Bill Text: PA SB699 | 2009-2010 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Providing for protection of abused, neglected, exploited or abandoned adults; establishing a uniform Statewide reporting and investigative system for suspected abuse, neglect, exploitation or abandonment of adults; providing for protective services; and prescribing penalties.

Spectrum: Bipartisan Bill

Status: (Passed) 2010-10-07 - Act No. 70 [SB699 Detail]

Download: Pennsylvania-2009-SB699-Introduced.html

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PRINTER'S NO. 802
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No. 699 Session of2009
INTRODUCED BY VANCE, ERICKSON, MELLOW, WASHINGTON, BAKER, O'PAKE, ORIE, ALLOWAY, STACK, BROWNE, TARTAGLIONE, RAFFERTY, MUSTO, ROBBINS, TOMLINSON, COSTA, WAUGH, PICCOLA, KASUNIC, KITCHEN, PIPPY, WONDERLING, FERLO, BOSCOLA, EICHELBERGER, FONTANA, GREENLEAF, LOGAN, YAW, FARNESE AND LEACH, APRIL 1, 2009
REFERRED TO AGING AND YOUTH, APRIL 1, 2009
AN ACT
Providing for protection of abused, neglected, exploited or
abandoned adults; establishing a uniform Statewide reporting
and investigative system for suspected abuse, neglect,
exploitation or abandonment of adults; providing for
protective services; and prescribing penalties.
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Legislative policy.
Section 103. Definitions.
Chapter 3. Administration
Section 301. Duties of department and agencies.
Section 302. Reporting.
Section 303. Investigations of reports of need for protective
services.
Section 304. Provision of services.
Section 305. Immunity from civil and criminal liability.
Section 306. Confidentiality of records.
Section 307. Involuntary intervention by emergency court order.
Section 308. Rights of protective services clients.
Section 309. Financial obligations, liabilities and payments.
Chapter 5. Reporting Suspected Abuse by Employees
Section 501. Reporting by employees.
Section 502. Reports to department and coroner or medical
examiner.
Section 503. Investigation.
Section 504. Restrictions on employees.
Section 505. Confidentiality of and access to confidential
reports.
Section 506. Penalties.
Section 507. Immunity.
Chapter 7. Miscellaneous Provisions
Section 701. Regulations.
Section 702. Report.
Section 703. Repeals.
Section 704. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the Adult
Protective Services Act.
Section 102. Legislative policy.
It is declared the policy of this Commonwealth that:
(1) Adults who lack the capacity to protect themselves
and are at imminent risk of abuse, neglect, exploitation or
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abandonment must have access to services necessary to protect
their health, safety and welfare.
(2) Adults have the right to make choices, subject to
the laws and regulations of the Commonwealth, regarding their
lifestyles, relationships, bodies and health, even when those
choices present risks to themselves or their property.
(3) Adults have the right to refuse some or all
protective services.
(4) Information about protective services should be
provided in a safe place and in a safe, understandable and
responsive manner.
(5) The Commonwealth must provide for the detection,
prevention, reduction and elimination of abuse, neglect,
exploitation and abandonment and establish a program of
protective services for adults in need of them.
(6) Adults have the right to receive services in the
most integrated settings and in the manner least restrictive
of individual liberties.
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 adult by a caregiver.
"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 caregiver of goods or
services which are necessary to maintain physical or mental
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health.
(3) Sexual harassment, rape or "abuse" as defined in 23
Pa.C.S. § 6102 (relating to definitions).
The term does not include environmental factors which are beyond
the control of an adult or caregiver, including, but not limited
to, inadequate housing, furnishings, income, clothing or medical
care.
"Administrator." The person responsible for the
administration of a facility. The term includes a person
responsible for employment decisions or an independent
contractor.
"Adult." A resident of this Commonwealth between 18 and 59
years of age who has a physical or mental impairment that
substantially limits one or more major life activities.
"Adult in need of protective services." An adult who needs
the assistance of another person to obtain protective services
in order to prevent imminent risk to person or property.
