PRINTER'S NO. 960
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
119
Session of
2015
INTRODUCED BY HAYWOOD, BREWSTER, TEPLITZ, FONTANA, TARTAGLIONE,
COSTA, SCHWANK AND YUDICHAK, MAY 22, 2015
REFERRED TO AGING AND YOUTH, MAY 22, 2015
AN ACT
Amending the act of November 6, 1987 (P.L.381, No.79), entitled
"An act relating to the protection of the abused, neglected,
exploited or abandoned elderly; establishing a uniform
Statewide reporting and investigative system for suspected
abuse, neglect, exploitation or abandonment of the elderly;
providing protective services; providing for funding; and
making repeals," in preliminary provisions, further providing
for definitions; and, in criminal history for employees,
repealing provisions relating to definitions, further
providing for information relating to prospective facility
personnel, for grounds for denying employment and for
provisional employees for limited periods; providing for
registry of home care workers; and making editorial changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definitions of "abuse," "administrator,"
"employee," "exploitation," "facility" and "older adult in need
of protective services" in section 103 of the act of November 6,
1987 (P.L.381, No.79), known as the Older Adults Protective
Services Act, renumbered and amended December 18, 1996
(P.L.1125, No.169), is amended and the section is amended by
adding definitions to read:
Section 103. Definitions.
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The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
* * *
"Abuse." [The occurrence of one or more of the following
acts:
(1) The infliction of injury, unreasonable confinement,
intimidation or punishment with resulting physical harm, pain
or mental anguish.
(2) The willful deprivation by a caretaker of goods or
services which are necessary to maintain physical or mental
health.
(3) Sexual harassment, rape or abuse, as defined in the
act of October 7, 1976 (P.L.1090, No.218), known as the
Protection From Abuse Act.
No older adult shall be found to be abused solely on the grounds
of environmental factors which are beyond the control of the
older adult or the caretaker, such as inadequate housing,
furnishings, income, clothing or medical care.] Intentionally,
willfully, knowingly or recklessly causing or attempting to
cause any of the following:
(1) Infliction of injury or unreasonable confinement
resulting in physical harm or pain.
(2) Intimidation or punishment resulting in mental
anguish.
(3) The deprivation by a caretaker of goods or services
which are necessary to maintain physical or mental health.
(4) Sexual abuse including:
(i) Rape.
(ii) Involuntary deviate sexual intercourse.
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(iii) Sexual assault.
(iv) Aggravated indecent assault.
(v) Indecent assault.
(vi) Incest.
(vii) Statutory sexual assault.
(5) Sexual harassment including:
(i) Unwelcome sexual advances.
(ii) Requests for sexual favors.
(iii) Other unwelcome verbal or physical conduct of
a sexual nature.
"Administrator." The person responsible for the
administration of a facility. The term includes a person
responsible for employment decisions or an independent
contractor responsible for administration of a facility.
* * *
"Agent." A person authorized to act on behalf of an older
adult or care-dependent individual including a person acting
under a power of attorney duly executed in accordance with 20
Pa.C.S. Ch. 56 (relating to powers of attorney).
"Applicant." An individual seeking employment or engagement
as an administrator, employee or a caretaker of a facility.
* * *
"Employee." An individual who [is employed by a facility.
The term includes contract employees who have direct contact
with residents or unsupervised access to their personal living
quarters. The term includes any person who is employed or who
enters into a contractual relationship to provide care to a
care-dependent individual for monetary consideration in the
individual's place of residence.] has unsupervised access to an
older adult or care-dependent individual or the individual's
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living quarters, resources or personal records who:
(1) is employed by the facility; or
(2) enters into a contractual relationship with a
facility to provide care to an older adult or care-dependent
individual.
