PRINTER'S NO. 1205
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
899
Session of
2017
INTRODUCED BY MENSCH, BROWNE, BAKER, VULAKOVICH, RAFFERTY,
VOGEL, WARD, KILLION, COSTA, HAYWOOD, YUDICHAK, BREWSTER AND
BOSCOLA, SEPTEMBER 26, 2017
REFERRED TO AGING AND YOUTH, SEPTEMBER 26, 2017
AN ACT
Amending Title 23 (Domestic Relations) of the Pennsylvania
Consolidated Statutes, providing for older adult protective
services and imposing penalties; and making a related repeal.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 23 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 69
OLDER ADULT PROTECTIVE SERVICES
Subchapter
A. Preliminary Provisions
B. Duties of Department
C. Duties of Area Agencies on Aging
D. Protective Services
E. Reporting
F. Financial Institutions and Fiduciaries
G. Criminal History
H. Remedies
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I. Administration
SUBCHAPTER A
PRELIMINARY PROVISIONS
Sec.
6901. Scope of chapter.
6902. Definitions.
6903. Intent.
§ 6901. Scope of chapter.
This chapter relates to older adult protective services.
§ 6902. 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:
"Abandonment." The desertion of an older adult by a
caretaker.
"Abuse." Intentionally, willfully, knowingly or recklessly
causing or attempting to cause:
(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 rape, involuntary deviate
sexual intercourse, sexual assault, aggravated indecent
assault, indecent assault or incest.
(5) Sexual harassment, including unwelcome sexual
advances, requests for sexual favors and other unwelcome
verbal or physical conduct of a sexual nature.
"Administrator." The person responsible for the management
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of a facility. The term includes a person responsible for
employment decisions or an independent contractor responsible
for administration of a facility.
"Applicant." An individual seeking employment or engagement
as an employee.
"Area agency on aging." The single local agency designated
by the department within each planning and service area to
administer the delivery of protective services.
"Assessment." The evaluation of an older adult's social,
physical and psychological well-being, along with a description
of the older adult's current resources and needs.
"Care." Services provided to meet an older adult's need for
personal care or health care which require interaction with the
older adult.
"Care-dependent individual." An adult who, due to physical
or cognitive disability or impairment, requires assistance to
meet needs for food, shelter, clothing, personal care or health
care.
"Caretaker." A person that has assumed the responsibility
for the provision of care needed to maintain the physical or
mental health of an older adult. This responsibility may arise
voluntarily, by contract, by receipt of payment for care, as a
result of familial relationship, or by order of a court of
competent jurisdiction.
"Case record." The complete record of the information
received and the actions taken by the area agency on aging on
each report of need.
"Consent." Authorization or approval, which, when feasible,
shall be obtained in writing.
"Department." The Department of Aging of the Commonwealth.
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"Direct care worker." The individual employed by a home care
agency or referred by a home care registry to provide home care
services to a customer.
"Employee." An individual who:
(1) either:
(i) is employed by a facility; or
(ii) enters into a contractual relationship with a
facility to provide care to an older adult; and
(2) has unsupervised access to the older adult or the
older adult's living quarters, resources or personal records,
including employees of affiliated corporate entities.
"Exploitation." An act or course of conduct by a caretaker
or other person against an older adult or an older adult's
resources, which, through misrepresentation, coercion or threats
of force, results in monetary, personal or other benefit, gain
or profit for that caretaker or person, or monetary or personal
loss to the older adult.
"Facility."
(1) Any of the following:
(i) Domiciliary care 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.
(ii) An assisted living residence as defined in
section 1001 of the act of June 13, 1967 (P.L.31, No.21),
known as the Human Services Code.
(iii) A personal care home as defined in section
1001 of the Human Services Code.
(iv) 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:
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(A) A home care agency.
(B) A home care registry.
(C) A home health care agency.
(D) A hospice.
(E) A long-term care nursing facility.
(v) 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.
(vi) A PACE provider as defined in section 1894 of
the Social Security Act (49 Stat. 620, 42 U.S.C. §
1395eee) and licensed under the Older Adult Daily Living
Centers Licensing Act.
(vii) 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
care-dependent individuals.
(2) The term does not include an entity licensed by the
Department of Drug and Alcohol Programs or the Department of
Health to provide drug and alcohol addiction treatment
services or an entity licensed by the Department of Human
Services Office of Developmental Programs.
"Fiduciary." A guardian, custodian, trustee, agent, personal
representative or other person authorized or required to act on
behalf of an older adult.
"Financial exploitation." Exploitation involving the illegal
taking, misuse or concealment of money, property or assets of an
older adult in the custody or control of a financial
institution.
"Financial institution." Any of the following:
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(1) An insured bank as defined in section 3(h) of the
Federal Deposit Insurance Act (64 Stat. 873, 12 U.S.C. §
1813(h)).
(2) A commercial bank or trust company.
(3) A private banker.
(4) An agency or branch of a foreign bank in the United
States.
(5) A credit union.
(6) A thrift institution.
(7) A broker or dealer registered with the Securities
and Exchange Commission under the Securities Exchange Act of
1934 (48 Stat. 881, 15 U.S.C. § 78A et seq.).
(8) A broker or dealer in securities or commodities.
(9) An investment banker or investment company.
(10) A currency exchange.
(11) An issuer, redeemer or cashier of travelers'
checks, checks, money orders or similar instruments.
(12) An operator of a credit card system.
(13) A loan or finance company.
(14) A licensed sender of money or any other person who
engages as a business in the transmission of money, including
any person who engages as a business in an informal money
transfer system or any network of people who engage as a
business in facilitating the transfer of money domestically
or internationally outside of the conventional financial
institution system.