"Agency." A local contracted provider of protective
services.
"Assessment." Social, physical and psychological findings
along with a description of the person's current resources and
needs.
"Caregiver." An individual or institution that has assumed
the responsibility for the provision of care needed to maintain
the physical or mental health of an 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 the responsibility
would not otherwise exist in law.
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"Court." A court of common pleas or a district magistrate
court, where applicable.
"Department." The Department of Public Welfare of the
Commonwealth.
"Employee." An individual who is employed by a facility. The
term includes:
(1) A contract employee who has direct contact with
residents or unsupervised access to their personal living
quarters.
(2) A person who is employed or who enters into a
contractual relationship to provide care to an adult for
monetary consideration in the adult's place of residence.
"Exploitation." An act or course of conduct by a caregiver
or other person against an adult or an adult's resources,
without the informed consent of the adult or with consent
obtained through misrepresentation, coercion or threats of
force, that results in monetary, personal or other benefit, gain
or profit for the perpetrator or monetary or personal loss to
the adult.
"Facility." The term includes, but is not limited to:
(1) An assisted living residence as defined in section
1001 of the act of June 13, 1967 (P.L.31, No.21), known as
the Public Welfare Code.
(2) 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.
(3) A home health care agency as defined in section
802.1 of the act of July 19, 1979 (P.L.130, No.48), known as
the Health Care Facilities Act.
(4) An intermediate care facility for people with mental
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retardation.
(5) 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.
(6) 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.
(7) A personal care home as defined in section 1001 of
the act of June 13, 1967 (P.L.31, No.21), known as the Public
Welfare Code.
(8) An organization or group of people that uses public
funds and is paid, in part, to provide care and support to
adults in a licensed or unlicensed setting.
(9) A residential treatment facility.
"Incident Reporting System." Home and Community Services
Information System (HCSIS) or its successor.
"Intimidation." An act or omission by a 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 with the administration of this act or any law
intended to protect adults from mistreatment.
"Law enforcement official." These shall include:
(1) A police officer of a municipality.
(2) A district attorney.
(3) The Pennsylvania State Police.
(4) A county sheriff.
(5) The Attorney General.
"Least restrictive alternative." The least intrusive service
or environment that can effectively and safely address the
adult's needs and preferences.
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"Most integrated setting." A setting that enables
individuals with disabilities to interact with individuals who
do not have disabilities to the fullest extent possible.
"Neglect." The failure to provide for oneself or the failure
of a caregiver to provide goods or services essential to avoid a
clear and serious threat to the physical or mental health of an
adult. The term does not include environmental factors that are
beyond the control of an adult or the caregiver, including, but
not limited to, inadequate housing, furnishings, income,
clothing or medical care.
"Protective services." Those activities, resources and
supports provided to adults under this act to detect, prevent,
reduce or eliminate abuse, neglect, exploitation and
abandonment.
"Recipient." An adult who receives care, services or
treatment in or from a facility.
"Secretary." The Secretary of Public Welfare of the
Commonwealth.
"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.
"Serious injury." An injury that:
(1) causes a person severe pain; or
(2) significantly impairs a person's physical or mental
functioning, either temporarily or permanently.
"Service plan." A written plan that:
(1) Is cooperatively developed by an agency staff, an
adult in need of protective services or the adult's appointed
guardian, if any, and other family members and advocates when
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appropriate.
(2) Where possible, is based on multidisciplinary,
comprehensive written assessments conducted by professionals
who have met with the adult in need of protective services
and are familiar with their situation.
(3) Provides for services in the most integrated setting
and utilizes least restrictive alternatives.
(4) Describes identified needs, goals to be achieved and
specific services to support goal attainment, with regular
follow-up and predetermined reassessment of client progress.
(5) Is updated as needed.
"Sexual abuse." Intentionally, knowingly or recklessly
causing or attempting to cause rape, involuntary deviate sexual
intercourse, sexual assault, statutory sexual assault,
aggravated indecent assault or incest, as defined by 18 Pa.C.S.
(relating to crimes and offenses).