"Exploitation." An act or course of conduct by a caretaker,
agent, guardian or other person against an older adult or care-
dependent individual or an older adult's or care-dependent
individual's resources or personal records, without the informed
consent or authorization of the older adult or care-dependent
individual or with consent or authorization obtained through
misrepresentation, coercion or threats of force, [that results
in] resulting in monetary, personal or other benefit, gain or
profit [for the perpetrator or monetary or personal loss to the
older adult.] to the caretaker, agent, guardian or person, or
monetary or personal loss to the older adult or care-dependent
individual, including an act or course of conduct by an agent or
guardian that violates the agent's or guardian's duties to the
older adult or care-dependent individual.
"Facility." Any of the following:
(1) A domiciliary care home as defined in section 2202-A
of the act of April 9, 1929 (P.L.177, No.175), known as The
Administrative Code of 1929.
(2) [A home health care agency.
(3) A long-term care nursing facility as defined in
section 802.1 of the act of July 19, 1979 (P.L.130, No.48),
known as the Health Care Facilities Act.
(4) An older adult daily living center as defined in
section 2 of the act of July 11, 1990 (P.L.499, No.118),
known as the Older Adult Daily Living Centers Licensing Act.
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(5) A personal care home as defined in section 1001 of
the act of June 13, 1967 (P.L.31, No.21), known as the Public
Welfare Code.] The following entities as defined in section
802.1 of the act of July 19, 1979 (P.L.130, No.48), known as
the Health Care Facilities Act:
(i) A home health care agency.
(ii) A long-term care nursing facility.
(iii) A hospice.
(iv) A home care agency.
(v) A home care registry.
(3) An older adult daily living center as defined in
section 2 of the act of July 11, 1990 (P.L.499, No.118),
known as the Older Adult Daily Living Centers Licensing Act.
(4) A personal care home as defined in section 1001 of
the act of June 13, 1967 (P.L.31, No.21), known as the Public
Welfare Code:
(5) An assisted living residence as defined in section
1001 of the Public Welfare Code.
(6) A provider of Programs of All-Inclusive Care for the
Elderly as authorized under the Balanced Budget Act of 1997
(Public Law 105-33, 111 Stat. 369) and licensed under the
Older Adult Daily Living Centers Licensing Act.
(7) Any other public or private organization or entity,
or part of an organization or entity, that uses public funds
and is paid, in part, to provide care to older adults or
care-dependent individuals.
The term does not include an entity licensed by the Department
of Health or the Department of Drug and Alcohol Programs to
provide drug and alcohol addiction treatment services or an
entity licensed by the Department of Human Services ' Office of
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Developmental Programs.
"Guardian." An individual appointed by a court of competent
jurisdiction to make personal, financial or property decisions
for another who has been adjudicated incapacitated.
* * *
"Older adult in need of protective services." An
[incapacitated] older adult who is unable to perform or obtain
services that are necessary to maintain physical or mental
health, for whom there is no responsible caretaker and who is at
[imminent] risk of danger to his person or property.
* * *
"Registry." The publicly accessible Internet website
established and maintained by the department under Chapter 6.
* * *
"State police." The Pennsylvania State Police.
Section 2. Section 501 of the act is repealed:
[Section 501. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Applicant." An individual who submits an application, which
is being considered for employment, to a facility.
"State Police." The Pennsylvania State Police.]
Section 3. Section 502 of the act, amended October 24, 2012
(P.L.1412, No.175), is amended to read:
Section 502. Information relating to prospective facility
personnel.
(a) General rule.--A facility shall require all applicants
to submit with their applications, and shall require all
employees, administrators and any operators who have or may have
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direct contact with a recipient to submit, the following
information obtained within the preceding one-year period:
(1) [Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
history record information), a] A report of criminal history
record information from the State Police or a statement from
the State Police that [their] the State Police central
repository contains no such information relating to that
person[. The criminal history record information shall be
limited to that which is disseminated pursuant to 18 Pa.C.S.
§ 9121(b)(2) (relating to general regulations).] under 18
Pa.C.S. Ch. 91 (relating to criminal history information).
The provisions of 18 Pa.C.S. § 9121(b)(2) (relating to
general regulations) shall not apply to criminal history
information or other criminal history record information
requested or received under this section.