(15) Any business or agency which engages in any
activity which the department determines, by regulation, to
be an activity which is similar to, related to or a
substitute for any activity conducted by a business described
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in paragraphs (1), (2), (3), (4), (5), (6), (7), (8), (9),
(10), (11), (12), (13) and (14).
"Health care provider." A licensed hospital or health care
facility or person who is licensed, certified or otherwise
regulated to provide health care services under the laws of this
Commonwealth, including a physician, podiatrist, optometrist,
psychologist, physical therapist, certified nurse practitioner,
registered nurse, nurse midwife, physician's assistant,
chiropractor, dentist, pharmacist or an individual accredited or
certified to provide behavioral health services.
"Intimidation." An act or omission by a person toward
another person that obstructs, impedes, impairs, prevents or
interferes with the administration of this chapter or any other
law intended to protect older adults from mistreatment.
"Law enforcement official." Any of the following:
(1) A police officer of a municipality.
(2) A peace officer, as defined in 18 Pa.C.S. § 501
(relating to definitions).
(3) A district attorney.
(4) A Pennsylvania State Police officer.
(5) The Attorney General.
(6) An agent of the Department of Justice and other
Federal law enforcement agencies, who possesses law
enforcement powers and duties.
(7) Law enforcement authorities in other states.
"Mandatory reporter." Any of the following:
(1) Administrators and employees of a facility.
(2) Health care providers.
(3) A law enforcement official.
"Neglect." The failure to provide for oneself or the failure
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of a caretaker to provide goods or services essential to avoid a
clear and serious threat to physical or mental health.
"Older adult." An individual residing within this
Commonwealth who is 60 years of age or older.
"Older adult in need of protective services." An 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 risk of danger to self or
property.
"Protective services." Those activities, resources and
supports provided to older adults under this chapter to detect,
prevent, reduce or eliminate abuse, neglect, exploitation and
abandonment.
"Serious bodily injury." Injury which creates a substantial
risk of death or which causes serious disfigurement of a body
part or organ or protracted loss or impairment of the function
of a body member or organ.
"Service plan." As follows:
(1) A written plan developed by an area agency on aging
on the basis of a comprehensive assessment of an older adult
that describes identified needs and specific services
designed to support goal attainment, which includes regular
follow-up appointments and predetermined reassessment of
progress.
(2) As used in this definition, specific services
designed to support goal attainment may include homemaker
services, home-delivered meals, personal care, other in-home
services, emergency shelter or food, legal aid services and
transportation services.
(3) Service plans shall be cooperatively developed by
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area agency on aging staff, the older adult or the older
adult's legal representative, and other family members, if
appropriate.
(4) The service plan shall address special needs of
other members of the household unit if they affect the older
adult's need for protective services.
"Suspicious death." A death which is unexpected with
unexplained circumstances or cause.
§ 6903. Intent.
It is not the intent of this chapter to impose responsibility
on any individual if the responsibility would not otherwise
exist in law.
SUBCHAPTER B
DUTIES OF DEPARTMENT
Sec.
6910. Public education.
6911. Interdepartmental consultation.
6912. Training required.
6913. Confidentiality.
6914. Schedule.
6915. Employee disclosure.
6916. Disclosure form.
6917. Disclosure reporting.
6918. Supervision.
§ 6910. Public education.
The department shall conduct an ongoing campaign designed to
inform and educate older adults, professionals and the general
public about the need for and the availability of protective
services under this chapter.
§ 6911. Interdepartmental consultation.
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The following apply:
(1) The department shall consult with other Commonwealth
agencies on the design and implementation of the ongoing
public awareness campaign.
(2) The department shall consider the concerns of area
agencies on aging on the design and implementation of the
ongoing public awareness campaign.
§ 6912. Training required.
(a) Standards.--The department shall establish minimum
standards of experience and training that protective services
providers receiving money from the department shall be required
to follow in the selection and assignment of employees for the
provision of protective services.
(b) Mandatory reporters.--The department shall establish a
training program for mandatory reporters to inform employees
about the requirement to report under this chapter.
(c) Financial exploitation prevention.--The department shall
develop and provide training programs for the personnel of area
agencies on aging regarding the identification and prevention of
financial exploitation of older adults and on procedures to
provide relief to older adults from financial exploitation.
(d) Model training program.--
(1) The department shall establish a model training
program for personnel of financial institutions regarding the
identification and prevention of financial exploitation of
older adults and on procedures to provide relief to older
adults from financial exploitation, including guidelines
regarding:
(i) when to report suspected financial exploitation;
(ii) to whom suspected financial exploitation should
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be reported;
(iii) information that should be included in a
report; and
(iv) applicable laws, rules and regulations that
must be followed while reporting suspected financial
exploitation.
(2) The department may adopt a national organization's
training program as its model training program so long as the
training is certified or accredited.
§ 6913. Confidentiality.
The department shall establish methods which shall be used by
an area agency on aging, its designees and its service providers
to ensure the privacy of older adults receiving services and the
confidentiality of all records.
§ 6914. Schedule.
The department shall establish a schedule for the submission
and approval of the plans associated with the development of
training provided in section 6912 (relating to training
required).
§ 6915. Employee disclosure.
The department shall develop a standardized form to be used
by facilities for the written reporting by administrators and
employees of any conviction for an offense enumerated under
section 6960(c) (relating to criminal history). The form shall
be published on the department's publicly accessible Internet
website and in the Pennsylvania Bulletin.
§ 6916. Disclosure form.
(a) Form.--The disclosure form shall contain a list of the
prohibited offenses under section 6960(c) (relating to criminal
history) and a space for the employee to indicate convictions.
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Administrators and employees who have not been convicted of any
enumerated offense shall respond "no conviction."