CHAPTER 3
ADMINISTRATION
Section 301. Duties of department and agencies.
(a) General rule.--
(1) The department shall administer the adult protective
services program in a manner designed to utilize least
restrictive alternatives and to ensure services are provided
in the most integrated setting.
(2) The department shall, in consultation with other
appropriate State agencies, define the geographic areas to be
served by agencies and shall select those agencies based upon
a competitive bidding process. Successful bidders must:
(i) Demonstrate knowledge of and experience working
with adults.
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(ii) Be separate from agencies providing direct
services to adults and from county mental health and
mental retardation programs.
(iii) Demonstrate knowledge of service delivery
principles important to adults and their families such as
individual choice and use of the least restrictive
alternative.
(iv) Demonstrate that the program will be advised by
a body that includes at least 51% representation of
adults and their family members.
(v) Include letters of support that show
collaboration with entities which advocate for adults.
(3) The department shall establish, by regulation,
procedures to ensure no conflict of interest in the provision
of adult protective services.
(4) The department shall conduct an ongoing campaign
designed to inform and educate adults, families, caregivers,
professionals and the general public about the need for and
availability of protective services under this chapter. The
campaign shall require facilities to post notice of the
availability of protective services and to provide the notice
to recipients and their families. The department shall
consult with other departments of the Commonwealth on the
design and implementation of the ongoing public awareness
campaign. The department shall also consider the concerns of
agencies and entities identified by them under subsection
(b).
(5) The department shall establish, by regulation,
minimum standards of training and experience that agencies
funded by the department shall follow in the selection and
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assignment of staff for the provision of protective services.
The standards shall require agencies to collaborate with
adults, their families and advocates, and the standards shall
be included in developing and delivering training.
(6) The department shall ensure that agencies have
access to the incident reporting system.
(b) Agency duties.--Each agency shall submit a proposal that
includes a protective services plan. The plan shall:
(1) Describe the implementation of this chapter,
including, but not limited to, 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) Describe the methods that the agency, its designees
and service providers will use to assure the privacy of all
adults receiving services and the confidentiality of all
records.
(3) List all other social service entities, whether
public or private, that have been identified by the agency as
having substantial contact with potential victims or
perpetrators of abuse, neglect, exploitation and abandonment.
(4) Ensure that the entities have information regarding
the unique aspects of various disabilities.
The agency shall submit the list to the department for purposes
of the public information campaign under subsection (a).
Section 302. Reporting.
(a) General rule.--A person having reasonable cause to
believe that an adult is in need of protective services may
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report such information to the agency. Where applicable, reports
shall comply with the provisions of Chapter 5.
(b) Receiving reports.--The agency shall be capable of
receiving reports of adults in need of protective services 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) Screening.--A person who receives a report shall screen
the report during and immediately following receipt of the
report to assign it to one of the following referral categories:
(1) Priority. A report placed in this category shall
require immediate attention because specific details in the
report indicate the possibility that the adult reported to
need protective services is at imminent risk of death or
serious injury or serious bodily injury. The person receiving
a priority report shall immediately contact a protective
services caseworker and provide the caseworker with the
information contained in the report.
(2) Nonpriority. A report shall be placed in this
category when it does not appropriately fall within the
priority category and, therefore, does not require immediate
attention by the agency. A report in this category shall be
referred to a protective services caseworker of an agency
within the normal business hours of the agency's current or
next day of business under the agency's established
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procedures for referring these reports.
(3) Another planning and service area. A report in which
the adult who is the subject of the report does not reside in
the planning and service area of the agency or, at that time,
is not in the planning and service area shall be placed in
this category. The report shall be referred to the agency
that has the designated responsibility for protective
services in the planning and service area in which the adult
reported to be in need of protective services is located at
the time of the report. A report in this category shall also
meet the criteria for placement in one of the other
categories in this subsection. The provisions for referral
for the other category shall apply to a referral to another
planning and service area.
(4) No need for protective services. A report shall be
placed in this category when the person reported to be in
need of protective services meets either of the following
criteria:
(i) has the capacity to perform or obtain, without
help, services necessary to maintain physical or mental
health;
(ii) is not at imminent risk or danger to his person
or property.