(2) [Where] If the applicant [is not and for the two
years immediately preceding the date of application has not],
employee, administrator or operator has been a resident of
this Commonwealth[, administration] for less than the
previous two years, the facility shall require the
[applicant] person to submit [with the application for
employment] a report of Federal criminal history record
information pursuant to the Federal Bureau of Investigation's
appropriation under the Departments of State, Justice, and
Commerce, the Judiciary, and Related Agencies Appropriation
Act, 1973 (Public Law 92-544, 86 Stat. 1109). [The department
shall be the intermediary for the purposes of this
paragraph.] For the purposes of this paragraph, the
[applicant] person shall submit a full set of fingerprints to
the State Police in a manner prescribed by the department.
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The [Commonwealth] State Police or its authorized agent shall
submit the fingerprints to the Federal Bureau of
Investigation. [for a national criminal history record check.
The information obtained from the criminal record check shall
be used by the department to determine the applicant's
eligibility. The determination shall be submitted to the
administrator by the applicant prior to commencing
employment. The administrator shall insure confidentiality of
the information. The provisions of 18 Pa.C.S. § 9121(b)(2)
shall not apply if the request for a report of Federal
criminal history record information is made pursuant to this
section.
(b) (Reserved).]
(3) Criminal history information shall be used by the
department to determine the person's eligibility for
employment with a facility or engagement as an administrator
or operator of a facility who may have direct contact with a
recipient. The department's findings shall be provided to the
facility and the person prior to commencement of employment
or engagement as an administrator or operator. The facility
shall ensure confidentiality of the information.
(4) The department may require the person to submit
additional information from a court or other authority within
the time frame designated by the department. Failure to
provide the requested information within the time frame
designated by the department may result in ineligibility.
Section 4. Section 503 of the act, amended June 9, 1997
(P.L.160, No.13), is amended to read:
Section 503. [Grounds for denying employment] Provisions
related to employment or engagement.
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(a) General rule.--In no case shall a facility hire or
engage an applicant, administrator or operator who may have
direct contact with a recipient or retain an employee [required
to submit information pursuant to section 502(a)], administrator
or operator who has or may have direct contact with a recipient
if the [applicant's or employee's] person's criminal history
record information indicates the [applicant or employee] person
has been convicted of [any of the following offenses:] an
offense or attempt, solicitation or conspiracy to commit an
offense under any of the following provisions of 18 Pa.C.S.
(relating to crimes and offenses) or a similar offense under
Federal law or the law of any other jurisdiction:
[(1) An offense designated as a felony under the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act.
(2) An offense under one or more of the following
provisions of 18 Pa.C.S. (relating to crimes and offenses):]
Chapter 25 (relating to criminal homicide).
Chapter 26 (relating to crimes against unborn child).
Section 2702 (relating to aggravated assault).
Section 2713 (relating to neglect of care-dependent
person).
Section 2716 (relating to weapons of mass
destruction).
Section 2717 (relating to terrorism).
Section 2901 (relating to kidnapping).
[Section 2902 (relating to unlawful restraint).]
Section 3121 (relating to rape).
Section 3122.1 (relating to statutory sexual
assault).
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Section 3123 (relating to involuntary deviate sexual
intercourse).
Section 3124.1 (relating to sexual assault).
Section 3125 (relating to aggravated indecent
assault).
Section 3126 (relating to indecent assault).
[Section 3127 (relating to indecent exposure).
Section 3301 (relating to arson and related
offenses).
Section 3502 (relating to burglary).
Section 3701 (relating to robbery).
A felony offense under Chapter 39 (relating to theft
and related offenses) or two or more misdemeanors under
Chapter 39.
Section 4101 (relating to forgery).
Section 4114 (relating to securing execution of
documents by deception).]
Section 3212 (relating to infanticide).
Section 4117 (relating to insurance fraud).
[Section 4302 (relating to incest).]
Section 4303 (relating to concealing death of child).
