An Act amending the act of November 6, 1987 (P.L.381, No.79), known as the Older Adults Protective Services Act, extensively revising provisions relating to the protection of abused elderly; establishing a uniform Statewide reporting and investigative system for suspected abuse of the elderly; providing for protective services; prohibiting financial exploitation; providing for funding and for regulations; imposing penalties; and making editorial changes.

PRINTER'S NO. 1925
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1611
Session of
2025
INTRODUCED BY MADDEN, BENHAM, KOSIEROWSKI, D. WILLIAMS, CARROLL,
HILL-EVANS, PROBST, MAYES, RIVERA, FLEMING, SANCHEZ,
BOROWSKI, PARKER, CEPEDA-FREYTIZ, PIELLI, SHUSTERMAN, GUENST,
STEELE, HADDOCK, HOWARD AND HOHENSTEIN, JUNE 16, 2025
REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES,
JUNE 16, 2025
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," extensively revising provisions relating to
the protection of abused elderly; establishing a uniform
Statewide reporting and investigative system for suspected
abuse of the elderly; providing for protective services;
prohibiting financial exploitation; providing for funding and
for regulations; imposing penalties; and making editorial
changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The title of the act of November 6, 1987
(P.L.381, No.79), known as the Older Adults Protective Services
Act, is amended to read:
AN ACT
Relating to the protection of the abused[, neglected, exploited
or abandoned elderly; establishing] older adults; providing
for a uniform Statewide reporting and investigative system
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for suspected abuse[, neglect, exploitation or abandonment]
of [the elderly] older adults; providing protective services;
providing for funding; and making repeals.
Section 2. Chapter 1 of the act is repealed:
[CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the Older Adults
Protective Services Act.
Section 102. Legislative policy.
It is declared the policy of the Commonwealth of Pennsylvania
that older adults who lack the capacity to protect themselves
and are at imminent risk of abuse, neglect, exploitation or
abandonment shall have access to and be provided with services
necessary to protect their health, safety and welfare. It is not
the purpose of this act to place restrictions upon the personal
liberty of incapacitated older adults, but this act should be
liberally construed to assure the availability of protective
services to all older adults in need of them. Such services
shall safeguard the rights of incapacitated older adults while
protecting them from abuse, neglect, exploitation and
abandonment. It is the intent of the General Assembly to provide
for the detection and reduction, correction or elimination of
abuse, neglect, exploitation and abandonment, and to establish a
program of protective services for older adults in need of them.
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.
"Administrator." The person responsible for the
administration of a facility. The term includes a person
responsible for employment decisions or an independent
contractor.
"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.
"Care." Services provided to meet a person'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
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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.
"Care-dependent individual." An adult who, due to physical
or cognitive disability or impairment, requires assistance to
meet needs for food, shelter, clothing, personal care or health
care.
"Caretaker." 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.
"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.
"Exploitation." An act or course of conduct by a caretaker
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or other person against an older adult or an older adult's
resources, without the informed consent of the older 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 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.
(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 Code.
"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.
"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 with the administration of this act or any law
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intended to protect older adults from mistreatment.
"Law enforcement official." Any of the following:
(1) A police officer of a municipality.
(2) A district attorney.
(3) The Pennsylvania State Police.
"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.
"Older adult." A person within the jurisdiction of the
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.
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"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.
"Service plan." A written plan developed by the agency 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.]
Section 3. The act is amended by adding chapters to read:
CHAPTER 1-A
PRELIMINARY PROVISIONS
Section 101-A. Short title.
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This act shall be known and may be cited as the Older Adults
Protective Services Act.
Section 102-A. 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
caregiver.
"Abuse." As follows:
(1) The occurrence of one or more of the following acts:
(i) The knowing infliction of injury, unreasonable
confinement, intimidation or punishment with resulting
physical harm, pain or mental anguish.
(ii) The willful deprivation by a caregiver of goods
or services that are necessary to maintain physical or
mental health.
(iii) Sexual abuse.
(iv) Abuse as defined in 23 Pa.C.S. § 6102 (relating
to definitions).
(v) Exploitation.
(vi) Financial exploitation.
(vii) Neglect.
(viii) Abandonment.
(2) The term does not include an environmental factor
that is beyond the control of an older adult or a caregiver,
including the inadequacy of housing, furnishings, income,
clothing or medical care.
"Administrator." The individual responsible for the
administration of a facility. The term includes an individual
responsible for employment decisions at a facility or an
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independent contractor of a facility.
"Applicant." An individual who submits an application to be
considered for employment by a facility.
"Area agency on aging." The local agency or the local
agency's agent designated by the department within a planning
and service area to administer the delivery of older adult
protective services.
"Assessment." Comprehensive social, physical, cognitive and
psychological findings along with a description of an
individual's current resources and needs.
"Care." Services provided to meet an older adult's need for
personal care or physical or behavioral health care. The term
includes 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, that are routinely provided unsupervised and
require interaction with an older adult. The term does not
include durable medical equipment delivery.
"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 older adult. The
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.
"Court." A court of common pleas or a district magistrate
court, where applicable.
"Department." The Department of Aging of the Commonwealth.
"Designated representative of a financial institution." An
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individual who:
(1) is entitled to immunity from suit for disclosing
suspected financial exploitation by 12 U.S.C. § 3423
(relating to immunity from suit for disclosure of financial
exploitation of senior citizens); and
(2) is designated by a financial institution as the
individual responsible for providing information to an area
agency on aging, law enforcement agency or the department.
"Employee." The term includes:
(1) An individual who is employed by a facility.
(2) An individual who enters into a contractual
relationship with a facility and has direct contact with
residents or unsupervised access to their personal living
quarters.
(3) An individual who is employed or enters into a
contractual relationship to provide care to an older adult
for monetary consideration in the older adult's place of
residence.
"Exploitation." An act or course of conduct by a caregiver
or other person against an older adult or an older adult's
resources without the informed consent of the older adult or
with consent or authorization obtained through
misrepresentation, undue influence, coercion or threats of force
that results in monetary or personal loss to the older adult.
The term includes financial exploitation.
"Facility." The term includes 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) An assisted living residence as defined in section
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1001 of the act of June 13, 1967 (P.L.31, No.21), known as
the Human Services Code.
(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 individuals with
an intellectual disability.
(5) A long-term care nursing facility as defined in
section 802.1 of 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 Human Services Code.
(8) An organization or group of people that uses public
funds and is paid, in part, to provide care, care
coordination or support to older adults in a licensed or
unlicensed setting.
(9) A residential treatment facility.
(10) A hospital.
"Fiduciary." A person legally authorized to act on behalf of
an older adult.
"Financial exploitation." As defined in 18 Pa.C.S. § 3922.1
(relating to financial exploitation of an older adult or care-
dependent person).
"Financial institution." Any of the following conducting
business in this Commonwealth:
(1) A depository institution as defined in 12 U.S.C. §
1813(c) (relating to definitions).
(2) A Federal credit union or State credit union as
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defined in 12 U.S.C. § 1752 (relating to definitions),
including an institution-affiliated party of a credit union
as defined in 12 U.S.C. § 1786(r) (relating to te rmination of
insured credit union status and cease and desist orders and
removal or suspension from office and procedure) .
(3) A financial institution under 31 CFR Subt. B Ch. X
Pt. 1020 (relating to rules for banks) that is required to
file a suspicious activity report.
(4) A person subject to supervision by the Department of
Banking and Securities or comparable Federal or State bank
supervisory or regulatory authority.
"Financial institution employee." An individual employed by
a financial institution that has either:
(1) direct contact with an older adult; or
(2) access to or direct knowledge of an older adult's
financial records or accounts with the financial institution.
"Financial transaction." The term includes an exchange or
transfer of money, title, assets or any type of monetary
instrument through any means including cash, credit cards, debit
cards, checks, electronic or wire transfers or any of the
following:
(1) A transfer or a request to transfer or disburse
funds, money or assets, or any other tangible item of value
in an account .
(2) A request to initiate a wire transfer, initiate an
automated clearinghouse transfer or issue a money order,
cashier's check or official check.
(3) A request to negotiate a check or other negotiable
instrument.
(4) A request to change the ownership of, or access to,
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an account.
(5) A request to sell or transfer a security or other
asset , or a request to affix a medallion stamp or provide a
form of guarantee or endorsement in connection with an
attempt to sell or transfer a security or other asset.
(6) A request for a loan, extension of credit or draw on
a line of credit.
(7) A request to encumber movable or immovable property.
(8) A request to designate or change the designation of
a beneficiary to receive property or a benefit or contractual
right.
(9) A request for access to a safe deposit box.
(10) Except as authorized by this chapter, a request for
access regarding nonpublic information regarding an older
adult.