A report in this category shall be referred to a protective
services caseworker of the agency within the normal business
hours of the agency's current or next day of business. The
protective services caseworker shall review the details of
the report and take all steps necessary to confirm or reject
the categorization of no need for protective services. If the
caseworker confirms the screening categorization, and upon
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the request of any interested party and without objection by
the adult appropriate referrals shall be made to other
entities. The protective services case shall then be closed.
If the caseworker rejects the categorization, the report
shall be placed in the appropriate category and shall be
handled accordingly. A report may not be placed in this
category if the adult is temporarily relocated to a safe
environment and will return to the original abusive situation
or to a new location which has not been determined to be
safe.
(d) Retaliatory action.--
(1) Any person who makes a report or cooperates with the
agency, including providing testimony in any administrative
or judicial proceeding, and any adult in need of protective
services shall not be subject to any discriminatory,
retaliatory or disciplinary action by an employer or by any
other person or entity.
(2) Any person who violates this subsection is subject
to a civil action by the reporter or the adult in need of
protective services, in which action the reporter or adult in
need of protective services shall recover treble compensatory
damages, compensatory and punitive damages or $5,000,
whichever is greater.
(e) Intimidation.--
(1) A person, including an adult in need of protective
services, with knowledge sufficient to justify making a
report or cooperating with an agency, including possibly
providing testimony in an administrative or judicial
proceeding, shall not be subject to any intimidation by an
employer or by any other person or entity.
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(2) A person who violates this subsection is subject to
civil action by the reporter or the adult in need of
protective services, in which action the reporter or adult in
need of protective services shall recover treble compensatory
damages, compensatory and punitive damages or $5,000,
whichever is greater.
(f) Immunity.--
(1) A person who participates in the making of a report
or who provides testimony in an administrative or judicial
proceeding arising out of a report shall be immune from any
civil or criminal liability, subject to paragraph (2), on
account of the report or testimony, unless the person acted
in bad faith or with malicious purpose.
(2) The immunity established under paragraph (1) shall
not extend to liability for an act of abuse, neglect,
exploitation or abandonment even if such act is the subject
of the report or testimony.
Section 303. Investigations of reports of need for protective
services.
(a) Investigation.--
(1) An agency shall investigate each report made under
section 302.
(2) The investigation shall be initiated immediately for
a priority report, and to the extent feasible, the agency
shall conduct a face-to-face interview with the reported
adult in need of protective services.
(3) The investigation shall be initiated within 72 hours
for a nonpriority report.
(4) The department shall adopt regulations providing for
the methods of conducting investigations under this section
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and shall assure that steps are taken to avoid any conflict
of interest between the investigator and service delivery
functions.
(5) Reports and investigations conducted under this
section shall comply with the provisions of Chapter 5, where
applicable.
(b) Investigation involving licensed facilities.--
(1) A report concerning adults residing in a State-
licensed facility shall be reported to the appropriate State
licensing department and investigated under procedures
developed by the department in consultation with the bureau
responsible for the licensure of the facility.
(2) The protective services agency may seek judicial
relief to require the facility to protect the health and
safety of the adult when the licensed program is believed to
continue to jeopardize the adult's health and safety through
evidence of risk substantiated.
(c) Unsubstantiated reports.--If after investigation by the
agency a report is unsubstantiated, the case shall be closed,
and all information shall be maintained for a period of one year
under procedures established by the department.
(d) Substantiated reports.--
(1) The agency shall provide for a timely assessment of
the adult if a report is substantiated by the agency or if an
assessment is necessary in order to determine whether the
report is substantiated. An adult may refuse the assessment.
(2) Upon completion of the assessment, written findings
shall be prepared that include recommended action. A service
plan shall be developed and shall:
(i) Provide for the least restrictive alternative
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and encourage choice and continuity of care.
(ii) Assure that services and supports are provided
in the most integrated setting.
(iii) Absent a court order, not include the
relocation of the adult unless the adult consents.
