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PRINTER'S NO. 2688
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1930
Session of
2019
INTRODUCED BY HENNESSEY, SCHLEGEL CULVER, MILLARD, MURT, RYAN,
McNEILL, PICKETT, STEPHENS, B. MILLER, READSHAW, WARREN,
POLINCHOCK, DeLUCA, STAATS, JAMES, MENTZER, WHEELAND, MULLINS
AND ROTHMAN, OCTOBER 15, 2019
REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES,
OCTOBER 15, 2019
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," making extensive amendments; and adding
provisions relating to preliminary provisions,
administration, criminal history for employees, reporting
suspected abuse by employees and miscellaneous provisions.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 102, 103 and 301 of the act of November
6, 1987 (P.L.381, No.79), known as the Older Adults Protective
Services Act, are amended to read:
Section 102. Legislative [policy] intent.
[It is declared the policy of the Commonwealth of
Pennsylvania] The General Assembly finds and declares that:
(1) It is the policy of the Commonwealth that older
adults who lack the capacity to protect themselves and are at
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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.
(2) 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.
(3) 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]
(4) The General Assembly intends 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.
(5) It is the policy of the Commonwealth that
convictions for certain offenses that evidence a reckless
disregard for the vulnerability of care-dependent
populations, certain offenses involving misappropriation or
misuse of property or convictions that involve inappropriate
or irresponsible behavior may legitimately warrant time-
limited bans on employment working with older adults under
this act.
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:
"Abandonment." The desertion of an older adult by a
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caretaker.
"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.]
(3) Sexual abuse, including:
(i) rape;
(ii) involuntary deviate sexual intercourse;
(iii) sexual assault;
(iv) aggravated indecent assault;
(v) indecent assault; and
(vi) incest.
(4) Sexual harassment, including:
(i) unwelcome sexual advances;
(ii) requests for sexual favors; and
(iii) other unwelcome verbal or physical conduct of
a sexual nature.
"Administrator." The person responsible for the
[administration] management of a facility. The term includes a
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person responsible for employment decisions or an independent
contractor responsible for administration of a facility.
["Agency." The local provider of protective services, which
is the area agency on aging or the agency designated by the area
agency on aging to provide protective services in the area
agency's planning and service area.]
"Agent." A person authorized to act on behalf of an older
adult, including a person acting pursuant to a power of
attorney.
"Applicant." An individual who submits an application to be
considered for employment.
"Area agency on aging" or "AAA." The single local agency or
its agent 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 using
instruments and procedures established by the department.
"Care." Services provided to meet [a person's] an older
adult's need for personal care or health care[. Services may
include homemaker services, assistance with activities of daily
living, physical therapy, occupational therapy, speech therapy,
medical social services, home-care aide services, companion-care
services, private duty nursing services, respiratory therapy,
intravenous therapy, in-home dialysis and durable medical
equipment services, which are routinely provided unsupervised
and which require interaction with the care-dependent person.
The term does not include durable medical equipment delivery.]
which requires interaction with the older adult.
"Care-dependent individual." An adult who, due to physical
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or cognitive disability or impairment, requires assistance to
meet needs for food, shelter, clothing, personal care or health
care.
"Caretaker." [An individual or institution 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 family relationship, or by
order of a court of competent jurisdiction. It is not the intent
of this act to impose responsibility on any individual if such
responsibility would not otherwise exist in law.
"Client assessment." Social, physical and psychological
findings along with a description of the person's current
resources and needs.
"Court." A court of common pleas or a district magistrate
court, where applicable.] Any person who:
(1) is an owner, operator, manager or employee of any of
the following licensed or unlicensed entities:
(i) a nursing home, personal care home, assisted
living facility, private care residence or domiciliary
care home;
(ii) a community residential facility or
intermediate care facility for a person with mental
disabilities;
(iii) an adult daily living center;
(iv) a home health service provider; or
(v) a health care 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.
(2) provides care to an older adult in the settings
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described under paragraph (1);
(3) has an obligation to care for an older adult person
for monetary consideration in the settings described under
paragraph (1);
(4) is an adult who resides with an older adult and who
has a legal duty to provide care or who has voluntarily
assumed an obligation to provide care because of a familial
relationship, contract or court order; or
(5) is an adult who does not reside with an older adult
but who has a legal duty to provide care or who has
affirmatively assumed a responsibility for care or who has
responsibility by contract or court order.
"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 that, where feasible,
is obtained in writing.
"Department." The Department of Aging of the Commonwealth.
"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.]:
(1) is employed by a facility, or the affiliated
corporate entity of a facility, or enters into a contractual
relationship with a facility, an older adult, an older
adult's family, agent, legal representative or the affiliated
corporate entity of a facility, to provide care to an older
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adult;
(2) has unsupervised access to another individual and
that individual's living quarters, resources or personal
records; or
(3) is a student doing an internship or clinical
rotation or any other individual who has been granted access
to a facility or older adult to perform a clinical service
for a fee.