"Health care provider." Any of the following:
(1) A health care facility as defined under section 103
of the Health Care Facilities Act.
(2) A person licensed, certified or otherwise regulated
to provide health care services under the laws of this
Commonwealth.
"Hospital." An institution licensed by the Department of
Health that has an organized medical staff established for the
purpose of providing to inpatients, by or under the supervision
of physicians, diagnostic and therapeutic services for the care
of persons who are injured, disabled, pregnant, diseased, sick
or mentally ill or rehabilitation services for the
rehabilitation of persons who are injured, disabled, pregnant,
diseased, sick or mentally ill. The term includes a facility for
the diagnosis and treatment of disorders within the scope of
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specific medical specialties. The term does not include a
facility caring exclusively for behavioral health patients or a
facility whose inpatients are predominantly individuals under 18
years of age.
"Imminent risk." An immediate or impending action, condition
or situation that poses a direct threat to an older adult's
health or life absent intervention without delay for any reason
upon discovery of the action, condition or situation.
"Intentionally." As specified in 18 Pa.C.S. § 302 (relating
to general requirements of culpability).
"Intimidation." An act or omission by a person toward
another person intended to threaten or with the knowledge that
the act or omission will frighten, obstruct, impede, impair,
prevent or interfere with the administration of this act or
other law intended to protect older adults from mistreatment.
"Knowingly." As specified in 18 Pa.C.S. § 302.
"Law enforcement agency." The Office of Attorney General, a
district attorney's office or an agency that employs a law
enforcement official.
"Law enforcement official." Any of the following:
(1) An individual who is employed as a police officer
and holds a current certificate under 53 Pa.C.S. Ch. 21
Subch. D (relating to municipal police education and
training).
(2) A district attorney or assistant district attorney.
(3) An officer of the Pennsylvania State Police.
(4) The Attorney General or an agent or deputy of the
Attorney General.
(5) A sheriff or deputy sheriff.
"Least restrictive alternative." The least intrusive
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interventions, services or environment that can effectively and
safely address an older adult's needs.
"Mandatory reporter." Any of the following:
(1) An administrator or employee of a facility.
(2) A health care provider.
(3) A person licensed, certified or otherwise regulated
to provide health care services under the laws of this
Commonwealth.
(4) An administrator or employee of an area agency on
aging.
(5) A law enforcement official.
"Neglect." The failure to provide for oneself or the failure
of a caregiver or fiduciary to provide goods, care or services
essential to avoid a clear and serious threat to the physical or
mental health of an older adult. An older adult who does not
consent to the provision of protective services may not be found
to be neglected solely on the grounds of environmental factors
that are beyond the control of the older adult or the caregiver,
including inadequate housing, furnishings, income, clothing or
medical care.
"Older adult." An individual who is within the jurisdiction
of this Commonwealth and is at least 60 years of age.
"Older adult in need of protective services." An older adult
who, because of one or more functional limitations, needs the
assistance of another person to perform or obtain services that
are necessary to maintain physical or mental health, for whom
there is no responsible caregiver and there is a risk of harm to
their person or property or they are at imminent risk under
section 404-A(a).
" Perso n who is authorized to have access to the older adult's
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account." The term includes:
(1) An authorized contact provided by an older adult to
a financial institution, authorized signatory or beneficiary
on an older adult's account.
(2) A fiduciary authorized to manage some or all of the
financial affairs of an older adult.
(3) A co-owner of an account or other person authorized
to transact business on an older adult's account.
(4) An attorney or financial professional known to
represent or have represented or to assist in the management
of the financial affairs of an older adult.
"Protective services." The activities, resources and
supports provided to older adults under this act to detect,
address, prevent, remedy, reduce or eliminate abuse.
"Recipient." An older adult who receives care, services or
treatment in or from a facility or caregiver.
"Risk of harm." The strong likelihood that an older adult
will experience an action, condition, situation, injury or other
outcome that is adverse or detrimental.
"Secretary." The Secretary of Aging of the Commonwealth.
"Serious bodily injury." Injury that:
(1) creates a substantial risk of death; or
(2) causes serious disfigurement of a body part or
organ, protracted loss or impairment of the function of a
body part or organ.
"Serious injury." An injury that:
(1) causes a person severe pain; or
(2) significantly impairs an individual's physical or
mental functioning, either temporarily or permanently.
"Service plan." A written comprehensive assessment by an
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area agency on aging of an older adult that includes a person-
centered and trauma-informed approach that identifies needs,
goals to be achieved or maintained and specific services
designed to support the older adult's physical and mental
health.
"Sexual abuse." Nonconsensual sexual interaction, including
a touching or nontouching act, with an older adult.
" Substantiated perpetrator." A person determined, based on a
protective services investigation, to have committed abuse of an
older adult.
"Suspicious death." An older adult's death that occurs
during an active protective services case where there is a
potential nexus between the injury inflicted and the death of
the older adult.
"Willfully." As specified in 18 Pa.C.S. § 302.
Section 103-A. Intent.
It is not the intent of this act to impose responsibility on
an individual if the responsibility would not otherwise exist in
law.
CHAPTER 2-A
DUTIES OF DEPARTMENT
Section 201-A. Public education.
The department shall conduct an ongoing public education and
outreach campaign to older adults and the general public that is
designed to promote and create awareness about the reporting of
and protection from abuse of older adults.
Section 202-A. (Reserved).
Section 203-A. Training.
(a) Standards.--The department shall establish minimum
training requirements and ongoing education for all area agency
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on aging employees to ensure that the employees possess the
competency, knowledge and skills necessary for the effective
provision of protective services.
(b) Mandatory reporters.--The department shall establish a
training program for mandatory reporters regarding reporting
requirements under this act.
Section 204-A. Confidentiality.
The department shall establish procedures which shall be used
by an area agency on aging, its designees and its protective
services providers to ensure the privacy of older adults
receiving services and the confidentiality of records.
Section 205-A. Schedule and annual plan.
(a) Establishment.--The department shall establish a
schedule for the submission and approval of the plans associated
with the development of training provided in section 203-A.
(b) Protective services annual plan.--
(1) An area agency on aging shall develop a protective
services annual plan that describes the local implementation
of this act, including the organization, staffing, mode of
operations and financing of protective services and the
provisions made for the purchase of services, interagency
relations, interagency agreements, service referral
mechanisms and locus of responsibility for cases with
multiservice agency needs.
(2) The plan shall include a list of each public or
private entity that has been identified by the area agency on
aging as having substantial contact with older adults who are
potentially in need of protective services or persons
substantiated as abusers against older adults.
(3) The area agency on aging shall submit the list to
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the department for purposes of the public education campaign
under section 201-A.
Section 206-A. Waiver application availability.
The department shall develop a standardized application
process for waivers submitted under section 702-A(b). The
department shall make the process publicly available.
Section 207-A. Reporting.
The department shall annually submit to the General Assembly
a report on the training program established under section 203-A
and services performed. The report shall include, at minimum,
statistical data on abuse, the waiver process and training
practices. The department shall make the report publicly
available.
Section 4. Chapter 3 of the act is repealed:
[CHAPTER 3
ADMINISTRATION
Section 301. Duties of department and area agencies on aging.
(a) Public information and interdepartmental consultation.--
The department shall conduct an ongoing campaign designed to
inform and educate older adults, professionals and the general
public about the need for an availability of protective services
under this chapter. 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 area agencies on aging and the
entities identified by them under subsection (c).
(b) Staff training.--The department shall establish minimum
standards of training and experience which protective services
providers funded by the department shall be required to follow
in the selection and assignment of staff for the provision of
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protective services.
(c) Protective services plans.--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, 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. The
description of the methods that will be used by the agency, 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. The plan shall include a list of all entities,
whether public or private, that have been identified by the area
agency on aging as having substantial contact with potential
victims or perpetrators of abuse, neglect, exploitation and
abandonment. This list shall be submitted to the department for
purposes of the public information campaign under subsection
(a).
Section 302. Reporting; protection from retaliation; immunity.
(a) Reporting.--Any person having reasonable cause to
believe that an older adult is in need of protective services
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
24 hours a day, seven days a week (including holidays). This
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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
any civil or criminal liability on account of the report or
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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.
Section 303. Investigations of reports of need for protective
services.
(a) Investigation.--It shall be the agency's responsibility
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
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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
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
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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).
(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
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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
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:
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(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.
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
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plans, the agency may disclose to appropriate service
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 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.
(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.
(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.
(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.
(e) Health and safety requirements.--The agency shall take
reasonable steps to assure that while the person is receiving
services under an emergency court order, the health and safety
needs of any of the person's dependents are met and that
personal property and the dwelling the person 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 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
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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
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.