(iv) Be written in plain language whenever possible
and prepared in a manner which can be easily understood
by an adult in need of protective services or that
adult's appointed guardian.
(v) Be in writing and include a recommended course
of action that may include the pursuit of civil or
criminal remedies.
(3) If an adult who is found to be in need of protective
services refuses an 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.
(a) Availability of protective services.--Once need is
determined, an agency shall offer protective services if an
adult requests services or an interested person requests
services on behalf of an adult.
(b) Consent by request.--
(1) Except as provided in section 307, an adult shall
only receive protective services voluntarily. In no event may
protective services be provided under this chapter to an
adult who refuses consent to the services or who, having
consented, withdraws the consent, unless the services are
ordered by a court or provided under section 307.
(2) Nothing in this chapter shall be construed to
prevent an agency from petitioning for the appointment of a
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guardian pursuant to 20 Pa.C.S. (relating to decedents,
estates and fiduciaries).
(c) Interference with services.--If any person interferes
with the provision of services or the right of an adult to
consent to provision of services, the agency may petition the
court for an order enjoining the interference.
(d) Access to records.--An agency shall have access to all
records relevant to:
(1) Investigations of reports under section 303.
(2) Assessment of client need.
(3) Development of a service plan when an adult's need
for protective services has been or is being established.
(4) Delivery of services arranged for under the service
plan developed by the agency to respond to an adult's
assessed need for specific services.
(e) Access to persons.--An agency shall have access to
adults who have been reported to be in need of protective
services in order to:
(1) Investigate reports under section 303 and Chapter 5.
(2) Assess needs and develop a service plan for
addressing them.
(3) Provide for the delivery of services by the agency
or other service provider arranged for under the service
plan.
(f) Denial of access to persons.--If the agency is denied
access to an adult reported to be in need of protective services
and access is necessary to complete the investigation or the
assessment and service plan or the delivery of needed services
in order to prevent further abuse, neglect, exploitation or
abandonment of the adult, the agency may petition the court for
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an order to require the appropriate access when either of the
following conditions apply:
(1) The caregiver or a third party has interfered with
the completion of the investigation or the assessment and
service plan or the delivery of services.
(2) The agency can demonstrate that the adult denies
access because of coercion, extortion or justifiable fear of
further abuse, neglect, exploitation or abandonment.
(g) Access by consent.--An agency's access to confidential
records held by other entities or individuals or an adult
reported to be in need of protective services shall require the
consent of the 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 completion of a proper
investigation of a report, assessment, service plan or the
delivery of needed services in order to prevent further abuse,
neglect, exploitation or abandonment of the 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 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 adult denies
access to records because of incompetence, coercion,
extortion or justifiable fear of future abuse, neglect,
exploitation or abandonment.
Section 305. Immunity from civil and criminal liability.
In the absence of willful misconduct or gross negligence, an
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agency, its director and employees, 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 actions 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, assessment and service plans shall be
considered confidential and shall be maintained under
regulations promulgated by the department to safeguard
confidentiality. Except as otherwise provided in subsection (b),
this information shall not be disclosed to anyone outside the
agency other than to a court of competent jurisdiction pursuant
to a court order.
(b) Limited access to agency's protective services
records.--
(1) In the event that an investigation by an agency
results in the discovery of suspected criminal conduct, law
enforcement officials shall be given access to all relevant
records maintained by the agency or the department.
(2) In arranging specific services to carry out service
plans, an agency may disclose to appropriate service
providers such information as may be necessary to initiate
the delivery of services.
(3) An adult who is the subject of a report made under
section 302 may receive, upon written request, all
information contained in the report except that prohibited
from disclosure under paragraph (4).
(4) The release of information that would identify a
person who made a report of suspected abuse, neglect,
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exploitation or abandonment or who cooperated in a subsequent
investigation is prohibited unless the secretary can
determine that such a release will not be detrimental to the
safety of the person.
(5) When the department is involved in the hearing of an
appeal by an adult who is the subject of a report made under
section 302, the appropriate department staff shall be given
access to all information in the report record relevant to
the appeal.