(b) Failure to report.--The disclosure form shall state that
administrators and employees who fail to accurately report any
conviction for an offense enumerated under section 6960(b) shall
subject the employee to criminal prosecution under 18 Pa.C.S. §
4904 (relating to unsworn falsification to authorities).
§ 6917. Disclosure reporting.
The department shall require the following reporting:
(1) Facilities shall require administrators and
employees to complete and submit the disclosure form under
section 6916 (relating to disclosure form) not later than 72
hours after a conviction.
(2) If an administrator or employee refuses to submit
the disclosure form, the facility shall immediately require
the administrator or employee to submit a current report of
criminal history record information as required under section
6960(a) (relating to criminal history).
§ 6918. Supervision.
The department shall develop guidelines regarding the
supervision of applicants. Supervision shall include random
direct supervision by an employee who has been employed by the
facility for a period of at least one year.
SUBCHAPTER C
DUTIES OF AREA AGENCIES ON AGING
Sec.
6920. Receipt of reports.
6921. Investigations.
6922. Investigations involving facilities.
6923. Investigations involving law enforcement officials.
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6924. Access to older adults.
6925. Access to records.
6926. Rights of older adults.
6927. Confidentiality standards required.
6928. Availability of protective services.
§ 6920. Receipt of reports.
The area agency on aging must be capable of electronically
receiving reports of older adults in need of protective services
at all times. This capability may include the use of a local
emergency response system or a crisis intervention agency, if
access can be made to a protective services caseworker in
appropriate emergency situations, as set forth in regulations
issued by the department. All reports received orally shall be
documented in a manner set forth by the department.
§ 6921. Investigations.
An area agency on aging shall investigate each report in
accordance with regulations issued by the department. The
investigation shall be initiated within 72 hours after the
receipt of the report and shall be carried out under regulations
issued by the department. The regulations shall provide for the
methods of conducting investigations and shall assure that steps
are taken to avoid any conflict of interest. Consent of the
older adult is not required in order to investigate reports of
abuse, neglect, exploitation or abandonment.
§ 6922. Investigations involving facilities.
If the report concerns a facility, the area agency on aging
shall notify the local ombudsman and the licensing agency.
Investigations concerning facilities shall be conducted under
procedures developed by the department in consultation with the
Commonwealth agency with oversight authority for the facility.
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The department and any other Commonwealth agency shall share
information with each other and with mandatory reporters,
fiduciaries and financial institutions as necessary to ensure
the health, safety and welfare of the older adult and to assist
financial institutions and fiduciaries in exercising the
financial institution's and fiduciaries' authority to prohibit
disbursement of money and transactions as provided by section
6952 (relating to authority to prohibit disbursement of money
and transactions). Facilities shall take reasonable steps to
protect older adults following receipt of a report of suspected
abuse, neglect, exploitation or abandonment involving an
employee, including a plan of supervision or suspension.
§ 6923. Investigations involving law enforcement officials.
The following shall apply:
(1) To the extent possible, law enforcement officials,
the area agency on aging and other mandatory reporters shall
coordinate respective investigations and shall advise each
other and provide applicable additional information on an
ongoing basis.
(2) Upon receiving a report of any of the following, the
area agency on aging shall immediately notify a law
enforcement official:
(i) Suspicious death.
(ii) Serious bodily injury.
(iii) Sexual abuse.
(iv) Financial exploitation.
(3) (i) Following a referral to a law enforcement
official, the area agency on aging shall contact a law
enforcement official to obtain information about actions
taken and the outcomes, including any decisions regarding
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criminal charges, and the law enforcement official shall
provide the information to the extent that the
information is available.
(ii) To the extent a law enforcement agency
exercises its discretion to not pursue, or to defer, a
criminal investigation or prosecution, the area agency on
aging may initiate civil proceedings to obtain a
protective order, seek injunctive relief or seek
compensation or restitution for damages from a person
that abuses, neglects, abandons or exploits an older
adult.
(iii) The area agency on aging shall report the
information under subparagraph (i) to the department in a
manner prescribed by the department.
§ 6924. Access to older adults.
The following apply:
(1) The area agency on aging shall have direct access to
older adults who have been reported to be in need of
protective services in order to:
(i) Investigate reports.
(ii) Assess needs of the older adult and develop a
service plan for addressing those needs.
(iii) Provide for the delivery of services by the
area agency on aging or other service provider as
provided for under the service plan.
(2) If the area agency on aging is denied access to an
older adult reported to be in need of protective services,
the area agency on aging may petition the court for an order
to require any of the following:
(i) Access to the older adult.
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(ii) A medical evaluation of the older adult.
(iii) A psychiatric evaluation of the older adult.
§ 6925. Access to records.
(a) Area agency on aging access.--The area agency on aging
shall, subject to the consent of the older adult, have access to
all records for the purposes of:
(1) Assessing an older adult's need for services.
(2) Planning and delivery of services.
(3) Investigating reports.
(b) Refusal.--The following apply:
(1) If an older adult refuses to provide consent, the
department or the area agency on aging may file a petition
with the court of common pleas in the county where the older
adult resides for an order compelling the production of
records. Upon the issuance of the order, the department or
the area agency on aging shall have access to all records
reasonably necessary for the purposes of investigating
reports.
(2) If a record custodian refuses to comply with an
order, the area agency on aging may file a petition with the
court of common pleas in the county where the older adult
resides for an order compelling the production of records.
The area agency on aging or the department shall compensate
the record custodian for actual costs of producing records,
or amounts as set forth by regulations adopted by the
department.
(3) If any other entity or individual denies access to
the older adult's records, the area agency on aging may
petition the court for an order to require access.
