in the |
20 | individual's place of residence.] An individual who has direct |
21 | contact with residents or unsupervised access to their living |
22 | quarters and is either employed by a facility or enters into a |
23 | contractual relationship with a facility to provide care to a |
24 | care-dependent individual for monetary consideration in the |
25 | individual's place of residence. |
26 | "Exploitation." An act or course of conduct by a caretaker |
27 | or other person, including an individual who is acting under a |
28 | power of attorney, against an older adult or an older adult's |
29 | resources, without the informed consent of the older adult or |
30 | with consent obtained through misrepresentation, coercion or |
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1 | threats of force, that results in monetary, personal or other |
2 | benefit, gain or profit for the perpetrator or monetary or |
3 | personal loss to the older adult. |
4 | "Facility." Any of the following: |
5 | (1) A domiciliary care home as defined in section 2202-A |
6 | of the act of April 9, 1929 (P.L.177, No.175), known as The |
7 | Administrative Code of 1929. |
8 | (2) [A home health care agency. |
9 | (3) A long-term care nursing facility as defined in |
10 | section 802.1 of the act of July 19, 1979 (P.L.130, No.48), |
11 | known as the Health Care Facilities Act.] The following |
12 | entities as defined in section 802.1 of the act of July 19, |
13 | 1979 (P.L.130, No.48), known as the Health Care Facilities |
14 | Act: |
15 | (i) A home health care agency. |
16 | (ii) A long-term care nursing facility. |
17 | (iii) A hospice. |
18 | (iv) A home care agency. |
19 | (v) A home care registry. |
20 | (4) An older adult daily living center as defined in |
21 | section 2 of the act of July 11, 1990 (P.L.499, No.118), |
22 | known as the Older Adult Daily Living Centers Licensing Act. |
23 | (5) A personal care home or assisted living residence as |
24 | defined in section 1001 of the act of June 13, 1967 (P.L.31, |
25 | No.21), known as the Public Welfare Code. |
26 | (6) A continuing care provider as defined in section 3 |
27 | of the act of June 18, 1984 (P.L.391, No.82), known as the |
28 | Continuing-Care Provider Registration and Disclosure Act. |
29 | The term does not include an entity licensed by the Department |
30 | of Health to provide drug and alcohol addiction treatment |
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1 | services. |
2 | * * * |
3 | Section 3. Section 307(a) and (b) of the act, amended |
4 | December 18, 1996 (P.L.1125, No.169), are amended to read: |
5 | Section 307. Involuntary intervention by emergency court order. |
6 | (a) Emergency petition.--[Where there was clear and |
7 | convincing evidence that if protective services are not |
8 | provided, the person to be protected is at imminent risk of |
9 | death or serious physical harm, the agency may petition the |
10 | court for an emergency order to provide the necessary services.] |
11 | An agency may petition a court of common pleas for an emergency |
12 | order to provide protective services to an older adult who is at |
13 | imminent risk of financial exploitation, death or serious |
14 | physical harm. The court of common pleas shall grant the |
15 | agency's petition if it finds, by a preponderance of the |
16 | evidence, that failure to provide protective services will place |
17 | the older adult at imminent risk of financial exploitation, |
18 | death or serious physical harm. The courts of common pleas of |
19 | each judicial district shall ensure that a judge or [district |
20 | justice] magisterial district judge is available on a 24-hour-a- |
21 | day, 365-day-a-year basis to accept and [decide] rule on |
22 | petitions for an emergency court order under this section |
23 | whenever the agency determines that a delay until normal court |
24 | hours would significantly increase the danger the older adult |
25 | faces. |
26 | (b) Limited order.--The court, after finding [clear and |
27 | convincing] a preponderance of evidence of the need for an |
28 | emergency order, shall order only such services as are necessary |
29 | to remove the conditions creating the established need. |
30 | * * * |
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1 | Section 4. Sections 501 and 502 of the act, added December |
2 | 18, 1996 (P.L.1125, No.169), are amended to read: |
3 | Section 501. Definitions. |
4 | The following words and phrases when used in this chapter |
5 | shall have the meanings given to them in this section unless the |
6 | context clearly indicates otherwise: |
7 | "Applicant." An individual [who submits an application, |