(6) For the purpose of monitoring agency performance,
appropriate staff of the department may access agency
protective services records.
Section 307. Involuntary intervention by emergency court order.
(a) Emergency petition.--
(1) Where there is clear and convincing evidence that,
if protective services are not provided, the adult is at
imminent risk of death, serious injury or serious bodily
injury, the agency may petition the court for an emergency
order to provide the necessary services.
(2) The court 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-day-a-year basis to accept
and decide on petitions for an emergency court order under
this section whenever the agency determines that a delay
until normal court hours would significantly increase the
danger the adult faces.
(b) Limited order.--The court, after finding clear and
convincing evidence of the need for an emergency order, shall
order only such services as are necessary to remove the
conditions creating the established need.
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(c) Right to counsel.--In order to protect the rights of an
adult in need of protective services, an emergency court order
under this section shall provide that the adult has the right to
legal counsel which shall be appointed by the court at public
expense.
(d) Forcible entry.--Where it is necessary to forcibly enter
a premises, law enforcement shall obtain a court order and may
be accompanied by a representative of an agency.
(e) Health and safety requirements.--An agency shall take
reasonable steps to assure that while an adult is receiving
services under an emergency court order, the health and safety
needs of any of the adult's dependents are met and that personal
property and the dwelling the adult occupies are secure.
(f) Nonrestrictive setting.--In those cases in which an
adult must be relocated, the court shall order the adult to be
relocated to the most integrated setting and the least
restrictive alternative that will ensure the adult's health and
safety and appropriate care.
(g) Exclusion of remedy.--Nothing in this chapter shall be
construed to deny an adult access to emergency medical services
or police protection that would be provided to anyone,
regardless of age, in similar circumstances.
Section 308. Rights of protective services clients.
(a) Minimum requirements.--The agency shall observe the
following minimum requirements to safeguard the rights of an
adult who is reported to be in need of protective services:
(1) The agency shall to the extent possible, notify the
adult privately during the investigation that a report has
been made and provide the adult with a brief summary of the
nature of the report.
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(2) As provided under section 306(b)(3), the adult may
request and the agency shall provide additional information
contained in the report.
(3) An appeal of a denial of services by the department
or an authorized agency under this chapter shall be conducted
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.
(b) Construction.--Nothing in this act shall be construed to
limit the right of an adult to file a petition pursuant to 23
Pa.C.S. Ch. 61 (relating to protection from abuse).
Section 309. Financial obligations, liabilities and payments.
An adult receiving services and each agency providing
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:
(i) Supplant any public and private entitlements or
resources for which adults receiving protective services
under this chapter are or may be eligible.
(ii) Be available until an adult has exhausted the
adult's eligibility and receipt of benefits under public
and private entitlements or resources.
(2) (i) The obligation of the Commonwealth or a county
to provide funding for services provided pursuant to this
chapter shall be entirely discharged by the
appropriations made to the department or an agency.
(ii) Provided that the agency has met its
responsibility under the law, no action at law or equity
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may be instituted in a court to require the department,
agency, county or Commonwealth to provide benefits or
services under this chapter for which appropriations from
the Commonwealth or counties are not available.
(3) Protective services clients receiving the same
services provided to others under an agency services plan
shall not be required to pay a fee for any services not
subject to cost sharing for other adults.
CHAPTER 5
REPORTING SUSPECTED ABUSE BY EMPLOYEES
Section 501. Reporting by employees.
(a) Mandatory reporting to agency.--
(1) An employee or an administrator who has reasonable
cause to suspect that a recipient is a victim of abuse or
neglect shall immediately make an oral report to an agency.
If applicable, the agency shall advise the employee or
administrator of additional reporting requirements that may
pertain under subsection (b). An employee shall notify the
administrator immediately following the report to the agency.
(2) Within 48 hours of making the oral report, the
employee or administrator shall make a written report to the
agency. The agency shall notify the administrator that a
report of abuse has been made with the agency.