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(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
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
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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
determined by a service plan to be necessary to reduce,
correct or eliminate abuse, neglect, exploitation or
abandonment of an older adult when such services are not
available within the existing resources of the agency or
other appropriate provider. Purchase of services under
this provision is limited to a 30-day period which may be
renewed with adequate justification under regulations
promulgated by the department.
(3) The obligation of the Commonwealth and the counties
to provide funds to the department or any agency for services
provided pursuant to this chapter shall be entirely
discharged by the appropriations made to the department or an
agency. Provided that the agency has met its responsibility
under the law, no action at law or equity shall be instituted
in any court to require the department, any agency, county or
the Commonwealth to provide benefits or services under this
chapter for which appropriations from the Commonwealth or
counties are not available.
(4) Protective services clients receiving the same
services provided to others under an agency service plan
shall not be required to pay a fee for any services not
subject to cost sharing for other older adults.
Section 310. Regulations; enforcement.
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(a) Promulgation of regulations.--The department shall
promulgate the rules and regulations to carry out this chapter
and shall be responsible for presenting to the General Assembly
annually a report on the program and services performed.
(b) Enforcement.--This chapter shall be enforced only after
promulgation of regulations by the department, which shall occur
no later than 12 months following passage of this chapter,
except that section 301 shall apply when the area agency on
aging certifies to the department that it is prepared to fulfill
its responsibilities. The certification shall be made within 90
days following promulgation of regulations.
Section 311. Funds for payment of administration of chapter.
Funds necessary to administer this chapter shall be provided
by annual appropriation by the General Assembly.]
Section 5. The act is amended by adding chapters to read:
CHAPTER 3-A
DUTIES OF AREA AGENCIES ON AGING
Section 301-A. Receipt of reports.
An area agency on aging shall receive at all times,
electronically and orally, a report of an older adult in need of
protective services. The report must be documented in a manner
prescribed by the department.
Section 302-A. Investigations.
(a) Duty to conduct.--
(1) An area agency on aging shall investigate a report,
in accordance with regulations issued by the department, to
determine if an older adult is in need of protective
services.
(2) The regulations shall provide for the methods of
conducting investigations and shall ensure that steps are
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taken to avoid a conflict of interest.
(3) To the extent permitted by law, the department may
exchange information with Federal agencies or the
Commonwealth as necessary to ensure the health, safety and
welfare of an older adult and protect an older adult from
financial exploitation under section 603-A.
(b) Closure.--Upon closure of a case, the area agency on
aging shall retain information for a minimum of six months under
procedures established by the department.
(c) Timely assessment.--
(1) If a report is substantiated by an area agency on
aging or an assessment is necessary in order to determine
whether or not the report is substantiated, the area agency
on aging shall provide for a timely assessment, provided the
older adult consents to an assessment.
(2) Upon completion of the assessment, the area agency
on aging shall prepare written findings and recommended
action. The service plan shall:
(i) provide for the least restrictive alternative,
encouraging self-determination and continuity of care;
(ii) be in writing; and
(iii) include a recommended course of action that
may include the pursuit of civil or criminal remedies.
(3) If an older adult found to be in need of protective
services does not consent to an assessment or the development
of a service plan, the area agency on aging may apply section
404-A to the case.
(d) Environmental factors.--An older adult may not be found
to be abused solely on the grounds of environmental factors that
are beyond the control of the older adult or caregiver,
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including inadequate housing, furnishings, income, clothing or
medical care.
Section 303-A. Investigations involving facilities.
(a) Duty to conduct.--If a report under section 301-A
concerns a facility, the area agency on aging shall notify the
local ombudsman and the licensing agency and the investigation
concerning the facility shall be coordinated with the licensing
agency and conducted under procedures developed by the
department in consultation with the Commonwealth agency with
oversight authority for the facility.
(b) Duty of facility.--The facility shall take reasonable
steps to protect older adults following receipt of a report of
suspected abuse involving an employee, including a plan of
supervision or suspension of the employee.
Section 304-A. Investigations involving law enforcement
officials.
(a) Coordination.--To the extent possible, law enforcement
officials, an area agency on aging and other mandatory reporters
shall coordinate respective investigations and shall advise each
other and provide applicable additional information on an
ongoing basis.
(b) Notice to law enforcement officials.--Upon receipt of a
report of any of the following, the area agency on aging shall
immediately notify a law enforcement official:
(1) Suspicious death.
(2) Serious bodily injury.
(3) Serious injury.
(4) Rape, involuntarily deviate sexual intercourse,
sexual assault, institutional sexual assault, statutory
sexual assault, aggravate indecent assault, indecent assault
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or incest as defined by 18 Pa.C.S. (relating to crimes and
offenses).
(c) Actions following referral.--
(1) Following a referral to a law enforcement official,
the area agency on aging shall contact the law enforcement
official to obtain information about any action taken and the
outcome, including any decision regarding criminal charges,
and the law enforcement official shall provide the
information to the extent that the information is available.
(2) An area agency on aging shall report the information
under paragraph (1) to the department in a manner prescribed
by the department.
Section 305-A. Access to older adults.
(a) Power of area agency on aging.--
(1) An area agency on aging shall have access to an
older adult who has been reported to be in need of protective
services in order to:
(i) Investigate a report.
(ii) Assess needs of the older adult and develop a
service plan for addressing the needs.
(iii) Provide for the delivery of services by the
area agency on aging or other protective services
provider under the service plan.
(2) If the area agency on aging is denied access to an
older adult reported to be in need of protective services,
the area agency on aging may petition the court for an order
to require the appropriate access when either of the
following conditions apply:
(i) The caregiver or a third party has interfered
with the completion of the investigation, the assessment
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and service plan or the delivery of services.
(ii) The area agency on aging demonstrates the older
adult reported to be in need of protective services is
being denied access because of undue influence, coercion,
extortion or justifiable fear of future abuse.
(b) Petition.--The area agency on aging may petition the
court for an order to require any of the following:
(1) Access to the older adult.
(2) A physical health evaluation of the older adult.
(3) A behavioral health evaluation of the older adult.
Section 306-A. Access to records.
(a) Area agency on aging access.--An area agency on aging
shall, with the consent of an older adult, have access to all
records for the purposes of:
(1) Assessing the older adult's need for services.
(2) Planning and delivery of services.
(3) Investigating a report relating to the older adult.
(b) Refusal.--If the area agency on aging is denied access
to records necessary for the completion of a proper
investigation of a report, assessment or service plan or the
delivery of needed services in order to prevent further abuse of
the older adult reported to be in need of protective services,
the area agency on aging 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
confidential records to be disclosed and the keeper of the
records denies access.
(2) The area agency on aging demonstrates that the older
adult is being denied access to records because the older
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adult is unable to give informed consent due to cognitive
impairment or because of undue influence, coercion, extortion
or justifiable fear of future abuse.
(c) Request of certain records.--
(1) If an area agency on aging reasonably believes
records from a Commonwealth agency, private organization,
financial institution, fiduciary, medical institution and
practitioner or person reasonably suspected of engaging in or
facilitating the abuse of an older adult, are necessary to
complete an investigation, assessment, or service plan, the
area agency on aging shall request in written form the
records, and the records shall be made available to the area
agency on aging, unless the disclosure is prohibited by any
other provision of Federal or State law.
(2) Except as provided by a court order, access to a
financial record shall be limited to a record relating to the
most recent financial transaction or financial transactions
that may comprise financial exploitation, not to exceed 60
calendar days prior to the first financial transaction
reported and 60 calendar days after the last financial
transaction reported.
(d) Medical records.--To facilitate an area agency on
aging's protective services investigation, assessment or service
plan under this subsection, a medical institution and
practitioner shall provide an older adult's medical records
within five business days, in accordance with Federal and State
law, upon receipt of written consent.
(e) Compensation.--The area agency on aging or the
department may compensate a person requested or ordered to
provide records to the area agency on aging for the reasonable
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costs of producing records in a manner consistent with the
requirements of 12 U.S.C. § 3415 (relating to cost
reimbursement).
Section 307-A. Rights of older adults.
(a) Notification.--An area agency on aging shall discreetly
notify an older adult during an investigation that a report has
been made and shall provide the older adult with a brief summary
of the nature of the report.
(b) Information.--
(1) As provided in section 405-A, an older adult who is
the subject of a report, or the older adult's guardian if the
guardian is not named as an abuser in the report, may
receive, upon written request, a summary of the report of
need except information that would identify the individual
who made a report of suspected abuse or persons who
cooperated in a subsequent investigation.
(2) Upon request, the mandated reporter who filed the
report of abuse may be informed whether a case had been
opened as a result of the report.