(c) Request of certain records.--Records of State agencies,
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private organizations, financial institutions, fiduciaries,
medical institutions and practitioners and persons reasonably
suspected of engaging in or facilitating the abuse, neglect,
exploitation or abandonment of an older adult, which the area
agency on aging reasonably believes to be necessary to complete
an investigation or assessment and service plan, shall be
requested in written form and be made available to the area
agency on aging unless the disclosure would be prohibited by any
other provision of Federal or State law. Except as provided by a
court order, access to financial records shall be limited to
records relating to the most recent transaction or transactions
that may comprise financial exploitation, not to exceed 30
calendar days prior to the first transaction that was reported
or 30 calendar days after the last transaction that was
reported.
(d) Involuntary denial.--If the area agency on aging can
demonstrate that the older adult has denied access to the older
adult's records because of incompetence, coercion, extortion or
justifiable fear, the area agency on aging shall have access to
all records reasonably necessary for the purposes of
investigating reports. If the older adult denying access to
records is competent, the area agency on aging may petition the
court for an order to require access.
(e) Compensation.--The area agency on aging or the
department shall compensate any person requested or ordered to
provide records to the area agency on aging for the reasonable
costs of producing records in a manner consistent with the
requirements of section 1115(a) of the Right to Financial
Privacy Act (Public Law 95-630, 12 U.S.C. § 3415).
§ 6926. Rights of older adults.
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(a) Notification.--The area agency on aging shall discreetly
notify the older adult during the investigation that a report
has been made and shall provide the older adult with a brief
summary of the nature of the report.
(b) Information.--As provided in section 6934 (relating to
confidentiality of records), the older adult who is the subject
of a report, or the older adult's guardian, if the guardian is
not named in the report, may receive, upon written request, all
information contained in the report of need except information
that would identify the person who made a report of suspected
abuse, neglect, exploitation or abandonment or persons who
cooperated in a subsequent investigation.
(c) Appeal.--Any denial of services by the department or an
area agency on aging under this subchapter may be appealed
according to the provisions of the rules and regulations issued
by the department under Article XXII-A of the act of April 9,
1929 (P.L.177, No.175), known as The Administrative Code of
1929.
§ 6927. Confidentiality standards required.
The area agencies on aging shall utilize the department's
confidentiality standards established under section 6913
(relating to confidentiality).
§ 6928. Availability of protective services.
The area agency on aging shall offer protective services
under any of the following conditions:
(1) An older adult requests the services.
(2) Another interested person requests the services on
behalf of an older adult.
(3) After investigation of a report, the area agency on
aging determines the older adult is in need of the services.
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SUBCHAPTER D
PROTECTIVE SERVICES
Sec.
6930. Consent by request.
6931. Interference with services.
6932. Financial obligations, liabilities and payments.
6933. Involuntary intervention by emergency court order.
6934. Confidentiality of records.
§ 6930. Consent by request.
An individual shall receive protective services voluntarily
unless the services are ordered by a court of competent
jurisdiction or requested by the older adult's legal
representative.
§ 6931. Interference with services.
If any person interferes with the provision of services or
interferes with the right of an older adult to consent to
provision of services, the area agency on aging may petition the
court for an order enjoining the interference.
§ 6932. Financial obligations, liabilities and payments.
All older adults receiving services and all agencies
providing services under this subchapter shall comply with the
following provisions regarding liability for the payment of
services:
(1) Funding to provide or make available protective
services under this subchapter shall not be used in place of
any public or private entitlements or benefits for which the
older adult receiving protective services under this
subchapter is or may be eligible.
(2) Funding available to local protective services
agencies under this subchapter may be used to cover the costs
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of activities, including, but not limited to:
(i) Administering protective services plans.
(ii) Receiving and maintaining records of reports of
abuse, neglect, exploitation and abandonment.
(iii) Conducting investigations of reported abuse,
neglect, exploitation and abandonment.
(iv) Carrying out assessments and developing service
plans.
(v) Petitioning the court.
(vi) Providing for emergency involuntary
intervention.
(vii) Arranging for available services needed to
carry out service plans, which may include arranging for
services for other persons in order to reduce, correct or
eliminate abuse, neglect, exploitation or abandonment of
an older adult.
(viii) Purchasing, on a temporary basis, services
determined by a service plan to be necessary to reduce,
correct or eliminate abuse, neglect, exploitation or
abandonment of an older adult when the services are not
available within the existing resources of the area
agency on aging or other appropriate provider. Purchase
of services under this provision is limited to a 30-day
period which may be renewed with adequate justification
under regulations issued by the department.
(3) Older adults receiving protective services shall not
be required to pay a fee for any services received by other
older adults when the receipt of the services by others is
not subject to cost sharing.
§ 6933. Involuntary intervention by emergency court order.
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(a) Emergency petition.--An area agency on aging 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, sexual abuse, serious bodily injury or financial
exploitation. The court of common pleas shall grant the area
agency on aging's petition if it finds, by clear and convincing
evidence, that failure to provide protective services will place
the older adult at imminent risk of death, sexual abuse, serious
bodily injury or financial exploitation. The courts of common
pleas of each judicial district shall ensure that a judge or
magisterial district judge is available at all times to accept
and rule on petitions for emergency court orders under this
section whenever the area agency on aging determines that a
delay until normal court hours may significantly increase danger
to the older adult.
(b) Limited order.--The court, after finding clear and
convincing evidence of the need for an emergency order, shall
order only services necessary to remove the conditions creating
the established need.
(c) Right to counsel.--In order to protect the rights of an
older adult for whom protective services are being ordered, an
emergency court order under this section shall provide that the
older adult has the right to legal counsel. If the older adult
is unable to provide for counsel, counsel shall be appointed by
the court.