"Exploitation." An act or course of conduct by a caretaker
or other person against an older adult or an older adult's
resources, without the informed consent or authorization of the
older adult or with consent or authorization obtained through
misrepresentation, coercion or threats of force, [that results]
resulting in monetary, personal or other benefit, gain or profit
for [the perpetrator] that caretaker or person, or monetary or
personal loss to the older adult.
"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.] Any of the
following entities as defined in section 802.1 of 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.
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(v) A home care registry.
(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.
(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] Human Services Code.
(6) An assisted living residence as defined in section
1001 of the Human Services Code.
(7) A PACE provider as defined in section 1894 of the
Social Security Act (49 Stat. 620, 42 U.S.C. § 1395eee).
(8) 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.
"Fiduciary." A guardian, custodian, trustee, agent, personal
representative or other person authorized or required to act on
behalf of an older adult.
"Financial exploitation." The wrongful or unauthorized
taking or attempt to take by withholding, appropriation,
concealment or use of money, assets or property of an older
adult, including any act or omission taken by a person,
including through the use of a power of attorney, guardianship,
custodian, trustee, personal representative or conservatorship
of an older adult or by an individual who stands in a position
of trust and confidence with the older adult, including business
transactions to:
(1) obtain or attempt to obtain control, through
deception, intimidation or undue influence, over the older
adult's money, assets or property to deprive the older adult
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of the ownership, use, benefit or possession of the older
adult's money, assets or property; or
(2) convert or attempt to convert money, assets or
property of the older adult to deprive the older adult of the
ownership, use, benefit or possession of the older adult's
money, assets or property.
"Financial institution." Any of the following:
(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) Any 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 funds, including
any person who engages as a business in an informal money
transfer system or any network of people who engage as a
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business in facilitating the transfer of money domestically
or internationally outside of the conventional financial
institutions system.
(15) A person required to be registered as an investment
adviser by the Investment Advisers Act of 1940 (54 Stat. 847,
15 U.S.C. § 80b-1 et seq.) or under the laws of this
Commonwealth.
(16) Any business or agency that engages in activity the
department determines, by regulation, to be similar to,
related to or a substitute for any activity engaged in by a
business described in paragraphs (1) through (14).
["Home health care agency." Any of the following:
(1) A home health care organization or agency licensed
by the Department of Health.
(2) A public or private agency or organization, or part
of an agency or organization, which provides care to a care-
dependent individual in the individual's place of residence.]
"Incapacitated person." An adult whose ability to receive or
evaluate information effectively or communicate decisions in any
way is impaired to such a significant extent that the adult is
partially or totally unable to manage the adult's financial
resources or to meet essential requirements for the adult's
physical health and safety.
"Intimidation." An act or omission by any person or entity
toward another person [which is intended to, or with knowledge
that the act or omission will, obstruct, impede, impair, prevent
or interfere] that obstructs, impedes, impairs, prevents or
interferes with the administration of this act or any other law
intended to protect older adults from mistreatment.
"Law enforcement official." Any of the following:
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(1) A police officer of a municipality.
(2) A district attorney.
(3) The Pennsylvania State Police.
(4) A county sheriff.
(5) The Attorney General of the Commonwealth.
(6) The United States Department of Justice and other
Federal law enforcement agencies.
(7) A law enforcement authority in another state.
"Mandatory reporter." Any of the following:
(1) A facility employee or administrator.
(2) A health care provider that is:
(i) a licensed hospital or health care facility; or
(ii) an individual licensed, certified or otherwise
regulated to provide health care services under the laws
of this Commonwealth, including a physician, podiatrist,
optometrist, psychologist, psychiatrist, physical
therapist, certified nurse practitioner, registered
nurse, nurse midwife, physician's assistant,
chiropractor, dentist, pharmacist or any other individual
accredited or certified to provide behavioral health
services.
(3) Coroner.
"Neglect." The failure to provide for oneself or the failure
of a caretaker to provide goods or services essential to avoid a
clear and serious threat to physical or mental health. No older
adult who does not consent to the provision of protective
services shall be found to be neglected 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.
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"Older adult." [A person] An individual within the
jurisdiction of [the] this Commonwealth who is 60 years of age
or older.
"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.
"Protective services." Those activities, resources and
supports provided to older adults under this act to detect,
prevent, reduce or eliminate abuse, neglect, exploitation and
abandonment.
["Protective setting." A setting chosen by the agency where
services can be provided in the least restrictive environment to
protect the physical and mental well-being of the older adult.]
"Recipient." An individual who receives care, services or
treatment in or from a facility.
"Secretary." The Secretary of Aging of the Commonwealth.