8 | which is] being considered for employment[, to a facility.] or |
9 | engagement by a facility as an employee. |
10 | "State Police." The Pennsylvania State Police. |
11 | Section 502. Information relating to [prospective facility |
12 | personnel] applicants. |
13 | (a) General rule.--[A facility shall require all applicants |
14 | to submit with their applications, and shall require all |
15 | administrators and any operators who have or may have direct |
16 | contact with a recipient] Prior to hiring or engaging an |
17 | applicant, a facility shall require the applicant to submit[,] |
18 | the following information obtained within the preceding one-year |
19 | period: |
20 | (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal |
21 | history record information), a report of criminal history |
22 | record information from the State Police or a statement from |
23 | the State Police that their central repository contains no |
24 | such information relating to [that person] the applicant. The |
25 | criminal history record information shall be limited to that |
26 | which is disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) |
27 | (relating to general regulations). |
28 | (2) Where the applicant is not and for the two years |
29 | immediately preceding the date of application has not been a |
30 | resident of this Commonwealth, [administration shall require |
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1 | the applicant to submit with the application for employment] |
2 | a report of Federal criminal history record information |
3 | pursuant to the Federal Bureau of Investigation's |
4 | appropriation under the Departments of State, Justice, and |
5 | Commerce, the Judiciary, and Related Agencies Appropriation |
6 | Act, 1973 (Public Law 92-544, 86 Stat. 1109). The department |
7 | shall be the intermediary for the purposes of this paragraph. |
8 | For the purposes of this paragraph, the applicant shall |
9 | submit a full set of fingerprints [to the State Police, which |
10 | shall forward them] in a manner prescribed by the department. |
11 | The Commonwealth shall submit the fingerprints to the Federal |
12 | Bureau of Investigation for a national criminal history |
13 | record check. The information obtained from the criminal |
14 | record check shall be used by the department to determine the |
15 | applicant's eligibility. The determination shall be submitted |
16 | to the [administrator] facility by the applicant prior to |
17 | commencing employment. The [administrator] facility shall |
18 | insure confidentiality of the information. |
19 | (a.1) Additional information.--The department or the State |
20 | Police may require the applicant to submit additional |
21 | information from a court or other authority if the criminal |
22 | history record does not provide the disposition of a criminal |
23 | charge or the information needed to compare a Federal or out-of- |
24 | State criminal offense to Pennsylvania criminal offenses. |
25 | (b) Fees.--The State Police may charge the applicant a fee |
26 | of not more than $10 to conduct the criminal record check |
27 | required under subsection (a)(1). The State Police may charge a |
28 | fee of not more than the established charge by the Federal |
29 | Bureau of Investigation for the criminal history record check |
30 | required under subsection (a)(2). The State Police shall develop |
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1 | a billing system to allow facilities [and administrators] to |
2 | assume responsibility for the fee under this subsection. The |
3 | State Police shall allow facilities [or administrators] to |
4 | establish an account for quarterly payment. |
5 | Section 5. Section 503(a) of the act, amended June 9, 1997 |
6 | (P.L.160, No.13), is amended and the section is amended by |
7 | adding subsections to read: |
8 | Section 503. Grounds for denying employment. |
9 | [(a) General rule.--In no case shall a facility hire an |
10 | applicant or retain an employee required to submit information |
11 | pursuant to section 502(a) if the applicant's or employee's |
12 | criminal history record information indicates the applicant or |
13 | employee has been convicted of any of the following offenses: |
14 | (1) An offense designated as a felony under the act of |
15 | April 14, 1972 (P.L.233, No.64), known as The Controlled |
16 | Substance, Drug, Device and Cosmetic Act. |
17 | (2) An offense under one or more of the following |
18 | provisions of 18 Pa.C.S. (relating to crimes and offenses): |
19 | Chapter 25 (relating to criminal homicide). |
20 | Section 2702 (relating to aggravated assault). |