(c) Appeal.--A denial of services by the department or an
area agency on aging under this chapter may be appealed in
accordance with 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.
Section 308-A. Substantiated perpetrators.
If an investigation by an area agency on aging finds that an
individual is a substantiated perpetrator, the individual may
appeal the findings of the investigation and shall be entitled
to the following:
(1) Notification by the area agency on aging at the
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conclusion of the investigation that the individual has been
determined to be a substantiated perpetrator and a brief
summary of the investigative findings.
(2) The right to file an appeal with the department
under 1 Pa. Code Pt. II (relating to general rules of
administrative practice and procedure) to challenge the
determination.
(3) The right to request additional information related
to the determination, upon the filing of an appeal. Upon
request, the area agency on aging shall provide, consistent
with the confidentiality requirements of this act, a brief
summary of the information that supports the determination.
Section 309-A. Electronic records.
A requirement of this act that information be prepared,
filed, submitted, requested, maintained or signed in writing may
be satisfied by the use of an electronic record or signature to
the extent permitted by law, unless the department, an area
agency on aging or a law enforcement agency requires the use of
a non-electronic record or original signature.
Section 310-A. Confidentiality standards required.
An area agency on aging shall utilize the department's
confidentiality standards established under section 204-A.
Section 311-A. Availability of protective services.
An area agency on aging shall offer protective services to an
individual determined by the area agency on aging to be an older
adult in need of protective services under this act.
CHAPTER 4-A
PROTECTIVE SERVICES
Section 401-A. Consent by request.
An older adult shall receive protective services voluntarily
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unless the services are ordered by a court of competent
jurisdiction.
Section 402-A. Interference with services.
If a person interferes with the provision of services or
interferes with the rights of an older adult to consent to the
provision of services, an area agency on aging may petition the
court for an order enjoining the interference.
Section 403-A. Financial obligations, liabilities and payments.
An older adult receiving protective services and an agency
providing services under this chapter shall comply with the
following provisions regarding liability for the payment of
services:
(1) Funding to provide protective services under this
chapter may not be used in place of any public or private
entitlement or benefit for which the older adult receiving
protective services under this chapter is or may be eligible.
(2) Funding to provide protective services may not be
used until eligibility and receipt of benefits under public
and private entitlements or resources have been exhausted.
(3) Funding available to local area agencies on aging
under this chapter may be used to cover the costs of
activities, including:
(i) Administering protective services plans.
(ii) Receiving and maintaining records of reports of
abuse.
(iii) Conducting investigations of reported abuse.
(iv) Carrying out assessments and developing service
plans.
(v) Petitioning the court.
(vi) Providing for emergency involuntary
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intervention.
(vii) Arranging for available services needed to
carry out service plans, including, as appropriate,
arranging for services for other individuals in the
household unit in order to reduce, correct or eliminate
abuse of an older adult.
(viii) Purchasing, on a temporary basis, services
determined by a service plan to be necessary to reduce,
correct or eliminate abuse of an older adult if the
services are not available within the existing resources
of the area agency on aging or other appropriate
provider. Purchase of services under this section is
limited to a 30-day period, which may be renewed with
adequate justification under regulations promulgated by
the department.
(4) An older adult receiving protective services may not
be charged a fee when the receipt of the services is not
subject to cost sharing.
Section 404-A. Involuntary intervention by emergency court
order.
(a) Emergency petition.--
(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,
serious injury or serious bodily injury; or rape, involuntary
deviate sexual intercourse, sexual assault, institutional
sexual assault, statutory sexual assault, aggravated indecent
assault, indecent assault or incest, as defined by 18 Pa.C.S.
(relating to crimes and offenses).
(2) The court of common pleas shall grant the petition
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if the court finds, by clear and convincing evidence, that
failure to provide protective services will place the older
adult at imminent risk of death, serious injury or serious
bodily injury; or rape, involuntary deviate sexual
intercourse, sexual assault, institutional sexual assault,
statutory sexual assault, aggravated indecent assault,
indecent assault or incest, as defined by 18 Pa.C.S.
(3) A court of common pleas shall ensure that a judge or
magisterial district judge is available at all times to
accept and rule on petitions for emergency court orders under
this section if the area agency on aging determines that a
delay until normal court hours may significantly increase
danger to the older adult.
(b) Limited order.--The court, after finding clear and
convincing evidence of the need for an emergency order, shall
order only services necessary to remove the conditions creating
the established need.
(c) Right to counsel.--In order to protect the rights of the
older adult for whom protective services are being ordered, an
emergency court order under this section shall provide that the
older adult has the right to legal counsel. If the older adult
is unable to provide for counsel, counsel shall be appointed by
the court.
(d) Forcible entry.--A law enforcement official may forcibly
enter a premises if:
(1) necessary to forcibly enter the premises after
obtaining a court order; and
(2) the law enforcement official is accompanied by a
representative of the area agency on aging.
(e) Health and safety requirements.--
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(1) The area agency on aging shall take reasonable steps
to ensure that while the older adult is receiving services
under an emergency court order:
(i) the health and safety needs of the older adult's
dependents are met; and
(ii) the personal property and dwelling of the older
adult are secure.
(2) If a dependent of the older adult has health and
safety needs, the area agency on aging shall make a report as
follows:
(i) A report of suspected child abuse shall be made
in accordance with 23 Pa.C.S. Ch. 63 (relating to child
protective services).
(ii) A report of need for adult protective services
shall be made in accordance with the act of October 7,
2010 (P.L.484, No.70), known as the Adult Protective
Services Act.
Section 405-A. Confidentiality of records.
(a) Requirement.--
(1) Information contained in a report, record of
investigation, assessment and service plan created under this
chapter shall be considered privileged and confidential and
shall be maintained in accordance with regulations
promulgated by the department.
(2) The department or the area agency on aging may not
release confidential information related to the older adult
except by court order or to a law enforcement official or
coroner under subsection (b)(2), and the confidential
information may be used by the department in a civil
proceeding, subject to a protective order.
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(3) Information contained in a protective service record
is subject to other Federal and State privacy and
confidentiality laws.
(b) Release of protective services records.--
(1) A protective services record may be provided to a
court of competent jurisdiction or to another party pursuant
to a court order.
(2) A protective services record may be provided to a
law enforcement official or coroner if the information is
relevant to the official's or coroner's investigation of
abuse or death of the older adult. The protective services
record is not subject to inspection and duplication under the
act of February 14, 2008 (P.L.6, No.3), known as the Right-
to-Know Law.
(3) In arranging specific services to carry out a
service plan, the area agency on aging may disclose
information to an appropriate service provider as may be
necessary for the provision of services.
(4) The older adult who is the subject of a report or,
if the guardian is not named as an abuser in the report, the
older adult's guardian, may receive, upon written request, a
summary of the report of need except information that would
identify the individual who made a report of suspected abuse
or any person that cooperated in a subsequent investigation.
(5) A mandatory reporter who makes a report of suspected
abuse may receive, upon written request, confirmation from
the area agency on aging that the report was received and the
area agency on aging is acting in accordance with this
chapter. No additional information beyond the confirmation
shall be provided under this paragraph.
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(6) For purposes of monitoring area agency on aging
performance or conducting other official duties, appropriate
staff of the department, as designated by the secretary, may
access protective services records.
(7) The department or the area agency on aging may
collaborate or share information included in protective
services records with Commonwealth agencies for purposes of
official Commonwealth business, to the extent permitted by
law.
(8) For purposes of coordination and continuity of
service delivery, the department and the Department of Human
Services shall each exchange protective services records,
including assessments, service plans, reports of need and
medical records of the following:
(i) Older adults in need of protective services.
(ii) Older adults in potential need of protective
services.
(iii) Adults in need of protective services as
defined under the act of October 7, 2010 (P.L.484,
No.70), known as the Adult Protective Services Act.
(iv) Adults who are potentially in need of
protective services under the Adult Protective Services
Act.
(9) The department or the area agency on aging may share
a summary of protective services information with another
area agency on aging performing a duty under this chapter
relevant to older adults within the area agency on aging's
jurisdiction.
(10) An employee of an agency of another state who
performs older adult protective services similar to those
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under this chapter may access a summary of protective
services information relevant to an older adult within the
area agency on aging's jurisdiction.
(11) A protective services record of an older adult may
be provided to a health care provider that is examining or
treating the older adult and suspects the older adult is in
need of protection under this chapter.
(12) A protective services record of an older adult may
be provided to the director, or an individual specifically
designated in writing by the director, of a hospital or other
medical institution where an older adult is being treated if
the director or designee suspects that the recipient is in
need of protection under this act.