["Serious bodily injury." Injury which creates a substantial
risk of death or which causes serious permanent disfigurement or
protracted loss or impairment of the function of a body member
or organ.
"Serious physical injury." An injury that:
(1) causes a person severe pain; or
(2) significantly impairs a person's physical
functioning, either temporarily or permanently.]
"Serious bodily injury." Injury that:
(1) creates a substantial risk of death; or
(2) causes serious permanent disfigurement or protracted
loss or impairment of the function of a body member or organ.
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The term does not include an isolated accidental injury self-
inflicted by the older adult.
"Service plan." A written plan [developed]:
(1) Developed by the [agency] area agency on aging on
the basis of comprehensive assessment of [a client's need
which describes identified needs, goals to be achieved and
specific services to support goal attainment, with regular
follow-up and predetermined reassessment of client progress.
Specific services to support goal attainment may include, but
is not limited to, homemaker services, home-delivered meals,
attendant care, other in-home services, emergency shelter or
food, legal aid services, transportation and other such
services. Service plans are cooperatively developed by the
agency staff, the client or the client's appointed guardian,
and other family members when appropriate. The plan shall
also address, where applicable, special needs of other
members of the household unit as they may affect the older
adult's need for protective services.]
"Sexual abuse." Intentionally, knowingly or recklessly
causing or attempting to cause rape, involuntary deviate sexual
intercourse, sexual assault, statutory sexual assault,
aggravated indecent assault, indecent assault or incest.] an
older adult that describes identified needs and specific
services designed to support goal attainment.
(2) That includes regular follow-up and predetermined
reassessment of progress.
(3) In which the specific services support goal
attainment and may include, but need not be limited to:
(i) Homemaker services.
(ii) Home-delivered meals.
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(iii) Personal care.
(iv) Other in-home services.
(v) Emergency shelter or food.
(vi) Legal aid services.
(vii) Transportation.
(viii) Victim services or counseling.
(ix) Other such services.
(4) Cooperatively developed by the area agency on aging
staff, the older adult or his legal representative, and other
family members, and staff from the facility, when
appropriate.
(5) That addresses special needs of other members of the
household unit if they affect the older adult's need for
protective services.
"Suspicious death." A death that is unexpected with
unexplained circumstances or cause.
Section 301. Duties of department and area agencies on aging.
(a) Public information and interdepartmental consultation.--
The department shall conduct an ongoing public awareness
campaign designed to inform and educate older adults,
professionals and the general public about the need for [an] and
the availability of protective services under this chapter. The
department shall consult with other [departments of the
Commonwealth] State agencies on the design and implementation of
the ongoing public awareness campaign. The department shall also
consider the concerns of area agencies on aging and the entities
identified by them under subsection (c).
(b) Staff training.--
(1) The department shall establish minimum standards of
training and experience [which] that protective services
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providers funded by the department shall be required to
follow in the selection and assignment of staff for the
provision of protective services.
(2) The department shall establish a training program
for mandatory reporters about the requirement to report under
this act.
(c) Protective services plans.--
(1) Each area agency on aging shall include a protective
services plan as part of its annual plan. The plan shall
describe the local implementation of this [chapter] act,
including the organization, staffing, mode of operations and
financing of protective services, as well as the provisions
made for purchase of services, interagency relations,
interagency agreements, service referral mechanisms and locus
of responsibility for cases with multiservice agency needs.
(2) The [description of] department shall establish the
methods that will be used by the [agency] AAA, its designees
and its service providers to assure the privacy of older
adults receiving services and the confidentiality of all
records [shall be established by the department]. The
department shall establish a schedule for the submission and
approval of the plans.
(3) The [plan shall include] area agency on aging shall
include in the plan, a list of all entities, whether public
or private, that have been identified by the [area agency on
aging] AAA as having substantial contact with potential
victims or alleged perpetrators of abuse, neglect,
exploitation and abandonment. [This list shall be submitted]
The area agency on aging shall submit this list to the
department for purposes of the public information campaign
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under subsection (a).
Section 2. The act is amended by adding a section to read:
Section 301.1. Duties of financial institutions and
fiduciaries.
(a) Training.--A 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
for its employees to:
(1) Identify activities that constitute the financial
exploitation of older adults.
(2) Recognize signs of potential financial exploitation
of older adults.
(3) Prevent and deter the financial exploitation of
older adults.
(4) Respond to suspected cases of financial exploitation
of older adults.
(b) Model training program.--The department, in cooperation
with the Department of Banking and Securities and
representatives of the financial services industry in this
Commonwealth, shall establish a model training program that may
be used to satisfy the requirements of subsection (a). A
national organization's training program may be adopted as the
model program if the training is certified or accredited.