21 | Section 2901 (relating to kidnapping). |
22 | Section 2902 (relating to unlawful restraint). |
23 | Section 3121 (relating to rape). |
24 | Section 3122.1 (relating to statutory sexual |
25 | assault). |
26 | Section 3123 (relating to involuntary deviate sexual |
27 | intercourse). |
28 | Section 3124.1 (relating to sexual assault). |
29 | Section 3125 (relating to aggravated indecent |
30 | assault). |
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1 | Section 3126 (relating to indecent assault). |
2 | Section 3127 (relating to indecent exposure). |
3 | Section 3301 (relating to arson and related |
4 | offenses). |
5 | Section 3502 (relating to burglary). |
6 | Section 3701 (relating to robbery). |
7 | A felony offense under Chapter 39 (relating to theft |
8 | and related offenses) or two or more misdemeanors under |
9 | Chapter 39. |
10 | Section 4101 (relating to forgery). |
11 | Section 4114 (relating to securing execution of |
12 | documents by deception). |
13 | Section 4302 (relating to incest). |
14 | Section 4303 (relating to concealing death of child). |
15 | Section 4304 (relating to endangering welfare of |
16 | children). |
17 | Section 4305 (relating to dealing in infant |
18 | children). |
19 | Section 4952 (relating to intimidation of witnesses |
20 | or victims). |
21 | Section 4953 (relating to retaliation against witness |
22 | or victim). |
23 | A felony offense under section 5902(b) (relating to |
24 | prostitution and related offenses). |
25 | Section 5903(c) or (d) (relating to obscene and other |
26 | sexual materials and performances). |
27 | Section 6301 (relating to corruption of minors). |
28 | Section 6312 (relating to sexual abuse of children). |
29 | (3) A Federal or out-of-State offense similar in nature |
30 | to those crimes listed in paragraphs (1) and (2).] |
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1 | (a.1) Lifetime bans.--In no case shall a facility hire or |
2 | engage an applicant required to submit information pursuant to |
3 | section 502(a) or retain an employee required to submit |
4 | information pursuant to section 508, if the applicant's or |
5 | employee's criminal history record information indicates the |
6 | applicant or employee has been convicted of any of the following |
7 | offenses: |
8 | (1) An offense under one of the following provisions of |
9 | 18 Pa.C.S. (relating to crimes and offenses) which is graded |
10 | as a felony: |
11 | Chapter 25 (relating to criminal homicide). |
12 | Section 2713 (relating to neglect of care-dependent |
13 | person). |
14 | Section 2901 (relating to kidnapping). |
15 | Section 3121 (relating to rape). |
16 | Section 3123 (relating to involuntary deviate sexual |
17 | intercourse). |
18 | Section 3124.1 (relating to sexual assault). |
19 | Section 3124.2 (relating to institutional sexual |
20 | assault). |
21 | Section 3125 (relating to aggravated indecent |
22 | assault). |
23 | Section 3126 (relating to indecent assault). |
24 | Section 3301 (relating to arson and related |
25 | offenses). |
26 | Section 4302 (relating to incest). |
27 | Section 6312 (relating to sexual abuse of children). |
28 | (2) A Federal or out-of-State offense similar in nature |
29 | to any offense listed in paragraph (1). |
30 | (a.2) Lifetime bans with possibility of certificate of |
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1 | employability.--Except as provided in section 503.1, a facility |
2 | shall not hire or engage an applicant required to submit |
3 | information pursuant to section 502(a) or retain an employee |
4 | required to submit information pursuant to section 508 if the |
5 | applicant's or employee's criminal history record information |
6 | indicates the applicant or employee has been convicted of any of |
7 | the following offenses: |
8 | (1) An offense under one of the following provisions of |
9 | 18 Pa.C.S. which is graded as a felony: |
10 | Section 2702 (relating to aggravated assault). |
11 | Section 2709.1 (relating to stalking). |
12 | Section 3122.1 (relating to statutory sexual |
13 | assault). |
14 | Section 3701 (relating to robbery). |
15 | Section 4304 (relating to endangering welfare of |
16 | children). |
17 | (2) An offense under one of the following provisions of |
18 | 18 Pa.C.S. which is graded as a misdemeanor: |
19 | Section 2713. |
20 | Section 3126. |
21 | (3) A Federal or out-of-State offense similar in nature |
22 | to any offense listed in paragraph (1) or (2). |
23 | (a.3) Ten-year ban.--Except as provided in section 503.1, a |
24 | facility shall not hire or engage an applicant required to |
25 | submit information pursuant to section 502(a) or retain an |