Section 4304 (relating to endangering welfare of
children).
Section 4305 (relating to dealing in infant
children).
[Section 4952 (relating to intimidation of witnesses
or victims).
Section 4953 (relating to retaliation against witness
or victim).]
Section 5510 (relating to abuse of corpse).
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[A felony offense under section 5902(b) (relating to
prostitution and related offenses).
Section 5903(c) or (d) (relating to obscene and other
sexual materials and performances).
Section 6301 (relating to corruption of minors).]
Section 6312 (relating to sexual abuse of children).
Section 6319 (relating to solicitation of minors to
traffic drugs).
[(3) A Federal or out-of-State offense similar in nature
to those crimes listed in paragraphs (1) and (2).]
(b) Ten year prohibition.--A facility shall not hire or
engage an applicant, administrator or operator who may have
direct contact with a recipient or retain an employee,
administrator or operator who has or may have direct contact
with a recipient if the person's criminal history record
information indicates the person has been convicted of any of
the following offenses within the past 10 years:
(1) Any of the following offenses under 18 Pa.C.S.:
Section 2902 (relating to unlawful restraint).
Section 2910 (relating to luring a child into motor
vehicle or structure).
Section 3127 (relating to indecent exposure).
Section 3301 (relating to arson and related
offenses).
Section 3502 (relating to burglary).
Section 3701 (relating to robbery).
Section 4101 (relating to forgery).
Section 4106 (relating to access device fraud).
Section 4114 (relating to securing execution of
documents by deception).
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Section 4120 (relating to identity theft).
Section 4302 (relating to incest).
Section 4952 (relating to intimidation of witnesses
or victims).
Section 4953 (relating to retaliation against
witness, victim or party).
A felony offense under Chapter 39 (relating to theft
and related offenses).
Two or more misdemeanors under Chapter 39 arising out
of separate occurrences.
A felony offense under section 5902(b) (relating to
prostitution and related offenses).
(2) An offense designated as a felony under the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act.
[(c) Immunity.--An administrator or a facility shall not be
held civilly liable for any action directly related to good
faith compliance with this section.]
(d) Restoration of eligibility.--A person subject to a ban
under subsections (a) or (b) may be hired or engaged by a
facility if the person can demonstrate a minimum five-year
aggregate work history in care-dependent services without
criminal conviction. Care-dependent services include health
care, child care, mental health care, care of older adults or of
persons with intellectual disabilities or physical disabilities.
(e) Right to appeal.--A person may challenge the decision of
the department involving the Federal criminal history record by
filing an appeal with the department in accordance with 2
Pa.C.S. (relating to administrative law and procedure).
(f) Ongoing disclosure.--Employees, administrators and
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operators who have direct contact with recipients shall file a
written disclosure annually with the facility indicating whether
or not they have been convicted of any of the offenses
enumerated in subsections (a) or (b). If an employee,
administrator or operator who has a direct contact with
recipients is convicted of one of the offenses enumerated in
subsections (a) or (b), the employee, administrator or operator
shall file the disclosure within 72 hours following the
conviction. The following shall apply:
(1) The disclosure shall be made on a form developed by
the department and posted for downloading on the department's
publicly accessible Internet website and published in the
Pennsylvania Bulletin.
(2) The disclosure form shall contain a list of the
offenses enumerated in subsections (a) and (b) and a space
for the person completing the form to indicate whether or not
the person has been convicted of the offense.
(3) Persons required to submit the disclosure form under
this subsection shall be informed that failure to accurately
report any conviction for an offense enumerated under
subsections (a) or (b) may be subject to criminal prosecution
under 18 Pa.C.S. § 4904 (relating to unsworn falsification to
authorities).
(4) If a person required to submit a disclosure form
under this section refuses to do so, the facility shall
require the person to immediately submit a current report of
criminal history record information required under section
502.
(5) The following penalties shall apply:
(i) A person who discloses a conviction for an
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offense enumerated under subsections (a) or (b) shall be
terminated.