(c) Regulated financial institutions.--A financial
institution subject to visitorial examination by a regulatory
authority that incorporates the training activities required by
subsection (a) into the financial institution's employee
training program to control fraud and money laundering that is
subject to examination by the regulatory authority shall be
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deemed to be in compliance with subsection (a).
(d) Authority to prohibit disbursement of funds and
transactions.--
(1) If a financial institution or fiduciary reasonably
believes after initiating an internal review that a requested
disbursement or transaction may result in the financial
exploitation of an older adult, the financial institution or
fiduciary may, but is not required to, refuse to make the
disbursement or engage in the transaction, as appropriate, to
prevent financial exploitation of the 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 funds or engage in a
transaction under this section if an area agency on aging or
law enforcement official requests the financial institution
or fiduciary to do so in writing or provides information in
writing to the financial institution or fiduciary
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 funds 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 and may use the
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financial institution's or fiduciary's discretion to
determine whether or not to refuse to disburse funds 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
funds 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 persons
authorized to transact business on the account or that
are beneficiaries of the account affected by the refusal
to make the disbursement or engage in the transaction,
orally or in writing, except for any person reasonably
believed to have engaged in the suspected or attempted
financial exploitation of the older adult.
(ii) Report the incident to the area agency on aging
or law enforcement officials.
(5) A notification provided under paragraph (4)(i) is
sufficient if the notice states that a financial institution
or fiduciary has temporarily blocked the disbursement of
funds or delayed the execution of transactions as authorized
by this subsection and identifies the name of the financial
institution or fiduciary and any account or transactions to
which the notification applies and provides a name and
telephone number of a contact person representing the
financial institution or fiduciary or the area agency on
aging or law enforcement agency to which a report has been
provided under paragraph (4)(ii).
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(6) Any refusal to disburse funds 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 funds or engage in a transaction, unless
sooner terminated or extended by an order of a court of
competent jurisdiction, or upon a request made by a law
enforcement official, the department or an area agency on
aging. An additional 25 business days shall be permitted,
if requested by a law enforcement official, the
department or an area agency on aging or following the
submission of an application for a court order further
extending the time period; or
(ii) except as provided by paragraph (i), the time
when the financial institution or fiduciary is satisfied
that the disbursement will not result in financial harm
to the older adult. A request provided by subparagraph
(i) shall be documented in writing.
(7) A court of competent jurisdiction may enter an order
extending the refusal by the financial institution or
fiduciary to disburse funds 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.
(e) Immunity.--Except as provided by subsection (g), a
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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 or failure to identify the
financial exploitation of an older adult.
(2) A decision to make a report or not make a report
under subsection (a).
(3) A refusal to disburse funds or engage in a
transaction under subsection (c) or a decision to allow the
disbursement of funds or the conduct of transactions under
subsection (c).
(4) The release of information to a law enforcement
agency, the department or an area agency on aging as
authorized by this chapter.
(f) Additional immunities and defenses.--Notwithstanding any
other law to the contrary:
(1) The refusal by a financial institution to engage in
a transaction as 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 collectability 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 C.F.R. Pt. 229 (relating to
availability of funds and collection of checks (regulation
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cc)).
(g) Limitation.--The immunities and defenses provided under
subsections (e) and (f) 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.
(h) Suspicious activity reports.--
(1) 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.
(2) Except as prohibited by Federal law, any other
Commonwealth agency that receives or is granted access to
such reports from the United States Department of the
Treasury shall make the reports or access to the reports
available to the department in order to facilitate the
discharge of the department's duties under this act.
Section 3. Section 302 of the act is amended to read:
Section 302. Reporting; protection from retaliation; immunity.
(a) [Reporting] Voluntary reports.--Any person, including an
employee of a financial institution or fiduciary, having
reasonable cause to [believe] suspect that an older adult [is in
need of protective services] may be a victim of abuse, neglect,
exploitation or abandonment may report such information to the
[agency which is the local provider of protective services.
Where applicable, reports shall comply with the provisions of
Chapter 7.
(b) Receiving reports.--The agency shall be capable of
receiving reports of older adults in need of protective services
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24 hours a day, seven days a week (including holidays). This
capability may include the use of a local emergency response
system or a crisis intervention agency, provided that access can
be made to a protective services caseworker in appropriate
emergency situations as set forth in regulations promulgated by
the department. All reports received orally under this section
shall be reduced to writing immediately by the person who
receives the report.
(c) Retaliatory action; penalty.--Any person making a report
or cooperating with the agency, including providing testimony in
any administrative or judicial proceeding, and the victim shall
be free from any discriminatory, retaliatory or disciplinary
action by an employer or by any other person or entity. Any
person who violates this subsection is subject to a civil
lawsuit by the reporter or the victim wherein the reporter or
victim shall recover treble compensatory damages, compensatory
and punitive damages or $5,000, whichever is greater.