26 | employee required to submit information pursuant to section 508 |
27 | if the applicant's or employee's criminal history record |
28 | information as supplemented under subsection (a.4) indicates the |
29 | applicant or employee has been convicted, within ten years |
30 | immediately preceding the date of the report, not including any |
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1 | time spent in incarceration, of any of the following offenses: |
2 | (1) An offense graded a felony under the act of April |
3 | 14, 1972 (P.L.233, No.64), known as The Controlled Substance, |
4 | Drug, Device and Cosmetic Act. |
5 | (2) An offense under one of the following provisions of |
6 | 18 Pa.C.S. which is graded as a felony: |
7 | Section 2902 (relating to unlawful restraint). |
8 | Section 3502 (relating to burglary). |
9 | Section 3702 (relating to robbery of motor vehicle). |
10 | Section 4101 (relating to forgery). |
11 | Section 4952 (relating to intimidation of witnesses |
12 | or victims). |
13 | Section 4953 (relating to retaliation against |
14 | witness, victim or party). |
15 | Section 5902 (relating to prostitution and related |
16 | offenses). |
17 | (3) An offense under one of the following provisions of |
18 | 18 Pa.C.S. which is graded as a misdemeanor: |
19 | Chapter 25. |
20 | Section 2902. |
21 | Section 3127 (relating to indecent exposure). |
22 | Section 4101. |
23 | Section 4114 (relating to securing execution of |
24 | documents by deception). |
25 | Section 4303 (relating to concealing death of child). |
26 | Section 4305 (relating to dealing in infant |
27 | children). |
28 | Section 6301(a)(1) (relating to corruption of |
29 | minors). |
30 | (4) A felony offense under 18 Pa.C.S. Ch. 39 (relating |
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1 | to theft and related offenses) or two or more misdemeanors |
2 | under 18 Pa.C.S. Ch. 39. |
3 | (5) A Federal or out-of-State offense similar to any |
4 | offense listed in paragraph (1), (2), (3) or (4). |
5 | (a.4) Duty of applicant or employee.--An applicant or |
6 | employee required to submit information under section 502(a) or |
7 | 508 who has been incarcerated for an offense enumerated under |
8 | subsection (a.2) or (a.3) shall provide the facility with |
9 | documentation of time spent in incarceration and the date of |
10 | release from incarceration. |
11 | * * * |
12 | (d) Right of review.--An applicant or employee may review, |
13 | challenge and appeal the completeness or accuracy of that |
14 | applicant's or employee's criminal history report under 18 |
15 | Pa.C.S. Ch. 91 (relating to criminal history record |
16 | information). An applicant or employee may challenge the |
17 | decision of the department involving the Federal criminal |
18 | history record by filing a petition with the department in |
19 | accordance with 2 Pa.C.S. (relating to administrative law and |
20 | procedure). An applicant or employee provisionally employed |
21 | under section 506 may continue to be employed pending the |
22 | ultimate resolution of such a challenge and any subsequent |
23 | appeal, unless a supersedeas or temporary injunction is entered |
24 | prohibiting the continued employment of the individual. |
25 | Section 6. The act is amended by adding a section to read: |
26 | Section 503.1. Certificate of employability. |
27 | (a) General rule.-- |
28 | (1) An individual who would otherwise be precluded from |
29 | employment by a facility under section 503(a.2) may petition |
30 | for a certificate of employability provided that at least ten |
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1 | years, not including any time spent in incarceration, have |
2 | passed since the individual's conviction of any offense |
3 | listed under section 503(a.2). |
4 | (2) An individual who would otherwise be precluded from |
5 | employment by a facility under section 503(a.3) may petition |
6 | for a certificate of employability provided that at least |
7 | five years, not including any time spent in incarceration, |
8 | have passed since the individual's conviction of any offense |
9 | listed under section 503(a.3). |
10 | (3) A certificate of employability granted under this |
11 | section shall be applicable to any facility subject to this |
12 | act. The issuance of a certificate of employability shall |
13 | permit an individual to seek and possibly obtain employment |
14 | subject to this act, but in no way guarantees that a facility |
15 | will offer a position to the individual. |
16 | (b) Petition and hearing.--An individual seeking a |
17 | certificate of employability shall file a petition with the |
18 | department. A hearing officer designated by the department shall |