(3) The provisions of this section shall be satisfied
when the administrator or employee submits a report to the
incident reporting system. Nothing in this subsection shall
prohibit an employee or administrator who has reasonable
cause to suspect that a recipient is a victim of abuse or
neglect from also making a report to the agency.
(b) Mandatory reports to law enforcement officials.--
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(1) An employee or an administrator who has reasonable
cause to suspect that a recipient is the victim of sexual
abuse, serious injury or serious bodily injury or that a
death is suspicious shall, in addition to contacting the
agency and the department, immediately contact appropriate
law enforcement officials to make an oral report. An employee
shall notify the administrator immediately following the
report to law enforcement officials, unless such notification
would jeopardize the investigation or subject the recipient
to further risk.
(2) Within 48 hours of making the oral report, the
employee and the administrator shall make a joint written
report to appropriate law enforcement officials.
(3) The law enforcement officials shall notify the
administrator that a report has been made with the law
enforcement officials, unless such notification would
jeopardize the investigation or subject the recipient to
further risk.
(4) The employee may request the administrator to make
or to assist the employee to make the oral and written
reports to law enforcement officials required by this
subsection.
(c) Contents of report.--A written report under this section
shall be submitted in a manner and on forms prescribed by the
department. The report shall include, at a minimum, the
following information:
(1) Name, age and address of the recipient.
(2) Name and address of the recipient's guardian,
attorney-in-fact or next of kin.
(3) Name and address of the facility.
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(4) Nature of the alleged offense.
(5) Any specific comments or observations that are
directly related to the alleged incident and those involved.
Section 502. Reports to department and coroner or medical
examiner.
(a) Department.--
(1) Within 48 hours of receipt of a written report under
section 501(a) involving sexual abuse, serious injury,
serious bodily injury or suspicious death, the agency shall
transmit a written report to the department. Supplemental
reports shall be transmitted as they are obtained by the
agency.
(2) A report under this subsection shall be made in a
manner and on forms prescribed by the department. The report
shall include, at a minimum, that information required to be
submitted under section 501.
(b) Coroner or medical examiner.--For a report under section
501(a) concerning the death of a recipient, if there is
reasonable cause to suspect that the recipient died as a result
of abuse or neglect, the agency shall give the oral report and
forward a copy of the written report to the appropriate coroner
or medical examiner within 24 hours.
Section 503. Investigation.
(a) Law enforcement officials.--Upon receipt of a report
under section 501(b), law enforcement officials shall conduct an
investigation to determine what criminal charges, if any, will
be filed.
(b) Notification.--If law enforcement officials have
reasonable cause to suspect that a recipient has suffered sexual
abuse, serious injury, serious bodily injury or a suspicious
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death, law enforcement officials shall notify the agency, unless
such notification would jeopardize the investigation or subject
the recipient to further risk.
(c) Cooperation.--To the fullest extent possible, law
enforcement officials, facilities and agencies shall coordinate
their respective investigations and advise each other and
provide any applicable additional information on an ongoing
basis.
(d) Further notification.--
(1) Law enforcement officials shall notify an agency and
facility of a decision regarding criminal charges.
(2) Upon being notified by law enforcement, the agency
shall notify the department and both shall keep a record of
any decision regarding criminal charges.
(e) Compliance with Chapter 3.--In addition to the
provisions of this section, the agency shall comply with the
provisions of Chapter 3.
Section 504. Restrictions on employees.
(a) Plan of supervision.--
(1) On notification that an employee is alleged to have
committed abuse, the facility shall immediately suspend the
employee or where appropriate and subject to approval by the
agency and by the appropriate State licensing department with
regulatory authority over the facility, implement a plan of
supervision.
(2) A plan of supervision for a home health care agency
shall include periodic random direct inspections of
recipients by an employee who has been continuously employed
by the facility for a period of at least one year.
(b) Prohibition.--
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(1) On the filing of criminal charges against an
employee, the appropriate State licensing department that
regulates or has fiscal authority over the facility shall
order the facility to immediately prohibit the employee from
having access to recipients at the facility.