(c.1) Intimidation; penalty.--Any person, including the
victim, with knowledge sufficient to justify making a report or
cooperating with the agency, including possibly providing
testimony in any administrative or judicial proceeding, shall be
free from any intimidation by an employer or by any other person
or entity. Any person who violates this subsection is subject to
civil lawsuit by the person intimidated or the victim wherein
the person intimidated or the victim shall recover treble
compensatory damages, compensatory and punitive damages or
$5,000, whichever is greater.
(d) Immunity.--Any person participating in the making of a
report or who provides testimony in any administrative or
judicial proceeding arising out of a report shall be immune from
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any civil or criminal liability on account of the report or
testimony unless the person acted in bad faith or with malicious
purpose. This immunity shall not extend to liability for acts of
abuse, neglect, exploitation or abandonment, even if such acts
are the subject of the report or testimony.] area agency on
aging.
(e) Mandatory reports.--
(1) 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 AAA shall advise the mandatory reporter of additional
reporting requirements that may pertain under paragraph (2).
Within 48 hours of making the oral report, the mandatory
reporter shall make a written report to the AAA.
(2) A mandatory reporter who has reasonable cause to
suspect that an older adult may be a victim of suspicious
death, serious bodily injury or sexual abuse shall, in
addition to any duty imposed under paragraph (1), 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 AAA shall forward the report to the department
within 48 hours of receipt.
(3) A written mandatory report under this subsection
shall be in a manner and on forms prescribed by the
department. At a minimum, the report shall include the
following information, as well as any additional information
required by regulation:
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(i) Name, age, sex and address of the older adult.
(ii) Name and address of the older adult's legal
representative or next of kin.
(iii) Name and address of the facility, if
applicable.
(iv) 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.
(v) 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.
(vi) 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.
(4) A mandatory reporter shall be trained by the
department or its agent on the requirements to report under
this act.
(f) Coroner.--For a report under subsection (a) or (b) 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.
Section 4. Sections 303 and 304 of the act are repealed:
[Section 303. Investigations of reports of need for protective
services.
(a) Investigation.--It shall be the agency's responsibility
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to provide for an investigation of each report made under
section 302. 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. These regulations
shall provide for the methods of conducting investigations under
this section and shall assure that steps are taken to avoid any
conflict of interest between the investigator and service
delivery functions. Reports and investigations under this
section shall comply with Chapter 7, where applicable.
(b) Investigation involving licensed facilities.--Any report
concerning older adults residing in a State-licensed facility
shall be investigated under procedures developed by the
department in consultation with the State agency licensing such
facility. If the report concerns a resident of a State-licensed
facility for whom the area agency on aging provides ombudsman
services, the ombudsman of the area agency on aging must be
notified.
(c) Unsubstantiated reports.--If, after investigation by the
agency, the report is unsubstantiated, the case shall be closed
and all information identifying the reporter and the alleged
abuser shall be immediately deleted from all records. For
purposes of substantiating a pattern of abuse, neglect,
exploitation or abandonment, the name of the alleged victim and
any information describing the alleged act of abuse, neglect,
exploitation or abandonment may be maintained for a period of
six months under procedures established by the department.
(d) Substantiated reports.--If the report is substantiated
by the agency, or if the client assessment is necessary in order
to determine whether or not the report is substantiated, the
agency shall provide for a timely client assessment if the older
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adult consents to an assessment. Upon completion of the
assessment, written findings shall be prepared which shall
include recommended action. This service plan shall provide for
the least restrictive alternative, encouraging client self-
determination and continuity of care. The service plan shall be
in writing and shall include a recommended course of action,
which may include the pursuit of civil or criminal remedies. If
an older adult found to be in need of protective services does
not consent to a client assessment or the development of a
service plan, the agency may apply to the case the provisions of
section 307.
Section 304. Provision of services; access to records and
persons.
(a) Availability of protective services.--The agency shall
offer protective services under any of the following conditions:
(1) An older adult requests such services.
(2) Another interested person requests such services on
behalf of an older adult.
(3) If, after investigation of a report, the agency
determines the older adult is in need of such services.
(b) Consent by request.--Except as provided in section 307,
an individual shall receive protective services voluntarily. In
no event may protective services be provided under this chapter
to any person who does not consent to such services or who,
having consented, withdraws such consent, unless such services
are ordered by a court, requested by a guardian of the older
adult or provided under section 307. Nothing in this chapter
shall prevent the agency from petitioning for the appointment of
a guardian pursuant to Title 20 of the Pennsylvania Consolidated
Statutes (relating to decedents, estates and fiduciaries).
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(c) 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 agency
may petition the court for an order enjoining such interference.
(d) Access to records.--The agency shall have access to all
records relevant to:
(1) Investigations of reports under section 303.
(2) Assessment of client need.