(d) Forcible entry.--If it is necessary to forcibly enter
premises after obtaining a court order, a law enforcement
official may do so, accompanied by a representative of the area
agency on aging.
(e) Health and safety requirements.--The area agency on
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aging shall take reasonable steps to ensure that while the older
adult is receiving services under an emergency court order, the
health and safety needs of any of the older adult's dependents
are met and that the personal property and dwelling of the older
adult are secure.
§ 6934. Confidentiality of records.
(a) Requirement.--Information contained in reports, records
of investigation, assessments and service plans created under
this subchapter shall be considered confidential and shall be
maintained under regulations issued by the department. Except as
provided below, this information shall be disclosed by area
agency on aging staff for the purposes of development and
implementation of protective services. The department or the
area agency on aging may not release information that could be
detrimental to the older adult except that the information shall
be released to a law enforcement official under subsection (b)
(2) and may be used by the department in civil proceedings,
subject to protective orders. All information contained in
protective service records is subject to other Federal and State
confidentiality and security laws.
(b) Release of protective services records.--Protective
services records may be provided as follows:
(1) Protective services records may be provided to a
court of competent jurisdiction or to another party pursuant
to court order. A subpoena, other than a grand jury subpoena,
shall not be a court order for purposes of this section.
(2) Protective services records may be provided to law
enforcement officials or a coroner if the information is
relevant to the official's or coroner's investigation of
abuse, neglect, exploitation or abandonment of the older
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adult.
(3) In arranging specific services to carry out service
plans, the area agency on aging may disclose information to
appropriate service providers as may be necessary to initiate
the delivery of services.
(4) The older adult who is the subject of a report or
the older adult's guardian may receive, upon written request,
all information contained in the report of need except
information that would identify the person who made a report
of suspected abuse, neglect, exploitation or abandonment or
persons who cooperated in a subsequent investigation.
(5) A person who made a report of suspected abuse,
neglect, exploitation or abandonment may receive, upon
written request, confirmation that the report was received
and the area agency on aging is acting in accordance with
this subchapter.
(6) For the purposes of monitoring agency performance or
conducting other official duties, appropriate staff of the
department, as designated by the Secretary of Aging, may
access protective services records.
(7) The department or the area agency on aging may
collaborate or share information included in protective
services records with Commonwealth agencies for purposes of
official Commonwealth business.
(8) The department or the area agency on aging may share
protective services records with another area agency on aging
that is performing responsibilities under this subchapter
relevant to older adults within their jurisdictions.
(9) An employee of an agency of another state who
performs older adult protective services similar to those
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under this subchapter may access protective services records
relevant to older adults within their jurisdiction.
(10) Protective services records may be provided to a
health care provider who is examining or treating the older
adult and who suspects that the older adult is in need of
protection under this subchapter.
(11) Protective services records may be provided to the
director, or an individual specifically designated in writing
by the director, of any hospital or other medical institution
where the older adult is being treated if the director or
designee suspects that the recipient is in need of protection
under this chapter.
(12) Protective services records may be provided to a
financial institution or fiduciary as necessary to exercise
the authority to prohibit disbursement of money and
transactions provided under section 6952 (relating to
authority to prohibit disbursement of money and
transactions).
SUBCHAPTER E
REPORTING
Sec.
6940. Voluntary reporting.
6941. Mandatory reporting.
6942. Mandatory reporting to law enforcement officials and
department.
6943. Contents of reports.
6944. Mandatory reporter training.
6945. Coroner.
6946. Protecting identity of reporter and cooperating
witnesses.
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§ 6940. Voluntary reporting.
Any person having reasonable cause to suspect that an older
adult may be a victim of suspicious death, serious bodily
injury, sexual abuse or financial exploitation may report the
information to the area agency on aging.
§ 6941. Mandatory reporting.
A mandatory reporter who has reasonable cause to suspect that
an older adult may be a victim of abuse, neglect, exploitation
or abandonment shall immediately make an oral report to the area
agency on aging. If applicable, the area agency on aging shall
advise the mandatory reporter of additional reporting
requirements that may apply under section 6942 (relating to
mandatory reporting to law enforcement officials and
department). Within 48 hours of making the oral report, the
mandatory reporter shall make a written report to the area
agency on aging.
§ 6942. Mandatory reporting to law enforcement officials and
department.
In addition to the report under section 6941 (relating to
mandatory reporting), a mandatory reporter who has reasonable
cause to suspect that an older adult may be a victim of
suspicious death, serious bodily injury, sexual abuse or
financial exploitation shall immediately contact law enforcement
officials and the department to make an oral report. Within 48
hours of making the oral report, the mandatory reporter shall
make a written report to appropriate law enforcement officials
and to the area agency on aging. The area agency on aging shall
forward the report to the department within 48 hours of receipt.
§ 6943. Contents of reports.
A written mandatory report under this section shall be in a
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manner and on forms prescribed by the department. At a minimum,
the report shall include the following information, as well as
anything additional required by regulation:
(1) Name, age, sex and address of the older adult.
(2) Name and address of the older adult's legal
representative or next of kin.
(3) Name and address of the facility, if applicable.
(4) Nature and location of the reported incident and any
specific comments or observations that are directly related
to the alleged incident and the older adult involved.
(5) Any relevant information known related to the
identity of the alleged perpetrator, including, but not
limited to, name, age, sex and relationship to the older
adult.
(6) Name of the individual making the report, contact
information for the reporter and information regarding any
actions taken by the reporter in response to the incident.
§ 6944. Mandatory reporter training.
Mandatory reporters shall be trained on the requirements to
report identified within this subchapter.
§ 6945. Coroner.