(ii) A person who willfully fails to disclose a
conviction for an offense enumerated under subsections
(a) or (b) shall be terminated and may be subject to
criminal prosecution under 18 Pa.C.S. § 4904.
Section 5. Sections 504 and 506 of the act, added December
18, 1996 (P.L.1125, No.169), are amended to read:
Section 504. Regulations.
The department, in consultation with the Department of Health
and the Department of [Public Welfare] Human Services, shall
promulgate the regulations necessary to carry out this chapter.
Section 506. Provisional employees for limited periods.
(a) Conditions.--Notwithstanding section 502,
[administrators] facilities may employ applicants on a
provisional basis for a single period not to exceed 30 days [or,
for applicants under section 502(a)(2), a period of 90 days,] if
all of the following conditions are met:
(1) The applicant has applied for [the information] a
criminal history report required under section 502 and [the
applicant] provides a copy of the [appropriate] completed
request forms to the [administrator] facility.
(2) The [administrator] facility has no knowledge [of
information pertaining to] about the applicant which would
disqualify [him] the applicant from employment [pursuant to
section 503, subject to] under 18 Pa.C.S. § 4911 (relating to
tampering with public records or information).
(3) The applicant swears or affirms in writing that [he]
the applicant is not disqualified from employment under
section 503.
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(4) If the information obtained under section 502
reveals that the applicant is disqualified from employment
under section 503, the applicant shall be immediately
dismissed by the [administrator] facility.
[(5) The department shall develop guidelines regarding
the supervision of applicants. For a home health care agency,
supervision shall include random direct supervision by an
employee who has been employed by the facility for a period
of one year.]
(b) Guidelines.--The department shall develop guidelines
regarding the supervision of applicants subject to this section.
Supervision shall include random direct supervision by an
employee who has been employed by the facility for a period of
at least one year.
Section 6. The act is amended by adding a chapter to read:
CHAPTER 6
HOME CARE WORKERS
Section 601. Registry of home care workers.
(a) Registry.--The department shall establish a publicly
accessible Internet website registry that the public may use to
search all home care workers in this Commonwealth who have
registered with and have been approved by the department to be
listed on the registry.
(b) Requirement.--An individual seeking approval of the
department for listing on the registry shall submit to the
department the same information required to be submitted by
applicants, employees, administrators and operators under
section 502, together with any other information required by the
department, on a form and in a manner prescribed by the
department. The following shall apply:
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(1) Only individuals otherwise authorized under Chapter
5 for employment as a caregiver in a facility or as a home
care worker may be listed on the registry.
(2) Requesters and those listed on the registry shall be
subject to the provisions of section 503.
(c) Fees.--The department may charge an individual to be
listed on the registry a fee of up to $50 to cover the expense
of providing the information on the registry. The following
shall apply:
(1) The department shall post the fee on its publicly
accessible Internet website and have it printed on the form
to be completed by the requester.
(2) The department shall not change the fee more than
once in a calendar year.
(3) The department may waive all or a portion of the fee
in order to encourage participation in the registry.
(d) Accessibility.--The registry shall be publicly
accessible by individuals and facilities seeking to employ home
care workers. The registry shall be organized by the department
to allow consumers and facilities to search by the following:
(1) Geography.
(2) Availability for employment.
(3) Training.
(4) Education.
(5) Experience.
(6) Access to transportation.
(7) Any other factor determined by the department.
Section 7. Sections 705(b)(2) and 708 of the act, added June
9, 1997 (P.L.160, No.13), are amended to read:
Section 705. Confidentiality of and access to confidential
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reports.
* * *
(b) Exceptions.--A report under this chapter shall be made
available to all of the following:
* * *
(2) An employee of the Department of Health or the
Department of [Public Welfare] Human Services in the course
of official duties.
* * *
Section 708. Regulations.
The Department of Aging, the Department of Health and the
Department of [Public Welfare] Human Services shall promulgate
the regulations necessary to carry out this chapter.
Section 8. This act shall take effect in 60 days.
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