(3) Service planning when an older adult's need for
protective services has been or is being established.
(4) The delivery of services arranged for under the
service plan developed by the agency to respond to an older
adult's assessed need for specific services.
(e) Access to persons.--The agency shall have access to
older persons who have been reported to be in need of protective
services in order to:
(1) Investigate reports under section 303 and Chapter 7.
(2) Assess client need and develop a service plan for
addressing needs determined.
(3) Provide for the delivery of services by the agency
or other service provider arranged for under the service plan
developed by the agency.
(f) Denial of access to persons.--If the agency is denied
access to an older adult reported to be in need of protective
services and access is necessary to complete the investigation
or the client assessment and service plan, or the delivery of
needed services in order to prevent further abuse, neglect,
exploitation or abandonment of the older adult reported to be in
need of protective services, the agency may petition the court
for an order to require the appropriate access when either of
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the following conditions apply:
(1) The caretaker or a third party has interfered with
the completion of the investigation or the client assessment
and service plan or the delivery of services.
(2) The agency can demonstrate that the older adult
reported to be in need of protective services is denying
access because of coercion, extortion or justifiable fear of
future abuse, neglect, or exploitation or abandonment.
(g) Access by consent.--The agency's access to confidential
records held by other agencies or individuals and the agency's
access to an older adult reported to be in need of protective
services shall require the consent of the older adult or a
court-appointed guardian except as provided for under this
section or section 307.
(h) Denial of access to records.--If the agency is denied
access to records necessary for the completion of a proper
investigation of a report or a client assessment and service
plan, or the delivery of needed services in order to prevent
further abuse, neglect, exploitation or abandonment of the older
adult reported to be in need of protective services, the agency
may petition the court of common pleas for an order requiring
the appropriate access when either of the following conditions
apply:
(1) The older adult has provided written consent for any
confidential records to be disclosed and the keeper of the
records denies access.
(2) The agency can demonstrate that the older adult is
denying access to records because of incompetence, coercion,
extortion or justifiable fear of future abuse, neglect,
exploitation or abandonment.]
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Section 5. The act is amended by adding sections to read:
Section 304.1. Receipt and investigation of reports.
(a) Receipt.--The area agency on aging shall be capable of
receiving reports of older adults in need of protective services
24 hours per day, seven days per week. This capability may
include the use of a local emergency response system or a crisis
intervention agency provided that 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
immediately in a manner set forth by the department.
(b) Investigation.--
(1) The 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 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.
(2) Consent of the older adult is not required in order
to begin investigating reports of abuse, neglect,
exploitation or abandonment.
(c) Access to older adults.--
(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.
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(iii) Provide for the delivery of services by the
AAA or other service provider arranged for under the
service plan.
(2) If the AAA is denied access to an older adult
reported to be in need of protective services, the AAA may
petition the court for an order to require any of the
following:
(i) Access to the older adult.
(ii) A medical evaluation of the older adult.
(iii) A psychiatric or psychological evaluation of
the older adult.
(3) For purposes of paragraph (2), denial of access may
include:
(i) interference by a caretaker or third party with
the completion of the investigation or the assessment and
service plan or the delivery of services; or
(ii) refusal of the older person to permit or
cooperate with the AAA investigation as a result of
coercion, extortion or justifiable fear of future abuse,
neglect, exploitation, abandonment or death.
(d) Access to records.--
(1) The AAA shall, subject to the consent of the older
adult, have access to all records for the purposes of:
(i) Assessing an older adult's need for services.
(ii) Planning and delivery of services.
(iii) Investigating reports.
(2) Records of State agencies, private organizations,
financial institutions, fiduciaries, medical institutions and
practitioners and persons reasonably suspected of engaging in
or facilitating the abuse, neglect, exploitation or
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abandonment of an older adult, which the AAA 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 AAA unless the disclosure
would be prohibited by any other provision of Federal or
State law. Except as provided by a court order, access to
records of financial institutions shall be limited to records
relating to the most recent transaction or transactions that
may comprise financial exploitation and that occurred not
more than 60 calendar days prior to the first transaction
that was reported or 60 calendar days after the last
transaction that was reported.
(3) If the AAA can demonstrate that the older adult has
denied access to the older adult's records because of
incapacity, coercion, extortion or justifiable fear, the AAA
shall have the power to access all records. If the older
adult denying access to records is competent, the AAA may
petition the court for an order to require access.
(4) If any other entity or individual denies access to
the older adult's records, the AAA may petition the court for
an order to require access.
(5) The area agency on aging or the department may
compensate any person requested or ordered to provide records
to the AAA 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 of 1978 (Public Law 96-
630, 12 U.S.C. § 3415).
