THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY DeLUCA, BEYER, BRENNAN, CALTAGIRONE, CREIGHTON, FRANKEL, GINGRICH, SIPTROTH, K. SMITH, SOLOBAY, THOMAS, VULAKOVICH AND WALKO, FEBRUARY 27, 2009

REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES, FEBRUARY 27, 2009  

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," further providing for legislative policy;

further defining "employee"; further providing for

involuntary intervention by emergency court order, for

grounds for denying employment and for applicability relating

to criminal history for employees.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 102 of the act of November 6, 1987 (P.L.

381, No.79), known as the Older Adults Protective Services Act,

renumbered December 18, 1996 (P.L.1125, No.169), is amended to

read:

Section 102.  Legislative policy.

It is declared the policy of the Commonwealth of Pennsylvania

that older adults who lack the capacity to protect themselves

and are at imminent risk of abuse, neglect, exploitation or

abandonment shall have access to and be provided with services

necessary to protect their health, safety and welfare. It is not

the purpose of this act to place restrictions upon the personal

liberty of incapacitated older adults, but this act should be

liberally construed to assure the availability of protective

services to all older adults in need of them. Such services

shall safeguard the rights of incapacitated older adults while

protecting them from abuse, neglect, exploitation and

abandonment. It is the intent of the General Assembly to provide

for the detection and reduction, correction or elimination of

abuse, neglect, exploitation and abandonment, and to establish a

program of protective services for older adults in need of them.

It is further declared the policy of the Commonwealth that

the commission of any offense that constitutes serious physical

harm, a threat of serious physical harm or conduct which

evidences a reckless disregard for the vulnerability of care-

dependent populations, legitimately warrants a lifetime ban on

employment in facilities covered under this act. Further, for

facilities covered under this act, it is the policy of the

Commonwealth that the commission of any offenses related to

misappropriation or misuse of property or convictions which

involved inappropriate or irresponsible behavior legitimately

warrants a ban on employment for a period of ten years

immediately preceding the date of the report, not including any

time spent in incarceration.

Section 2.  The definition of "employee" in section 103 of

the act, amended December 18, 1996 (P.L.1125, No.169), is

amended to read:

Section 103.  Definitions.

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:

* * *

"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.] An individual who has direct

contact with recipients or unsupervised access to their living

quarters and is either employed by a facility or a contract

employee. 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.

* * *

Section 3.  Section 307(a) of the act, amended December 18,

1996 (P.L.1125, No.169), is amended to read:

Section 307.  Involuntary intervention by emergency court order.

(a)  Emergency petition.--[Where there was clear and

convincing evidence that if protective services are not

provided, the person to be protected is at imminent risk of

death or serious physical harm, the agency may petition the

court for an emergency order to provide the necessary services.]

An agency may petition a court of common pleas for an emergency

order to provide protective services to an older adult who is at

imminent risk of death or serious physical harm. The court of

common pleas shall grant the agency's petition if it finds, by a

preponderance of the evidence, that if protective services are

not provided, the older adult is at imminent risk of death or

serious physical harm. The courts of common pleas of each

judicial district shall ensure that a judge or district justice

is available on a 24-hour-a-day, 365-day-a-year basis to accept

and decide on petitions for an emergency court order under this

section whenever the agency determines that a delay until normal

court hours would significantly increase the danger the older

adult faces.

* * *

Section 4.  Section 503(a) of the act, amended June 9, 1997

(P.L.160, No.13), is amended and the section is amended by

adding subsections to read:

Section 503.  Grounds for denying employment.

[(a)  General rule.--In no case shall a facility hire an

applicant or retain an employee required to submit information

pursuant to section 502(a) if the applicant's or employee's

criminal history record information indicates the applicant or

employee has been convicted of any of the following offenses:

(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).

Section 2702 (relating to aggravated assault).

Section 2901 (relating to kidnapping).

Section 2902 (relating to unlawful restraint).

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual

assault).

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 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).

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).

(3)  A Federal or out-of-State offense similar in nature

to those crimes listed in paragraphs (1) and (2).]

(a.1)  Lifetime bans.--In no case shall a facility hire an

applicant required to submit information pursuant to section

502(a) or retain an employee required to submit information

pursuant to section 508, if the applicant's or employee's

criminal history record information indicates the applicant or

employee has been convicted of any of the following offenses:

(1)  An offense under one of the following provisions of

18 Pa.C.S. (relating to crimes and offenses) which is graded

as a felony:

Chapter 25 (relating to criminal homicide).

Section 2702 (relating to aggravated assault).

Section 2709 (relating to harassment).

Section 2709.1 (relating to stalking).