For a report under this section that concerns the death of an
older adult, if there is reasonable cause to suspect that the
older adult died as a result of abuse, neglect, exploitation or
abandonment, the area agency on aging shall give the oral report
and forward a copy of the written report to the appropriate
coroner within 24 hours.
§ 6946. Protecting identity of reporter and cooperating
witnesses.
(a) Prohibition.--Except for disclosures to law enforcement
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officials, the release of records that would identify the
individual who made a report under this subchapter or an
individual who cooperated in a subsequent investigation is
prohibited.
(b) Identity protection.--If records are provided pursuant
to court order, the identity of the reporter and cooperating
witnesses shall be deleted, unless otherwise ordered by the
court after an in-camera review.
SUBCHAPTER F
FINANCIAL INSTITUTIONS AND FIDUCIARIES
Sec.
6950. Financial institution employee training.
6951. Regulated financial institutions.
6952. Authority to prohibit disbursement of money and
transactions.
6953. Immunity.
6954. Release of nonpublic personal information.
§ 6950. Financial institution employee training.
Each financial institution with employees in this
Commonwealth, or with employees regularly engaging in financial
transactions with, or on behalf of, older adults in this
Commonwealth, shall adopt and implement a training program
developed by the department for the employees of the financial
institution to:
(1) identify activities that constitute the financial
exploitation of older adults;
(2) recognize financial exploitation of older adults;
(3) prevent and deter the financial exploitation of
older adults; and
(4) respond to suspected cases of financial exploitation
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of older adults.
§ 6951. Regulated financial institutions.
A financial institution subject to visitorial examination by
a regulatory authority that incorporates the training activities
required by section 6950 (relating to financial institution
employee training) into its employee training program to control
fraud and money laundering shall be deemed to be in compliance
with section 6950.
§ 6952. Authority to prohibit disbursement of money and
transactions.
The following apply:
(1) If a financial institution or fiduciary reasonably
believes that financial exploitation of an older adult may
have occurred, may have been attempted, or is being
attempted, pending an investigation by the financial
institution or fiduciary, the area agency on aging or a law
enforcement official, the financial institution or fiduciary
may, but is not required to, refuse to disburse money or
engage in a transaction as appropriate to prevent financial
exploitation of an older adult with respect to the account:
(i) of the older adult;
(ii) on which the older adult is a beneficiary,
including a trust or guardianship account; or
(iii) of a person suspected of perpetrating
financial exploitation of an older adult.
(2) A financial institution or fiduciary may, but is not
required to, refuse to disburse money or engage in a
transaction under this section if the area agency on aging or
a law enforcement official requests the financial institution
to do so or provides information to the financial institution
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demonstrating that it is reasonable to believe that financial
exploitation of an older adult may have occurred, may have
been attempted or is being attempted.
(3) A financial institution or fiduciary is not required
to refuse to disburse money or engage in a transaction when
provided with information alleging that financial
exploitation of an older adult may have occurred, may have
been attempted or is being attempted, but may use its
discretion to determine whether or not to refuse to disburse
money or engage in a transaction based on the information
available to the financial institution or fiduciary.
(4) Except as prohibited by Federal or State law, a
financial institution or fiduciary that refuses to disburse
money or engage in a transaction based on a reasonable belief
that financial exploitation of an older adult may have
occurred, may have been attempted, or is being attempted
shall:
(i) Make a reasonable effort to notify all parties
authorized to transact business on the account.
(ii) Report the incident to the area agency on aging
or law enforcement officials.
(5) Any refusal to disburse money or engage in a
transaction as authorized by this section based on the
reasonable belief of a financial institution or fiduciary
that financial exploitation of an older adult may have
occurred, may have been attempted or is being attempted shall
expire upon the sooner of:
(i) fifteen business days after the date on which
the financial institution or fiduciary first refused to
disburse the money or engage in a transaction, unless
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sooner terminated or extended by an order of a court of
competent jurisdiction, a law enforcement official, the
department, or the area agency on aging. An additional 30
business days shall be permitted, if requested by a law
enforcement official, the department or the area agency
on aging, or following the submission of an application
for a court order further extending the time period; or
(ii) the time when the financial institution or
fiduciary is satisfied that the disbursement will not
result in financial harm of an older adult.
(6) A court of competent jurisdiction may enter an order
extending the refusal by the financial institution to
disburse money based on a reasonable belief that financial
exploitation of an older adult may have occurred, may have
been attempted or is being attempted. A court of competent
jurisdiction may also order other protective relief as
authorized.
§ 6953. Immunity.
(a) Damages.--Except as provided by subsection (c), a
financial institution or fiduciary, and its directors, officers,
employees or agents shall not be subject to a claim for damages
or other civil or criminal liability for:
(1) The identification of or failure to identify the
financial exploitation of an older adult.
(2) A decision on whether to make a report under section
6940 (relating to voluntary reporting).
(3) A refusal to disburse money or engage in a
transaction under section 6952 (relating to authority to
prohibit disbursement of money and transactions) or a
decision to allow the disbursement of money or the conduct of
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a transaction under section 6952.
(4) The release of information to a law enforcement
agency, the department or the area agency on aging as
authorized by this chapter.
(b) Additional immunities and defense.--Notwithstanding any
other law to the contrary:
(1) The refusal by a financial institution to engage in
a transaction authorized under this subsection shall not
constitute the wrongful dishonor of an item under 13 Pa.C.S.
§ 4402 (relating to liability of bank to customer for
wrongful dishonor; time of determining insufficiency of
account).
(2) A reasonable belief that payment of a check will
facilitate the financial exploitation of an older adult shall
constitute reasonable grounds to doubt the collectibility of
the item for purposes of the Expedited Funds Availability Act
(Public Law 100-86, 12 U.S.C. § 4001 et seq.), the Check
Clearing for the 21st Century Act (Public Law 108-100, 12
U.S.C. § 5001 et seq.) and 12 CFR Pt. 229 (relating to
availability of funds and collection of checks (Regulation
CC)).