(e) Investigations involving facilities.--
(1) If the report concerns a facility, the area agency
on aging shall notify the local ombudsman and the licensing
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agency. Any investigations concerning facilities shall be
conducted under procedures developed by the department in
consultation with the State agency with oversight authority
for such facility.
(2) The department and any other State agency shall
share information with one another and with mandatory
reporters, fiduciaries and financial institutions necessary
to ensure the health, safety and welfare of the older adult
and to assist financial institutions and fiduciaries in
exercising their authority to prohibit disbursement of funds
and transactions as provided by section 301.1(c).
(3) Facilities shall take reasonable steps to protect
the older adults following receipt of a report of suspected
abuse, neglect, abandonment or exploitation involving a
facility employee, including a plan of supervision or
suspension.
(f) Investigations involving law enforcement.--
(1) Law enforcement officials, the area agency on aging
and mandatory reporters shall coordinate their respective
investigations and shall advise each other and provide any
applicable additional information on an ongoing basis.
(2) Upon receiving a report that falls into any of the
following categories, the AAA shall immediately notify law
enforcement:
(i) Suspicious death.
(ii) Serious bodily injury.
(iii) Sexual abuse.
(3) Following a referral to law enforcement:
(i) The AAA shall contact law enforcement to obtain
information about any actions taken and the outcomes,
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including any decisions regarding criminal charges.
(ii) Law enforcement shall provide this information
to the extent that it is available.
(iii) To the extent a law enforcement agency
exercises discretion not to 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.
(iv) The AAA shall report this information to the
department in a manner prescribed by the department.
(g) Unsubstantiated reports.--If, after investigation by the
area agency on aging, the report is unsubstantiated, the case
shall be closed. For purposes of substantiating a pattern of
abuse, neglect, exploitation or abandonment, case records shall
be maintained for six months.
(h) Substantiated reports.--
(1) If, after investigation by the area agency on aging,
the report is substantiated, the AAA, in conjunction with the
older adult, the older adult's caregiver, including the
healthcare provider or representative from the facility,
shall develop a service plan.
(2) The service plan shall encourage self-determination
and continuity of care in the least restrictive setting.
(3) For purposes of substantiating a pattern of abuse,
neglect, exploitation or abandonment, case records shall be
maintained for three years.
(4) The AAA may pursue civil or criminal remedies.
(5) An older adult shall not be found to be abused or
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neglected solely on the grounds of environmental factors that
are beyond the control of the older adult or the caretaker,
such as inadequate housing, furnishings, income, clothing or
medical care.
Section 304.2. Provision of protective services.
(a) Availability of protective services.--The area agency on
aging shall offer protective services under any of the following
conditions:
(1) An older adult requests protective services.
(2) Another interested person requests protective
services on behalf of an older adult.
(3) After investigation of a report, the AAA determines
the older adult is in need of protective services.
(b) Consent by request.--An older adult shall receive
protective services voluntarily, unless protective services are
ordered by a court of competent jurisdiction or requested by the
older adult's legal representative.
(c) Interference with protective services.--If any person
interferes with the provision of protective services or
interferes with the right of an older adult to consent to
provision of protective services, the area agency on aging may
petition the court for an order enjoining such interference.
(d) Financial obligations; liabilities and payments.--All
older adults receiving services and all agencies providing
protective services under this act shall comply with the
following provisions regarding liability for the payment of
services:
(1) Funding to provide or make available protective
services under this act shall not be used in place of any
public or private entitlements or benefits for which the
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older adult receiving protective services under this act is
or may be eligible.
(2) Funding available to local protective services
agencies under this act may be used to cover the costs 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, as
appropriate, arranging for services for other persons in
the household unit in order to reduce, correct or
eliminate abuse, neglect, exploitation or abandonment of
an older adult.
(viii) Purchasing, on a temporary basis, protective
services determined by a service plan to be necessary to
reduce, correct or eliminate abuse, neglect, exploitation
or abandonment of an older adult when such protective
services are not available within the existing resources
of the AAA or other appropriate provider. Purchase of
protective services under this subparagraph shall be
limited to a 30-day period, which period may be renewed
with adequate justification under regulations issued by
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the department.
(3) Older adults receiving protective services shall not
be required to pay a fee for any protective services received
by other older adults when the receipt of such protective
services by others is not subject to cost sharing.
Section 6. Sections 305 and 306 of the act are repealed:
[Section 305. Immunity from civil and criminal liability.
In the absence of willful misconduct or gross negligence, the
agency, the director, employees of the agency, 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.
Section 306. Confidentiality of records.
(a) General rule.--Information contained in reports, records
of investigation, client assessment and service plans shall be
considered confidential and shall be maintained under
regulations promulgated by the department to safeguard
confidentiality. Except as provided below, this information
shall not be disclosed to anyone outside the agency other than
to a court of competent jurisdiction or pursuant to a court
order.