(13) Unless prohibited by Federal law, a protective
services record relating to financial exploitation may be
provided to a financial institution or fiduciary as necessary
to exercise the authority to prohibit disbursement of funds
and financial transactions provided under section 603-A.
(c) Definition.--For purposes of this section, "court order"
does not include a subpoena.
Section 406-A. Older adult fatality review team and written
report.
(a) Convening of team.--
(1) An older adult fatality review team shall be
convened by an area agency on aging in accordance with a
protocol developed by the area agency on aging, the
department and the district attorney for a case in which an
older adult dies as a direct result of suspected or
substantiated abuse during an active protective services
case.
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(2) The team may convene after the area agency on aging
makes a determination of a direct connection between an older
adult's death and suspected or substantiated abuse, and shall
convene no later than 30 days from the receipt of the oral
report to the department of the suspected or substantiated
abuse of an older adult.
(3) The area agency on aging in the county where the
abuse occurred and in any county where the older adult
resided within the six months preceding the fatality shall
convene an older adult fatality review team.
(4) An area agency on aging may establish an independent
older adult fatality review team or jointly with other area
agencies on aging. If a joint area agency on aging older
adult fatality review team is established, the multicounty
team members shall execute an agreement between participating
counties regarding team membership, staffing and operations.
(5) A fatality review team shall be multidisciplinary
and culturally diverse and include professionals and
representatives from organizations that provide services or
community resources for older adults in the community served
by the fatality review team. A team shall consist of at least
six individuals who are broadly representative of the county
where the team is established and have expertise in
prevention and treatment of abuse of older adults.
(6) With consideration given to the circumstances of
each case and availability of individuals to serve as
members, the team may consist of the following individuals:
(i) A staff person from the area agency on aging.
(ii) A member of the advisory committee or board of
the area agency on aging.
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(iii) A health care professional who is licensed to
practice in this Commonwealth.
(iv) A representative of the Pennsylvania Council on
Aging.
(v) A representative of law enforcement or the
district attorney.
(vi) An attorney-at-law trained in legal
representation of older adults who is licensed to
practice in this Commonwealth.
(vii) A mental health professional who is licensed
to practice in this Commonwealth.
(viii) A representative of an entity specializing in
older adult advocacy that provides services to older
adults in the county. The individual under this
subparagraph must not be an employee of the area agency
on aging.
(ix) The county coroner, medical examiner or
forensic pathologist who is licensed to practice in this
Commonwealth.
(x) A representative of a local domestic violence
program.
(xi) A representative of a local drug and alcohol
program.
(xii) An individual representing caregivers.
(xiii) Any individual who the area agency on aging
or older adult fatality review team determines is
necessary to assist the team in performing its duties.
(7) Members of the team shall be responsible for all of
the following:
(i) Maintaining confidentiality of information under
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section 405-A.
(ii) Providing and discussing relevant case-specific
information.
(iii) Attending and participating in all meetings
and activities as required.
(iv) Assisting in the development of the report
under paragraph (4)(v).
(8) The area agency on aging, in accordance with the
protocol and in consultation with the team, shall appoint an
individual who is not an employee of the area agency on aging
to serve as chairperson of the team.
(9) The team shall perform the following duties:
(i) Review the circumstances of the older adult's
fatality resulting from suspected or substantiated abuse.
(ii) Review the delivery of services provided to the
abused older adult by the area agency on aging and review
any services provided by an area agency on aging in each
county where the older adult resided or received services
within the six months preceding the fatality. This
subparagraph includes law enforcement, mental health
services, programs for older adults and older adults with
special needs, drug and alcohol programs, senior centers
and health care providers.
(iii) Review relevant court records and documents
related to the abused older adult.
(iv) Review the area agency on aging's compliance
with statutes and regulations and with relevant policies
and procedures of the area agency on aging.
(b) Submission of report.--
(1) Not later than 90 days after convening, submit a
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final written report on the older adult fatality to the
department and designated county officials under subsection
(e).
(2) Not later than 30 days after submission of the
report to the department, the area agency on aging shall make
the report available, upon request, to other individuals to
whom confidential reports may be released, as specified by
subsection (e).
(3) The area agency on aging shall make available to the
public a summary of the report, but shall remove identifying
information from the contents of the report.
(4) The area agency on aging may not release the report
under paragraph (3) to the public if the district attorney
certifies that release of the report may compromise a pending
criminal investigation or proceeding. Certification by the
district attorney shall stay the release of the report for a
period of 60 days, at which time the report shall be released
unless a new certification is made by the district attorney.
(5) The report under this subsection shall include:
(i) Any deficiency and strength in:
(A) compliance with statutes and regulations;
and
(B) protective services to older adults.
(ii) Any recommendation to improve protective
services systems and community resources to reduce older
adult abuse and related fatalities in the fatality review
team's jurisdiction.
(iii) Any proposed solution for inadequacies in the
protective services systems.
(iv) Any recommendation to improve sources of
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information regarding the reporting and investigations of
reported older adult abuse cases including standards for
the uniform and consistent reporting and investigations
by law enforcement or other emergency service responders
within the fatality review team's jurisdiction.
(v) Any recommendation for improvements to State
laws and local partnerships, policies and practices to
prevent older adult abuse and related deaths.
(c) Response by department.--
(1) Not later than 45 days after receipt of a report of
an older adult fatality under subsection (a), the department
shall review the findings and recommendations of the report
and provide a written response to the area agency on aging
and the older adult fatality review team.
(2) The department shall make the response, upon
request, available to other individuals to whom confidential
reports may be released, as specified by subsection (e).
(3) A summary of the response shall be made available to
the public, but the department shall remove identifying
information from the contents of the response. The department
may not release the response to the public if the district
attorney certifies that release of the response may
compromise a pending criminal investigation or proceeding.
Certification by the district attorney shall stay the release
of the report for a period of 60 days, at which time the
report shall be released, unless a new certification is made
by the district attorney.
(d) Construction.--
(1) This section shall be construed to assist in the
improvement of protective services designed to identify and
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prevent older adult abuse.
(2) This section shall not be construed to impede or
interfere with criminal prosecutions of persons who have
committed older adult abuse.
(e) Release of information in confidential reports.--
(1) A report specified in this section shall only be
made available to:
(i) An authorized official of a county, of a Federal
agency that has a need for the information to carry out
its duties under law to protect older adults, from abuse
or of an agency of another state that performs protective
services analogous to the services performed by area
agencies on aging or the department in the course of the
official's duties, a multidisciplinary team member
assigned to the case and any duly authorized person
providing services under this act.
(ii) An authorized official or agent of the
department in accordance with department regulations or
in accordance with the conduct of a performance
monitoring under this act.
(iii) A court of competent jurisdiction.
(iv) A person pursuant to court order or subpoena.
(v) A law enforcement agency or a law enforcement
official of a jurisdiction, in the course of performing
an official duty, as long as the information is relevant
to performance of the duty.
(vi) A standing committee of the General Assembly
that specifically has department legislative oversight.
(vii) A Federal auditor if required for Federal
financial participation in funding of an agency, except
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that a Federal auditor may not remove an identifiable
report or copy of the report from the department or area
agency on aging.
(viii) A designated county official, in reviewing
the competence of the area agency on aging or its
employees under this act. An official under this
paragraph is limited to the following:
(A) The board of commissioners of a county other
than a county of the first class.
(B) The board of directors of a nonprofit area
agency on aging.
(ix) An appropriate official of another county or
state regarding an investigation related to older adult
abuse when an older adult had moved to the other county
or state. A report released under this subparagraph shall
include a general protective service report and related
information. The report and information shall be provided
within seven calendar days. The department shall
promulgate regulations as necessary to carry out the
purposes of this subparagraph.
(x) A member of an older adult fatality review team
under this section.
(xi) The Department of the Auditor General in
conjunction with the performances of the duties
designated to the Office of Auditor General, except that
the Auditor General may not remove an identifiable report
or copy of the report from the department or agency area
agency on aging.
(2) Upon a written request, the estate of the subject of
a report may receive a copy of all information, except for
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information prohibited from disclosure under section 307-A.
(3) Subject to section 506-A, a person under this
section that has access to the information shall treat all
reporting sources as confidential informants.
(f) Duties of department.--The department, in consultation
with State or local government agencies, shall have all of the
following duties:
(1) Provide necessary technical assistance to a fatality
review team.
(2) Promulgate regulations as necessary to implement
this section.
(3) Submit an annual report to the Governor and the
General Assembly that includes a summary of reports received
from each area agency on aging's fatality review teams and
recommendations relating to the reduction of risk of older
adult abuse and related deaths.
(g) Authority to access records.--To the extent permitted by
Federal law, a fatality review team may access records as
follows:
(1) Notwithstanding any other provision of law and
consistent with the Health Insurance Portability and
Accountability Act of 1996 (Public Law 104-191, 110 Stat.