(c) Limitation.--The immunities and defenses provided under
this section shall not apply to a director, officer, employee or
agent of a financial institution or fiduciary who has been found
to have engaged in financial exploitation of an older adult.
(d) Standing.--A financial institution, fiduciary or
mandatory reporter may initiate a proceeding in a court of
competent jurisdiction to obtain protective services for an
older adult in need of protective services, prohibit the
disbursement of money or transactions that may result in the
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financial exploitation of an older adult or request the review
of an order issued under this chapter or other law to protect an
older adult from suspected financial exploitation.
(e) Suspicious activity reports.--The department shall use
its best efforts to enter into a cooperative agreement with the
United States Department of the Treasury to receive or access
suspicious activity reports filed by financial institutions with
the United States Department of the Treasury. Except as
prohibited by Federal law, any other Commonwealth agency which
receives or is granted access to the reports from the United
States Department of the Treasury shall make the reports or
access to the reports available to the department to facilitate
the discharge of the department's duties under this chapter.
§ 6954. Release of nonpublic personal information.
A financial institution may release nonpublic personal
information when reporting a known or suspected instance of
financial exploitation of an older adult or when cooperating
with an area agency on aging or law enforcement official
investigation of known or suspected financial exploitation of an
older adult.
SUBCHAPTER G
CRIMINAL HISTORY
Sec.
6960. Criminal history.
§ 6960. Criminal history.
(a) General rule.--Prior to hiring or engaging an applicant,
a facility shall require the applicant, owner or operator to
submit the following information obtained within the preceding
one-year period:
(1) Under 18 Pa.C.S. Ch. 91 (relating to criminal
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history record information), a report of criminal history
record information from the Pennsylvania State Police or a
statement from the Pennsylvania State Police that its central
repository contains no information relating to the applicant.
(2) Federal criminal history record information pursuant
to applicable Federal law. The following apply:
(i) The department shall serve as the intermediary
under this section. The applicant shall submit a full set
of fingerprints to the Federal Bureau of Investigation in
a manner designated by the department.
(ii) Criminal history information shall be used by
the department to determine the applicant's eligibility
for employment with a facility. The employment
determination shall be provided to the facility and the
applicant prior to commencement of employment. The
facility shall ensure confidentiality of the information.
(3) Additional applicant information from a court or
other authority as required by the department and 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 employment ineligibility.
(b) Applicability.--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 subsection (a).
(c) Prohibited offenses.--The following offenses and Federal
or out-of-State offenses similar in nature are prohibited, as
follows:
(1) Fifteen-year employment restriction. A facility may
not hire or engage an applicant required to submit
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information required under this chapter for a period of 15
years following the date of conviction if the applicant's
criminal history record information indicates the applicant
has been convicted of an offense or attempt, solicitation or
conspiracy to commit an offense under one 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 2715 (relating to threat to use weapons of
mass destruction).
Section 2716 (relating to weapons of mass
destruction).
Section 2717 (relating to terrorism).
Section 2901 (relating to kidnapping).
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 3212 (relating to infanticide).
Section 4302 (relating to incest).
Section 4303 (relating to concealing death of child).
Section 4304 (relating to endangering welfare of
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children).
Section 4305 (relating to dealing in infant
children).
Section 5510 (relating to abuse of corpse).
Section 6312 (relating to sexual abuse of children).
(2) Ten-year employment restriction. A facility shall
not hire or engage an applicant required to submit criminal
history information required under this chapter for a period
of 10 years from the date of conviction if the applicant's
criminal history record information indicates that the
applicant has been convicted of an offense or attempt,
solicitation or conspiracy to commit an offense under one of
the following provisions of 18 Pa.C.S.:
Two or more misdemeanors under section 2705 (relating
to recklessly endangering another person).
Section 2902 (relating to unlawful restraint).
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).
Two or more misdemeanors under Chapter 39.
Section 4101 (relating to forgery).
Section 4106 (relating to access device fraud).
Section 4114 (relating to securing execution of
documents by deception).
Section 4120 (relating to identity theft).
Section 4952 (relating to intimidation of witnesses
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or victims).
Section 4953 (relating to retaliation against
witness, victim or party).
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).
(3) Five-year employment restriction. A facility shall
not hire or engage an applicant required to submit criminal
history information required under this chapter for a period
of five years from the date of conviction if the applicant's
criminal history record information indicates that the
applicant has been convicted of an offense or attempt,
solicitation or conspiracy to commit an offense under one of
the following provisions:
(i) Any of the following provisions of 75 Pa.C.S.
(relating to vehicles):
Section 3735 (relating to homicide by vehicle
while driving under influence).
Section 3735.1 (relating to aggravated assault by
vehicle while driving under the influence).
Section 3742 (relating to accidents involving
death or personal injury).
A misdemeanor graded at the second degree or
higher under section 3802 (relating to driving under
influence of alcohol or controlled substance).
(ii) 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.
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(d) Exemptions.--A facility may hire an applicant subject to
an employment restriction under subsection (c) prior to the
expiration of the restriction period if the facility documents
the facility's consideration of information provided by the
applicant on an employer discretion form, related to the
following:
(i) nature of the crime;
(ii) facts surrounding the conviction;
(iii) time elapsed since the conviction;
(iv) the evidence of the individual's
rehabilitation; and
(v) the nature and requirements of the job.
(e) Penalties.--
(1) An administrator or employee who discloses a
conviction for an offense enumerated under subsection (c)
shall be subject to termination.