(b) Limited access to the agency's protective services
records.--
(1) In the event that an investigation by the agency
results in a report of criminal conduct, law enforcement
officials shall have access to all relevant records
maintained by the agency or the department.
(2) In arranging specific services to carry out service
plans, the agency may disclose to appropriate service
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providers such information as may be necessary to initiate
the delivery of services.
(3) A subject of a report made under section 302 may
receive, upon written request, all information contained in
the report except that prohibited from being disclosed by
paragraph (4).
(4) The release of information that would identify the
person who made a report of suspected abuse, neglect,
exploitation or abandonment or person who cooperated in a
subsequent investigation, is hereby prohibited unless the
secretary can determine that such a release will not be
detrimental to the safety of such person.
(5) When the department is involved in the hearing of an
appeal by a subject of a report made under section 302, the
appropriate department staff shall have access to all
information in the report record relevant to the appeal.
(6) For the purposes of monitoring agency performance,
appropriate staff of the department may access agency
protective services records.]
Section 7. Section 307 of the act 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.
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
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whenever the agency determines that a delay until normal court
hours would significantly increase the danger the older adult
faces.]
(1) 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.
(2) The court of common pleas shall grant the AAA'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.
(3) The courts of common pleas of each judicial district
shall ensure that a judge or magisterial district judge is
available on a 24-hour-a-day, 365-days-a-year basis to accept
and rule on petitions for emergency court orders under this
section whenever the AAA 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 such protective services as are 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, such counsel shall be
appointed by the court.
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(d) Forcible entry.--[Where it is necessary to forcibly
enter premises after obtaining a court order, a peace officer
may do so, accompanied by a representative of the agency.] If it
is necessary to forcibly enter a 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 [agency] area
agency on aging shall take reasonable steps to [assure] ensure
that while the [person is receiving] older adult receives
protective services under an emergency court order, the health
and safety needs of any of the [person's] older adult's
dependents are met and that personal property and the dwelling
the [person] older adult occupies are secure.
[(f) Exclusion of remedy.--Nothing in this chapter shall be
interpreted to deny any older adult access to the emergency
medical services or police protection that would be provided to
anyone, regardless of age, in similar circumstances.]
Section 8. Sections 308, 309, 310, and 311 of the act are
repealed:
[Section 308. Individual rights.
(a) Rights of protective services clients.--The agency shall
observe the following minimum requirements to safeguard the
rights of an older adult who is reported to be in need of
protective services:
(1) The agency shall discreetly notify the older person
during the investigation that a report has been made and
shall provide the person with a brief summary of the nature
of the report.
(2) As provided under section 306(b)(3), the older adult
may request, and the agency shall provide, additional
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information contained in the report.
(3) Any denial of services by the department or an
authorized agency under this chapter 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.
(4) Nothing in this act shall limit the right of any
older person to file a petition pursuant to the act of
October 7, 1976 (P.L.1090, No.218), known as the Protection
From Abuse Act.
(b) Rights of alleged abusers.--An individual who is alleged
in a protective services report to be a perpetrator of the
abuse, neglect, exploitation or abandonment of an older adult
shall be entitled to the following if the report is
substantiated by the agency:
(1) Such an individual shall be notified by the agency
at the conclusion of the investigation of the report that
allegations have been made and shall be given a brief summary
of the allegations.
(2) As provided under section 306(b)(3), the alleged
perpetrator may request, and the agency shall provide,
additional information contained in the report.
(3) An alleged perpetrator is entitled to file an appeal
with the department under 1 Pa. Code Part II (relating to
general rules of administrative practice and procedure) to
challenge the agency's finding resulting from the
investigation of a report made under section 303.
Section 309. Financial obligations; liabilities and payments.
All individuals receiving services and all agencies providing
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services under this chapter shall comply with the following
provisions regarding liability for the payment of services:
(1) Funding to provide or make available protective
services under this chapter shall not supplant any public and
private entitlements or resources for which persons receiving
protective services under this chapter are or may be
eligible, and shall not be available until such persons have
exhausted their eligibility and receipt of benefits under
said public and private entitlements or resources.
(2) Funding available to local protective services
agencies under this chapter may be used to cover the costs of
activities including, but not limited to, the following:
(i) Administering protective services plans required
under section 301(c).
(ii) Receiving and maintaining records of reports of
abuse under section 302.
(iii) Conducting investigations of reported abuse
under section 303.
(iv) Carrying out client assessments and developing
service plans under section 303.
(v) Petitioning the court under sections 304 and
307.
(vi) Providing emergency involuntary intervention
under section 307.
(vii) Arranging for available services needed to
carry out service plans, which may include, as
appropriate, arranging for services for other household
members in order to reduce, correct or eliminate abuse,
neglect, exploitation or abandonment of an older adult.
(viii) Purchasing, on a temporary basis, services
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