1936), the Department of Health shall provide the records of
a deceased individual under review without the need for
authorization of any person, including the executor,
administrator or personal representative of the deceased
individual for purposes of review under this section.
(2) Notwithstanding any other provision of law and
consistent with the Health Insurance Portability and
Accountability Act of 1996, the team may review and inspect
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mental health care service files and records of a deceased
individual under review without the need for authorization of
any person, including the executor, administrator or personal
representative of the deceased individual for purposes of
review under this section.
(3) Notwithstanding any other provision of law and
consistent with the Health Insurance Portability and
Accountability Act of 1996, a health care facility and health
care provider, pharmacy and mental health care provider shall
provide medical records of a deceased individual under review
without the need for authorization of any person, including
the executor, administrator or personal representative of the
deceased individual for purposes of review under this
section.
(4) If deemed necessary for its review, the team may
petition the court for leave to review and inspect all files
and records of the court relating to a deceased individual
under review in accordance with 42 Pa.C.S. § 6307 (relating
to inspection of court files and records).
(5) Other records pertaining to the deceased under
review for the purposes of this section shall be open to
inspection and duplication as permitted by law.
(h) Requests for records.--
(1) The following shall be provided , to the extent
permitted by Federal law, to a fatality review team on
written request of the chairperson or designee of a fatality
review team:
(i) A record regarding the physical health and
mental health, maintained by a health care provider,
hospital or health system, for a deceased individual
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under review by the fatality review team.
(ii) A record maintained by a State or local
government agency or entity, including death
investigative information, medical examiner investigative
information, law enforcement investigative information,
emergency medical services report, fire department
record, prosecutorial record, parole and probation
information and record, court record and relevant
information and record of a social services agency,
including the Department of Human Services, if the agency
or entity previously provided services to a deceased
individual under review by the fatality review team.
(iii) The following persons and entities shall
comply with a records request by a fatality review team
made under this subsection:
(A) Coroner or medical examiner.
(B) Fire department.
(C) Health system.
(D) Hospital.
(E) Law enforcement agency.
(F) State or local governmental agency,
including the department, the Department of Health,
Department of Human Services and the Department of
Corrections.
(G) Mental health provider.
(H) Health care provider.
(I) Substance use disorder treatment provider.
(J) EMS provider.
(K) Social services provider.
(L) Any other person or entity in possession of
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a record pertinent to the fatality review team
investigation of an older adult's death.
(2) A person or entity subject to a records request by a
fatality review team under subsection (a) may charge the
fatality review team a reasonable fee for the service of
duplicating any record requested by the fatality review team
for which duplication is required.
(3) If requested in writing by the chairperson or
designee of the fatality review team, a person or entity
shall provide information within five business days of
receipt of the written request, excluding weekends and
holidays, unless an extension is granted by the chairperson
or designee. For purposes of this paragraph, a written
request includes a request submitted via email or any other
type of transmission.
(4) A fatality review team shall not need an
administrative subpoena or other form of legal compulsion to
receive requested records under this section. This paragraph
shall not be construed to impair any power or duty the
fatality review team has to obtain an administrative subpoena
or other form of legal compulsion.
(5) Information received in response to a request under
this section may be shared at a fatality review team meeting
in accordance with this section.
(6) A record may not be released during the pendency of
an investigation if the release of the record would hinder
the progress of an active investigation or criminal
proceeding.
(7) This subsection shall apply to the extent permitted
by Federal law.
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(i) Confidentiality of fatality review team records and
meetings.--
(1) A fatality review team meeting shall be closed to
the public and information discussed at the meeting shall be
confidential.
(2) The proceedings, records and information maintained
by and shared with a fatality review team are not subject to:
(i) Inspection and duplication under the act of
February 14, 2008 (P.L.6, No.3), known as the Right-
to-Know Law.
(ii) Discovery, subpoena or introduction into
evidence in a criminal or civil proceeding.
(3) Information presented in or an opinion formed as a
result of a meeting of a fatality review team may not be
subject to subpoena or discovery or admissible in evidence in
a civil or criminal action.
(4) Nothing in this subsection shall be construed to
prevent a member of a fatality review team from testifying in
a criminal or civil proceeding to information obtained
independently of participation in the fatality review team or
to information which is publicly available.
(j) Criminal and civil liability protections.
(1) An individual who is not a member of a fatality
review team may, in good faith, provide information to a
fatality review team for the purposes of this section. A
member of a fatality review team may discuss confidential
matters during a meeting of the fatality review team. The
following shall apply:
(i) A member of a fatality review team shall comply
with applicable Federal and State laws regarding
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confidentiality.
(ii) Except as provided under paragraph (2), a
member of a fatality review team or an individual who, in
good faith, provides information to a fatality review
team may not be disciplined, criminally prosecuted or
held administratively or civilly liable for complying
with this section.
(2) The immunity specified under this subsection does
not apply to a member of a fatality review team or an
individual providing information to a fatality review team by
invitation who:
(i) rediscloses confidential information in a manner
not in accordance with Federal or State law; or
(ii) discloses confidential information to the
fatality review team with malice, in bad faith or in a
negligent manner.
Section 6. Chapter 5 of the act is repealed:
[CHAPTER 5
CRIMINAL HISTORY FOR EMPLOYEES
Section 501. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Applicant." An individual who submits an application, which
is being considered for employment, to a facility.
"State Police." The Pennsylvania State Police.
Section 502. Information relating to prospective facility
personnel.
(a) General rule.--A facility shall require all applicants
to submit with their applications, and shall require all
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administrators and any operators who have or may have direct
contact with a recipient to submit, the following information
obtained within the preceding one-year period:
(1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
history record information), a report of criminal history
record information from the State Police or a statement from
the State Police that their central repository contains no
such information relating to that person. The criminal
history record information shall be limited to that which is
disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to
general regulations).
(2) Where the applicant is not and for the two years
immediately preceding the date of application has not been a
resident of this Commonwealth, administration shall require
the applicant to submit with the application for employment a
report of Federal criminal history record information
pursuant to the Federal Bureau of Investigation's
appropriation under the Departments of State, Justice, and
Commerce, the Judiciary, and Related Agencies Appropriation
Act, 1973 (Public Law 92-544, 86 Stat. 1109). The department
shall be the intermediary for the purposes of this paragraph.
For the purposes of this paragraph, the applicant shall
submit a full set of fingerprints in a manner prescribed by
the department. The Commonwealth shall submit the
fingerprints to the Federal Bureau of Investigation for a
national criminal history record check. The information
obtained from the criminal record check shall be used by the
department to determine the applicant's eligibility. The
determination shall be submitted to the administrator by the
applicant prior to commencing employment. The administrator
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shall insure confidentiality of the information. The
provisions of 18 Pa.C.S. § 9121(b)(2) shall not apply if the
request for a report of Federal criminal history record
information is made pursuant to this section.
(b) (Reserved).
Section 503. Grounds for denying employment.
(a) General rule.--In no case shall a facility hire an
applicant or retain an employee required to submit information
pursuant to section 502(a) if the applicant's or employee's
criminal history record information indicates the applicant or
employee has been convicted of any of the following offenses:
(1) An offense designated as a felony under the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act.
(2) An offense under one or more of the following
provisions of 18 Pa.C.S. (relating to crimes and offenses):
Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 2901 (relating to kidnapping).
Section 2902 (relating to unlawful restraint).
Section 3121 (relating to rape).
Section 3122.1 (relating to statutory sexual
assault).
Section 3123 (relating to involuntary deviate sexual
intercourse).
Section 3124.1 (relating to sexual assault).
Section 3125 (relating to aggravated indecent
assault).
Section 3126 (relating to indecent assault).
Section 3127 (relating to indecent exposure).
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Section 3301 (relating to arson and related
offenses).
Section 3502 (relating to burglary).
Section 3701 (relating to robbery).
A felony offense under Chapter 39 (relating to theft
and related offenses) or two or more misdemeanors under
Chapter 39.
Section 4101 (relating to forgery).
Section 4114 (relating to securing execution of
documents by deception).
Section 4302 (relating to incest).
Section 4303 (relating to concealing death of child).
Section 4304 (relating to endangering welfare of
children).
Section 4305 (relating to dealing in infant
children).
Section 4952 (relating to intimidation of witnesses
or victims).
Section 4953 (relating to retaliation against witness
or victim).
A felony offense under section 5902(b) (relating to
prostitution and related offenses).
Section 5903(c) or (d) (relating to obscene and other
sexual materials and performances).
Section 6301 (relating to corruption of minors).
Section 6312 (relating to sexual abuse of children).