19 | conduct a hearing on the petition in accordance with the |
20 | provisions of 2 Pa.C.S. (relating to administrative law and |
21 | procedure). The petition shall indicate whether the individual |
22 | requests a face-to-face hearing, which will be conducted at the |
23 | department's offices in Harrisburg. If not specified, the |
24 | hearing may be conducted by telephone or other means as |
25 | determined by the department. |
26 | (c) Determination.-- |
27 | (1) The department shall make a written determination as |
28 | to whether the petitioning individual will receive a |
29 | certificate of employability. The department must apply the |
30 | criteria of this subsection in reaching its decision. |
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1 | (2) A determination by the department shall be a final |
2 | agency determination with a right to appeal to the |
3 | Commonwealth Court. |
4 | (d) Evidence.--The individual petitioning for a certificate |
5 | of employability has the burden of proving by a preponderance of |
6 | the evidence the individual's fitness to work with care- |
7 | dependent individuals. The department's determination about the |
8 | individual's fitness and whether it should issue a certificate |
9 | of employability shall include the following factors: |
10 | (1) The amount of time that has elapsed since the |
11 | individual's last conviction of an offense listed in section |
12 | 503 and, if applicable, proof of the individual's release |
13 | from incarceration. |
14 | (2) The length, consistency and character of the |
15 | individual's employment history. |
16 | (3) The circumstances of a section 503 offense for which |
17 | the individual was convicted and the nature of the |
18 | conviction. |
19 | (4) If the individual asserts that a section 503 offense |
20 | was related to the individual's substance abuse, whether the |
21 | individual has undergone substance abuse treatment, is |
22 | maintaining recovery and the length of time the individual |
23 | has been in recovery. |
24 | (5) Other evidence of postconviction rehabilitation, |
25 | including the individual's history of community service, |
26 | psychological counseling and character references. |
27 | (6) In addition to evidence presented in the petition |
28 | for a certificate of employability, the department may |
29 | consider oral or written testimony or statements, relevant to |
30 | the factors listed above, from: |
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1 | (i) Licensed professionals. |
2 | (ii) Members of the community. |
3 | (iii) Public officials. |
4 | (iv) Former employers of the individual. |
5 | (v) A facility intending to hire or engage the |
6 | applicant. |
7 | (vi) Others with knowledge of the individual or |
8 | other evidence relevant to the petition. |
9 | (7) In addition to evidence presented in the petition |
10 | for a certificate of employability, the department shall |
11 | notify the following individuals about the proceeding and the |
12 | opportunity for them to provide a written statement and shall |
13 | consider any written statement submitted by them: |
14 | (i) A district attorney or other prosecutor in the |
15 | jurisdiction where the individual was convicted of an |
16 | offense listed in section 503. |
17 | (ii) The victim, or family members of the victim, of |
18 | any section 503 offense committed by the individual. |
19 | (e) Submission of evidence.--An individual petitioning for a |
20 | certificate of employability shall submit any and all written |
21 | evidence relevant to subsection (d) within 30 days of the |
22 | initial filing of the petition with the department. Any |
23 | submission of written evidence listed under subsection (d) after |
24 | this 30-day period shall be accepted by the hearing officer for |
25 | good cause shown. |
26 | (f) Determination.--The department's hearing officer shall: |
27 | (1) Conduct a hearing on a petition for a certificate of |
28 | employability within 90 days of the petition being received. |
29 | (2) Issue a determination within 30 days of the hearing. |
30 | (3) Have the authority to grant an extension of the |
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1 | deadlines set by paragraph (1) or (2) if the petitioning |
2 | individual or the department shows good cause for an |
3 | extension. |
4 | (g) Rules and regulations.--The department shall establish |
5 | rules and regulations for the review of petitions for a |
6 | certificate of employability consistent with this section. |
7 | Copies of the rules and regulations shall be made available for |
8 | distribution to the public. |