Section 2713 (relating to neglect of care-dependent

person).

Section 2901 (relating to kidnapping).

Section 3121 (relating to rape).

Section 3123 (relating to involuntary deviate sexual

intercourse).

Section 3124.1 (relating to sexual assault).

Section 3125 (relating to aggravated indecent

assault).

Section 3301 (relating to arson and related

offenses).

Section 3701 (relating to robbery).

Section 4304 (relating to endangering welfare of

children).

Section 6312 (relating to sexual abuse of children).

(2)  An offense under one of the following provisions of

18 Pa.C.S. which is graded as a misdemeanor:

Section 2713 (relating to neglect of care-dependent

person).

Section 3126 (relating to indecent assault).

(3)  A Federal or out-of-State offense similar in nature

to any offense listed in paragraph (1) or (2).

(a.2)  Ten-year ban.--In no case may a facility hire an

applicant required to submit information pursuant to section

502(a) or retain an employee required to submit information

pursuant to section 508 if the applicant's or employee's

criminal history record information indicates the applicant or

employee has been convicted, within ten years immediately

preceding the date of the report, not including any time spent

in incarceration, of any of the following offenses:

(1)  An offense graded 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 of the following provisions of

18 Pa.C.S. (relating to crimes and offenses) which is graded

as a felony:

Section 3122.1 (relating to statutory sexual

assault).

Section 3502 (relating to burglary).

Section 3921 (relating to theft by unlawful taking or

disposition).

Section 3922 (relating to theft by deception).

Section 3923 (relating to theft by extortion).

Section 3924 (relating to theft of property lost,

mislaid, or delivered by mistake).

Section 3925 (relating to receiving stolen property).

Section 3926 (relating to theft of services).

Section 3927 (relating to theft by failure to make

required disposition of funds received).

Section 3929 (relating to retail theft), if there are

two or more convictions thereunder.

Section 3934 (relating to theft from a motor

vehicle).

Section 4101 (relating to forgery).

Section 4952 (relating to intimidation of witnesses

or victims).

Section 4953 (relating to retaliation against

witness, victim or party).

Section 5902 (relating to prostitution and related

offenses).

Section 6301(a)(1) (relating to corruption of

minors).

(3)  An offense under one of the following provisions of

18 Pa.C.S. (relating to crimes and offenses) which is graded

as a misdemeanor:

Section 2504 (relating to involuntary manslaughter).

Section 2902 (relating to unlawful restraint).

Section 3127 (relating to indecent exposure).

Section 3921 (relating to theft by unlawful taking or

disposition).

Section 3922 (relating to theft by deception).

Section 3923 (relating to theft by extortion).

Section 3927 (relating to theft by failure to make

required disposition of funds received).

Section 3929 (relating to retail theft), if there are

two or more convictions thereunder.

Section 4101 (relating to forgery).

Section 4114 (relating to securing execution of

documents by deception).

Section 4302 (relating to incest).

Section 4303 (relating to concealing death of child).

Section 4305 (relating to dealing in infant

children).

(4)  A Federal or out-of-State offense similar to any

offense listed in paragraph (1), (2) or (3).

* * *

(d)  Right of review.--An applicant or employee may review,

challenge and appeal the completeness or accuracy of that

applicant's or employee's criminal history report under 18

Pa.C.S. Ch. 91 (relating to criminal history record

information). An applicant or employee may challenge the

conviction comparison interpretation 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).

Section 5.  Section 508 of the act, amended June 9, 1997

(P.L.160, No.13), is amended to read:

Section 508.  Applicability.

This chapter shall apply as follows:

(1)  An individual who, on the effective date of this

chapter, has continuously for a period of one year been an

employee of the same facility shall be exempt from [section

502] sections 502 and 503 as a condition of continued

employment.

(2)  If an employee is not exempt under paragraph (1),

the employee and the facility shall comply with [section 502]

sections 502 and 503 within one year of the effective date of

this chapter.

(3)  If an employee who is exempt under paragraph (1)

seeks employment with a different facility, the employee and

the facility shall comply with [section 502] sections 502 and

503.

(4)  An employee who has obtained the information

required under section 502 or 503 may transfer to another

facility established and supervised by the same owner and is

not required to obtain additional reports before making the

transfer.

Section 6.  The provisions of this act are severable. If any

provision of this act or its application to any person or

circumstance is held invalid, the invalidity shall not affect

other provisions or applications of this act which can be given

effect without the invalid provision or application.

Section 7.  This act shall take effect as follows:

(1)  The amendment of section 508(2) of the act shall

take effect in 120 days.

(2)  This section shall take effect immediately.

(3)  The remainder of this act shall take effect in 60

days.