(3) A Federal or out-of-State offense similar in nature
to those crimes listed in paragraphs (1) and (2).
(c) Immunity.--An administrator or a facility shall not be
held civilly liable for any action directly related to good
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faith compliance with this section.
Section 504. Regulations.
The department, in consultation with the Department of Health
and the Department of Public Welfare, shall promulgate the
regulations necessary to carry out this chapter.
Section 505. Violations.
(a) Administrative.--
(1) An administrator who intentionally or willfully
fails to comply or obstructs compliance 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 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 license the facility 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 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
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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.
Section 506. Provisional employees for limited periods.
Notwithstanding section 502, administrators may employ
applicants on a provisional basis for a single period not to
exceed 30 days or, for applicants under section 502(a)(2), a
period of 90 days, if all of the following conditions are met:
(1) The applicant has applied for the information
required under section 502 and the applicant provides a copy
of the appropriate completed request forms to the
administrator.
(2) The administrator has no knowledge of information
pertaining to the applicant which would disqualify him from
employment pursuant to section 503, subject to 18 Pa.C.S. §
4911 (relating to tampering with public records or
information).
(3) The applicant swears or affirms in writing that he
is not disqualified from employment under section 503.
(4) If the information obtained under section 502
reveals that the applicant is disqualified from employment
under section 503, the applicant shall be immediately
dismissed by the administrator.
(5) The department shall develop guidelines regarding
the supervision of applicants. For a home health care agency,
supervision shall include random direct supervision by an
employee who has been employed by the facility for a period
of one year.
Section 507. State Police.
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No later than one year following the effective date of this
chapter, the State Police and the department shall report to the
Aging and Youth Committee of the Senate and the Aging and Youth
Committee of the House of Representatives with their findings
and recommendations regarding the implementation of this
chapter.
Section 508. Applicability.
This chapter shall apply as follows:
(1) An individual who, on the effective date of this
chapter, has continuously for a period of one year been an
employee of the same facility shall be exempt from section
502 as a condition of continued employment.
(2) If an employee is not exempt under paragraph (1),
the employee and the facility shall comply with section 502
within one year of the effective date of this chapter.
(3) If an employee who is exempt under paragraph (1)
seeks employment with a different facility, the employee and
the facility shall comply with section 502.
(4) An employee who has obtained the information
required under section 502 may transfer to another facility
established and supervised by the same owner and is not
required to obtain additional reports before making the
transfer.]
Section 7. The act is amended by adding chapters to read:
CHAPTER 5-A
REPORTING
Section 501-A. Voluntary reporting.
A person who knows or has reasonable cause to believe that an
older adult may be a victim of abuse may make an oral or
electronic report to an area agency on aging.
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Section 502-A. Mandatory reporting.
(a) Duty.--A mandatory reporter who knows or has reasonable
cause to suspect that an older adult may be a victim of abuse
shall:
(1) Immediately make an oral or electronic report to the
area agency on aging in accordance with the department's
process and procedures.
(2) Complete a written mandatory abuse report under
section 504-A to the area agency on aging within 48 hours in
accordance with the department's process and procedures.
(b) Assistance.--A mandatory reporter employee may request
assistance from the employee's administrator to complete a
written mandatory abuse report.
Section 503-A. Mandatory reporting to law enforcement officials
and department.
(a) Duty.--In addition to the reports to the area agency on
aging under section 502-A, a mandatory reporter who knows or has
reasonable cause to believe that an older adult may be a victim
of suspicious death, serious bodily injury, serious injury; or
rape, involuntary deviate sexual intercourse, sexual assault,
institutional sexual assault, statutory sexual assault,
aggravated indecent assault, indecent assault or incest as
defined by 18 Pa.C.S. (relating to crimes and offenses), shall:
(1) Immediately contact law enforcement officials and
the department to make an oral report.
(2) Make a written mandatory abuse report to law
enforcement officials within 48 hours.
(b) Duty of area agency on aging.--The area agency on aging
shall make a written mandatory abuse report under section 504-A
to the department within 48 hours in accordance with the
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department's process and procedures.
Section 504-A. Contents of report.
A written mandatory abuse report under this chapter shall be
prepared in a manner and on forms prescribed by the department.
At a minimum, the written mandatory abuse report shall include
the following information, as well as additional information
required by regulation:
(1) Name, age, sex and address of the older adult.
(2) Name and address of the older adult's legal
representative or next of kin.
(3) Name and address of the facility, if applicable.
(4) Nature and location of the reported incident and any
specific comment or observation directly related to the
alleged incident and the older adult involved.
(5) Any relevant information related to the identity of
the alleged abuser, including, name, age, sex and
relationship to the older adult.
(6) Name of the individual making the written mandatory
abuse report, contact information for the reporter and
information regarding any action taken by the reporter in
response to the incident, except as provided in section 506-
A(b).
Section 505-A. Coroner.
If there is reasonable cause to suspect that an older adult
died as a result of abuse, including a death within a coroner's
jurisdiction under 16 Pa.C.S. Ch. 139 (relating to coroner), an
area agency on aging shall give an oral or electronic report and
forward a copy of the written mandatory abuse report as provided
in section 504-A to the appropriate coroner within 24 hours. The
coroner shall maintain the confidentiality of the written
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mandatory abuse report.
Section 506-A. Protecting identity of reporter and cooperating
witnesses.
(a) Prohibition.--Except for disclosures to law enforcement
officials and coroners, the release of records that would
identify a person who made a report under this chapter or a
person that cooperated in a subsequent investigation is
prohibited and the records are exempt from inspection and
duplication under the act of February 14, 2008 (P.L.6, No.3),
known as the Right-to-Know Law.
(b) Identity protection.--If a record is provided pursuant
to a court order, the identity of the reporter and cooperating
witnesses shall be deleted unless otherwise ordered by the court
after an in camera review.
CHAPTER 6-A
FINANCIAL INSTITUTIONS
Section 601-A. (Reserved).
Section 602-A. Reporting suspected financial exploitation.
(a) Report to designated representative.--If a financial
institution employee has reason to believe that financial
exploitation of an older adult may have occurred, may have been
attempted or is being attempted, the financial institution
employee shall, within the same business day, promptly report to
a designated representative of the financial institution.
(b) Review of report from financial institution employee and
further reporting.--
(1) No later than five business days after receipt of
the report from the financial institution employee, the
designated representative of the financial institution shall
evaluate the report.
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(2) If, upon review, the designated representative of
the financial institution concludes there is reasonable cause
to believe financial exploitation may have occurred, has been
attempted or is being attempted, the designated
representative of the financial institution shall immediately
report the information to an area agency on aging and a law
enforcement agency, who shall follow reporting protocols
specified by the department.
(3) A report made to an agency under this subsection
shall provide:
(i) The name, age and address of the older adult.
(ii) The name and address, if known, of the older
adult's guardian, fiduciary or next of kin.
(iii) The name and address of the financial
institution and contact information for the individual
submitting the report.
(iv) The nature of the suspected financial
exploitation of the older adult.
(v) Any specific comment, observation or other
information directly related to the alleged incident, the
older adult and suspected perpetrator of the financial
exploitation the financial institution determines is
needed to facilitate investigation of the report.
(vi) Whether a financial institution took an action
authorized under section 603-A.
(c) Construction.--Nothing in this section shall be
construed to prevent a designated representative of the
financial institution from voluntarily filing a report of need
for an older adult potentially in need of protective services.
Section 603-A. Holding transactions.
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(a) Authorization to financial institutions.--If a financial
institution or a financial institution employee has reasonable
cause to believe that financial exploitation of an older adult
may have occurred, may have been attempted or is being
attempted, the financial institution may take, subject to
subsection (c), any of the following actions to temporarily hold
a financial transaction pending an investigation:
(1) Hold or temporarily refuse one or more financial
transactions of the older adult.
(2) Hold the withdrawal or disbursement of money
contained in the older adult's account.
(3) Hold a change in ownership of the older adult's
account.
(4) Hold a transfer of money from the older adult's
account to an account owned wholly or partially by another
person.
(5) Hold complying with instructions given to the
financial institution by a person who is authorized to have
access to the older adult's account.
(6) Hold the designation or change the designation of
beneficiaries to receive any property, benefit, or contract
rights for an older adult at death.
(b) Duty to report.--If a financial institution takes action
under subsection (a), the financial institution shall file a
report under section 602-A no later than the next business day.
(c) Conditions of holding a financial transaction.--
Authority to hold a financial transaction under subsection (a)
shall be as follows:
(1) Subject to paragraphs (2) and (3), the financial
transaction hold shall last for no longer than seven days
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after the date of the initial hold.