(2) If the employee is a director, operator,
administrator or supervisor, the employee shall be subject to
restrictions deemed appropriate by the appropriate State
licensing department that regulates or has fiscal authority
over the facility to assure the safety of the recipients of
the facility.
Section 505. Confidentiality of and access to confidential
reports.
A report under this chapter shall be made available in the
following circumstances:
(1) Information may be disclosed to a court of competent
jurisdiction under a court order.
(2) If an investigation by an agency or law enforcement
results in a report of criminal conduct, law enforcement
officials shall have access to relevant records maintained by
the agency or the department.
(3) In arranging specific services to effect service
plans, an agency may disclose to appropriate service
providers information necessary to initiate the delivery of
services.
(4) A subject of a report may receive, upon written
request, information contained in the report except that
prohibited from being disclosed under paragraph (5).
(5) Except for reports to law enforcement officials, the
release of information that would identify the person who
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made a report under this chapter or who cooperated in a
subsequent investigation is prohibited. Law enforcement
officials shall treat all reporting sources as confidential
information.
(6) When the department is involved in the hearing of an
appeal by a subject of a report, the appropriate department
staff shall be given access to information in the report
record relevant to the appeal.
(7) For the purposes of monitoring agency performance,
appropriate staff of the department may be given access to
agency protective service records.
Section 506. Penalties.
(a) Administrative.--
(1) An administrator who intentionally or willfully
fails to comply or obstructs compliance with the provisions
of this chapter or intimidates or commits a retaliatory act
against an employee 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
under paragraph (3).
(2) A facility owner that intentionally or willfully
fails to comply with or obstructs compliance with this
chapter or that intimidates or commits a retaliatory act
against an employee who complies in good faith with this
chapter commits a violation of this chapter and shall be
subject to an administrative penalty under paragraph (3).
(3) The Commonwealth agency or Commonwealth agencies
which regulate a facility shall have jurisdiction to
determine violations of this chapter and may issue an order
assessing a civil penalty of not more than $2,500. An order
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under this paragraph is subject to 2 Pa.C.S. Ch. 5 Subch. A
(relating to practice and procedure of Commonwealth agencies)
and Ch. 7 Subch. A (relating to judicial review of
Commonwealth agency action).
(b) Criminal.--
(1) An administrator who intentionally or willfully
fails to comply or obstructs compliance with this chapter
commits a misdemeanor of the third degree and shall, upon
conviction, be sentenced to pay a fine of $2,500 or to
imprisonment for not more than one year, or both.
(2) A facility owner that intentionally or willfully
fails to comply with or obstructs compliance with this
chapter commits a misdemeanor of the third degree and shall,
upon conviction, be sentenced to pay a fine of $2,500 or to
imprisonment for not more than one year, or both.
(c) Penalties for failure to report.--A person required
under this chapter to report a case of suspected abuse or
neglect who willfully fails to do so commits a summary offense
for the first violation and a misdemeanor of the third degree
for a second or subsequent violation.
(d) Whistleblower protection.--A person required under this
act to report a case of suspected abuse or neglect shall not be
subject to any retaliatory action for reporting suspected abuse
or neglect and shall have the protections and remedies set forth
in the act of December 12, 1986 (P.L.1559, No.169), known as the
Whistleblower Law.
Section 507. Immunity.
No administrator or facility shall be held civilly liable for
any action directly related to good faith compliance with this
chapter.
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CHAPTER 7
MISCELLANEOUS PROVISIONS
Section 701. Regulations.
(a) The Department of Health and the Department of Aging
shall promulgate regulations necessary to carry out Chapter 5.
(b) The department shall promulgate rules and regulations
necessary to implement this act. Regulations shall be developed
in consultation with adults, their families and advocates.
Section 702. Report.
The department shall present a report on the program and
services performed to the Aging and Youth Committee of the
Senate and the Aging and Older Adult Services Committee of the
House of Representatives on an annual basis.
Section 703. Repeals.
All acts and parts of acts are repealed insofar as they are
inconsistent with this act.
Section 704. Effective date.
This act shall take effect in six months.
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