9 | (h) Fees.--The department shall, by regulation, establish |
10 | reasonable fees to petition for a certificate of employability. |
11 | No petition shall be considered by the department unless |
12 | accompanied by a fee. |
13 | (i) Notice to applicants.--Notification of the provisions of |
14 | this section shall be provided by the facility in a form |
15 | designated by the department, to each applicant. |
16 | (j) Limitation of certificate of employability.-- |
17 | Certificates of employability shall state that their only |
18 | purpose is to exempt successful petitioners from the criminal |
19 | record hiring prohibitions of this act and that they do not |
20 | address any other qualifications of the individual to be |
21 | employed in a facility or obligate facilities to hire or engage |
22 | a particular individual. |
23 | (k) Grandfathering for training purposes.--An individual who |
24 | is granted a certificate of employability and who has not been |
25 | employed in a facility within a year of the date of petition for |
26 | the certificate will not be exempted from any training |
27 | requirements imposed by law for new employees. |
28 | Section 7. Section 506 of the act, added December 18, 1996 |
29 | (P.L.1125, No.169), is amended to read: |
30 | Section 506. Provisional [employees] employment for limited |
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1 | periods. |
2 | Notwithstanding [section 502 administrators] sections 502 and |
3 | 503, facilities may employ applicants on a provisional basis for |
4 | a single period not to exceed 30 days or, for applicants under |
5 | section 502(a)(2), a period of 90 days, if all of the following |
6 | conditions are met: |
7 | (1) The applicant has applied for the information |
8 | required under section 502 and the applicant provides a copy |
9 | of the appropriate completed request forms to the |
10 | [administrator] facility. |
11 | (2) The [administrator] facility has no knowledge of |
12 | information pertaining to the applicant which would |
13 | disqualify [him] the applicant from employment pursuant to |
14 | section 503, subject to 18 Pa.C.S. § 4911 (relating to |
15 | tampering with public records or information). |
16 | (3) The applicant swears or affirms in writing that [he] |
17 | the applicant is not disqualified from employment under |
18 | section 503. |
19 | (4) [If] Except as provided under section 503(a), if the |
20 | information obtained under section 502 reveals that the |
21 | applicant is disqualified from employment under section 503, |
22 | the applicant shall be immediately dismissed by the |
23 | [administrator] facility. |
24 | (5) The facility agrees to supervise applicants during |
25 | the provisional employment. The department shall develop |
26 | guidelines regarding the supervision of applicants. [For a |
27 | home health care agency, supervision shall include random |
28 | direct supervision by an employee who has been employed by |
29 | the facility for a period of one year.] |
30 | Section 8. The act is amended by adding a section to read: |
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1 | Section 506.1. Requirements concerning employees. |
2 | The following shall apply: |
3 | (1) If the information obtained under section 502(a) |
4 | reveals that an employee is disqualified from employment |
5 | under sections 503(a.2) or (a.3), and the employee files a |
6 | petition for a certificate of employability pursuant to |
7 | section 503.1, that the employee shall either, at the option |
8 | of the facility, be placed on suspension without pay or |
9 | continue employment under appropriate supervision with no |
10 | unsupervised direct contact with residents until such time as |
11 | a certificate of employability is issued or an appeal is |
12 | filed. The department shall develop guidelines regarding the |
13 | supervision of employees under this paragraph. |
14 | (2) If the information obtained under section 502(a) |
15 | reveals that an employee is disqualified from employment |
16 | under section 503(a.1), or is disqualified from employment |
17 | under section 503(a.2) or (a.3) and fails to file a petition |
18 | for a certificate of employability within 30 days of |
19 | receiving a prohibitive hire letter from the department, the |
20 | employee shall be immediately dismissed. |
21 | (3) Except as provided in paragraph (4), if a petition |
22 | for a certificate of employability of an employee is denied |
23 | pursuant to section 503.1, the employee on suspension or |
24 | supervised employment shall be immediately dismissed. |
25 | (4) If an appeal of the denial of a certificate of |