(2) An administrator or employee who willfully fails to
disclose a conviction for an offense enumerated under
subsection (c) shall be subject to termination and may be
subject to criminal prosecution under 18 Pa.C.S. § 4904
(relating to unsworn falsification to authorities).
(f) Provisional employees for limited periods.--The
following apply:
(1) An administrator may employ an applicant, other than
an applicant who is a direct care worker referred by a home
care registry to provide home care services to a consumer, on
a provisional basis for a single period not to exceed 90 days
if all of the following conditions are met:
(i) The applicant has applied for a criminal history
report required under subsection (a)(1) and (2) and
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provided the facility with a copy of the completed
request forms.
(ii) The facility has no knowledge about the
applicant that would disqualify the applicant from
provisional employment under 18 Pa.C.S. § 4911 (relating
to tampering with public records or information).
(iii) The applicant swears or affirms in writing
that the applicant is not disqualified from employment
under this subchapter.
(2) If the information obtained from the criminal
history report reveals that the applicant is disqualified
from employment, the applicant shall be terminated
immediately.
(g) Supervision.--The department shall develop guidelines
regarding the supervision of provisional employees. Supervision
shall include random direct supervision by an employee who has
been employed by the facility for a period of at least one year.
SUBCHAPTER H
REMEDIES
Sec.
6970. Penalties.
6971. Immunity from civil and criminal liability.
§ 6970. Penalties.
(a) Civil penalties.--
(1) A mandatory reporter who fails to comply or
obstructs compliance with the provisions of this chapter or
who intimidates or commits a retaliatory act against an
individual who complies in good faith with the provisions of
this chapter commits a violation of this chapter and shall be
subject to an administrative penalty. The department shall
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have jurisdiction to determine violations of this chapter and
may issue an order assessing a civil penalty of not more than
$5,000. An order under this paragraph is subject to 2 Pa.C.S.
Chs. 5 Subch. A (relating to practice and procedure of
Commonwealth agencies) and 7 Subch. A (relating to judicial
review of Commonwealth agency action).
(2) Each Commonwealth agency which licenses a facility
shall have jurisdiction regarding violations of section 6960
(relating to criminal history) and may issue an order
assessing a civil penalty not to exceed $5,000.
(3) An older adult or any person making a report or
cooperating with the area agency on aging, including
providing testimony in any administrative or judicial
proceeding, shall be free from any discriminatory,
retaliatory or disciplinary action by an employer or by any
other person. Any person who violates this paragraph shall be
subject to a civil action by the reporter or the older adult.
The reporter or older adult shall recover treble compensatory
damages, compensatory and punitive damages or $5,000,
whichever is greater.
(4) Any person, including the older adult, with
knowledge sufficient to justify making a report or
cooperating with the area agency on aging, including
providing testimony in any administrative or judicial
proceeding, shall be free from any intimidation by an
employer or by any other person. Any person who violates this
paragraph shall be subject to a civil action by the person
intimidated or the older adult. The person intimidated or the
older adult shall recover treble compensatory damages,
compensatory and punitive damages or $5,000, whichever is
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greater.
(b) Criminal penalties.--
(1) A mandatory reporter under this chapter who
intentionally fails to report suspected abuse, neglect,
exploitation or abandonment commits a summary offense for the
first violation and a misdemeanor of the second degree for a
second or subsequent violation and shall, upon conviction, be
sentenced to pay a fine of $5,000 or to imprisonment for not
more than one year, or both.
(2) A person who makes a false statement or
representation of a material fact in a report of need commits
a misdemeanor of the first degree and shall, upon conviction,
be sentenced to pay a fine of not more than $10,000 or to
imprisonment for not more than five years, or both.
(c) Immunity.--
(1) Any person participating in the making of a report
of need, or who provides testimony in any administrative or
judicial proceeding in any court of this Commonwealth arising
out of a report, shall be immune from any civil or criminal
liability on account of the report or testimony related to
good faith compliance with this chapter. This immunity shall
not extend to liability for acts of abuse, neglect,
exploitation or abandonment, even if the acts are the subject
of the report or testimony.
(2) An entity that employs a person required or
permitted to make a report under this chapter shall not be
held civilly liable for any action directly related to good
faith compliance with this chapter.
(d) Use.--Money collected under this chapter by the
department shall be used for department programs to investigate
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and prevent the abuse, neglect, exploitation and abandonment of
older adults.
§ 6971. Immunity from civil and criminal liability.
In the absence of willful misconduct or gross negligence, the
area agency on aging, the director, employees of the area agency
on aging, protective services workers or employees of the
department shall not be civilly or criminally liable for any
decision or action or resulting consequence of decisions or
action when acting under and according to the provisions of this
chapter.
SUBCHAPTER I
ADMINISTRATION
Sec.
6980. Funding.
6981. Regulations.
§ 6980. Funding.
Money necessary to administer this chapter shall be provided
by an annual appropriation by the General Assembly.
§ 6981. Regulations.
The department shall issue rules and regulations to carry out
this chapter and shall annually present to the General Assembly
a report on the program and services performed. State agencies
with oversight authority over entities impacted by this chapter
shall promulgate regulations necessary to assist the department
in implementing this chapter.
Section 2. Repeals are as follows:
(1) The General Assembly declares that the repeal under
paragraph (2) is necessary to effectuate the addition of 23
Pa.C.S. Ch. 69.
(2) The act of November 6, 1987 (P.L.381, No.79), known
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as the Older Adults Protective Services Act, is repealed.
Section 3. This act shall take effect as follows:
(1) The addition of 23 Pa.C.S. § 6911 shall take effect
in one year.
(2) This section shall take effect immediately.
(3) The remainder of this act shall take effect in 180
days.
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