26 | employability is filed by an individual on suspension or |
27 | supervised employment, then the facility shall have the |
28 | option to continue the suspension period as described in |
29 | paragraph (1). |
30 | (5) Within 60 days of the effective date of this |
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1 | section, facilities shall provide copies of sections 503, |
2 | 503.1 and 506.1 to all employees. |
3 | Section 9. Section 508 of the act, amended June 9, 1997 |
4 | (P.L.160, No.13), is amended to read: |
5 | Section 508. Applicability. |
6 | This chapter shall apply as follows: |
7 | [(1) An individual who, on the effective date of this |
8 | chapter, has continuously for a period of one year been an |
9 | employee of the same facility shall be exempt from section |
10 | 502 as a condition of continued employment. |
11 | (2) If an employee is not exempt under paragraph (1), |
12 | the employee and the facility shall comply with section 502 |
13 | within one year of the effective date of this chapter. |
14 | (3) If an employee who is exempt under paragraph (1) |
15 | seeks employment with a different facility, the employee and |
16 | the facility shall comply with section 502.] |
17 | (3.1) (i) A facility shall, within 18 months of the |
18 | effective date of this paragraph, comply with sections |
19 | 502 and 503 as a condition of continued employment for |
20 | each employee. |
21 | (ii) The facility may use criminal history record |
22 | information previously used to comply with sections 502 |
23 | and 503, upon certification by the facility that: |
24 | (A) The employee has been continuously employed |
25 | by the facility since the date that the employee was |
26 | hired or engaged under this act. |
27 | (B) The facility has no knowledge that the |
28 | employee has been convicted of any criminal offense |
29 | since the date of the criminal history record |
30 | information on file for that employee. |
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1 | (iii) If the facility cannot certify both conditions |
2 | under subparagraph (ii), it shall require the employee to |
3 | obtain a new criminal history record pursuant to section |
4 | 502 before determining the employee's compliance with |
5 | sections 502 and 503. |
6 | (4) An employee who has obtained the information |
7 | required under section 502 or 503 may transfer to another |
8 | facility established and supervised by the same owner and is |
9 | not required to obtain additional reports before making the |
10 | transfer. |
11 | Section 10. The Secretary of Aging shall coordinate a |
12 | comparison study on the impact of utilizing the Pennsylvania |
13 | State Police criminal background check system and the Federal |
14 | Bureau of Investigation background check system pursuant to |
15 | Chapter 5 of the act. The purpose of the study shall be to |
16 | assess the feasibility of changing the current procedure to |
17 | require the Federal Bureau of Investigation check exclusively |
18 | for all applicants and employees or to continue the current |
19 | procedure of utilizing both systems, with the Pennsylvania State |
20 | Police check being the baseline system. Such study shall |
21 | include: a detailed review of the scope of the information |
22 | obtained through the use of each system; the rate of accuracy of |
23 | each system; the efficiency in terms of the turnaround time |
24 | associated with each system; the step-by-step process involved |
25 | in the completion of the checks required in each system; the |
26 | estimated fiscal impact to the Department of Aging and to |
27 | facilities associated with each system; and current information |
28 | regarding any advancements that have occurred with the |
29 | technology involving criminal background checks as well as any |
30 | changes that have occurred in the legal framework governing |
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1 | background checks. No later than one year from the effective |
2 | date of this section, the Secretary of Aging shall report to the |
3 | Aging and Youth Committee of the Senate and the Aging and Older |
4 | Adult Services Committee of the House of Representatives the |
5 | results of the study. |
6 | Section 11. The provisions of this act are severable. If any |
7 | provision of this act or its application to any person or |
8 | circumstance is held invalid, the invalidity shall not affect |
9 | other provisions or applications of this act which can be given |
10 | effect without the invalid provision or application. |
11 | Section 12. This act shall take effect in 180 days. |
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