(2) The authority granted to a financial institution
under subsection (a) regarding holding financial transactions
may be extended beyond seven days for an additional 15
business days at the request of an area agency on aging, a
law enforcement agency or a legal representative of the older
adult, or if the financial institution has not received a
request to extend or terminate a hold from an area agency on
aging, a law enforcement official or a legal representative
of the older adult. A request by an area agency on aging, a
law enforcement agency or a legal representative of an older
adult to hold or authorize a financial transaction must be
based on cause and be documented in writing.
(3) A hold issued under subsection (a) may end sooner
than the period described in paragraph (1) or (2) if any of
the following applies:
(i) The financial institution has reasonable cause
to believe the financial transaction will not result in
the financial exploitation of an older adult.
(ii) The financial institution is instructed by a
person who is authorized to have access to the older
adult's account and is not suspected to be the
perpetrator, an area agency on aging, law enforcement, or
the department to cease its hold of a financial
transaction or action taken under subsection (a).
(iii) The financial institution is ordered by a
court of competent jurisdiction to cease the hold.
(d) Notification.--
(1) Except as provided under Federal or State law, if a
financial institution takes an action authorized under
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subsection (a), the designated representative of the
financial institution shall have the following duties:
(i) Within one business day, notify the older adult
and any person authorized to transact business on the
account, except for a person reasonably believed to have
engaged in suspected or attempted financial exploitation
of the older adult.
(ii) Within five business days, notify any person
authorized by the older adult to receive notifications
regarding account activity, except for a person
reasonably believed to have engaged in suspected or
attempted financial exploitation of the older adult.
(2) The notification under paragraph (1) shall:
(i) State the financial institution has temporarily
blocked the disbursement of money or held the execution
of a financial transaction as authorized by this section
to protect the older adult from financial exploitation.
(ii) Provide the name of the financial institution
and the telephone number or other contact information of
the financial institution for details about the action
taken under this section.
(iii) Identify the account or financial transaction
to which the notification applies.
(3) Notifications required by this subsection may be
given:
(i) in writing;
(ii) in an electronic record in the manner
authorized by section 304 of the act of December 16, 1999
(P.L.971, No.69), known as the Electronic Transactions
Act; or
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(iii) orally, if a record of the oral communication
is contemporaneously made and is retained by the
financial institution.
Section 604-A. Model training program.
The department, in consultation with the Department of
Banking and Securities and representatives of the financial
services industry, shall develop a model training program for
financial institution employees and designated representatives
of financial institutions regarding the identification of
activities that constitute financial exploitation of older
adults.
Section 605-A. Assistance by a person who is authorized to have
access to the older adult's account.
(a) Authorization.--Notwithstanding any other provision of
law limiting or prohibiting disclosure, a designated
representative of a financial institution may provide
information relating to the account of an older adult to a
person authorized to access the older adult's account sufficient
to enable the person to:
(1) consult with or assist the older adult in avoiding
or remedying suspected financial exploitation; or
(2) exercise the person's authority to protect the older
adult.
(b) Applicability.--Subsection (a) does not apply if the
financial institution has reason to believe the person is
knowingly engaged in or facilitating the financial exploitation
of the older adult.
(c) Disclosure of information.--Except when contacting an
authorized contact provided by an older adult to a financial
institution, a fiduciary authorized to manage some or all of the
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financial affairs of the older adult or a co-owner, additional
authorized signatory or other person authorized to transact
business on the account of the older adult, a designated
representative of a financial institution:
(1) May disclose only that there is reasonable cause to
suspect that the older adult may be a victim or target of
financial exploitation and the nature of the suspected
financial exploitation.
(2) May not disclose other details or confidential
personal information regarding the financial affairs of the
older adult.
Section 606-A. Access to records.
(a) Authorization.--Notwithstanding section 306-A, a
financial institution that submitted a report to an area agency
on aging under section 602-A regarding the financial
exploitation or attempted financial exploitation of an older
adult may:
(1) Include in the report copies of records of financial
transactions that are relevant to the suspected financial
exploitation or attempted financial exploitation of the older
adult.
(2) Provide access to the records described under
paragraph (1) to the area agency on aging to which the report
is submitted.
(b) Copies.--
(1) A financial institution shall:
(i) Upon written request of the area agency on aging
or a law enforcement agency, provide, at no cost, access
to or copies of records that are reasonably relevant to
the suspected financial exploitation or attempted
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financial exploitation of the older adult to an area
agency on aging, a law enforcement agency or the
department, for the purpose of performing an
investigation of the suspected financial exploitation or
attempted financial exploitation.
(ii) In response to a request for records under this
section, provide access to or copies of records under
this section within two business days. Records under this
section may include records regarding the most recent
financial transaction or other prior financial
transactions that may constitute financial exploitation,
not to exceed 60 calendar days prior to the first
financial transaction that was reported or 60 calendar
days after the last financial transaction that was
reported, whichever is earlier.
(2) Records under this section may also include, or may
be subsequently supplemented by, records of the older adult
that a financial institution believes, upon consultation with
an area agency on aging, are needed to provide protective
services to the older adult.
(c) Confidentiality.--
(1) Information and records submitted by a financial
institution to an area agency on aging, the department or a
law enforcement agency shall be privileged and given
confidential treatment and:
(i) Shall not be subject to discovery or admissible
as evidence in a private civil action.
(ii) Shall not be subject to subpoena.
(iii) Shall be exempt from access under the act of
February 14, 2008 (P.L.6, No.3), known as the Right-to-
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Know Law.
(iv) Except as provided in paragraph (3), shall not
be made public by the any person without the prior
written consent of the financial institution.
(2) An employee of an area agency on aging, the
department, a law enforcement agency, or any other person who
receives information under chapter while acting under the
authority of the area agency on aging, the department, a law
enforcement agency or a person with whom the information is
shared under this chapter may not testify in a private civil
action concerning confidential information in the
transparency report.
(3) To assist in the performance of duties, an area
agency on aging, the department or a law enforcement agency
may:
(i) Use information submitted under this section in
furtherance of a administrative or legal action brought
under this act or the laws of this Commonwealth.
(ii) Share information submitted under this section
with other government agencies or law enforcement
officials of this Commonwealth or other jurisdictions and
third-party consultants if, prior to receiving the
reports from a financial institution under this chapter,
the recipient demonstrates by written statement the
necessary authority and intent to give confidential
treatment to the information as required by this section.
(4) Sharing of information by a financial institution
under this section with, to or by an area agency on aging,
the department or a law enforcement agency as authorized by
this chapter does not constitute a waiver of any applicable
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privilege or claim of confidentiality.
(d) Disclosures regarding investigations.--Notwithstanding
the requirements of section 306-A, an area agency on aging may
disclose and discuss with a financial institution reports of the
financial exploitation of an older adult and the results of the
investigation of reports to the extent reasonably necessary to
facilitate the financial institution's authority under section
602-A(b) to:
(1) hold a financial transaction;
(2) consult with a person authorized to have access to
the older adult's account under section 602-A(c); or
(3) produce records requested under section 603-A.
Section 607-A. Annual Reporting on Financial Exploitation.
No later than six months following the effective date of this
subsection and by December 31 thereafter, a financial
institution shall submit information to the department, which
shall be included in the department's older adult protective
services annual report. Information reported by a financial
institution under this section shall include the following:
(1) The number of reports made by the financial
institution under section 603-A including:
(i) The number of occasions in which the financial
institution was contacted as part of an investigation of
potential financial exploitation by an area agency on
aging or law enforcement agency resulting from a report
made by the financial institution.
(ii) The average time in between the financial
institution making a report under section 602-A and the
first contact by an area agency on aging or law
enforcement agency.
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(2) The total number, dollar value and types of
financial transaction held by the financial institution under
section 602-A(b) during the preceding 12 months. This shall
include:
(i) Each category of transaction.
(ii) The number and dollar value of the transactions
that were confirmed after investigation to represent
financial exploitation or attempted financial
exploitation.
(iii) The number and dollar value of the
transactions that were confirmed after investigation to
not represent financial exploitation or attempted
financial exploitation.
(iv) The number and categories of transactions in
which an extension was requested in accordance with
section 603-A(c).
(v) The number and value of transactions that were
released in seven business days or less.
Section 608-A. Estate planning by affidavit.
A financial institution may rely on an affidavit executed by
an attorney for an older adult, or certification or legal
opinion by an attorney acting as an agent for an older adult as
provided under 20 Pa.C.S. § 5608 (relating to acceptance of and
reliance upon power of attorney), as conclusive proof that a
transaction does not represent financial exploitation if the
following apply:
(1) The affidavit states that the transaction in
question is for the purpose of establishing, implementing or
continuing an estate plan intended to reduce taxes or to
qualify the older adult or the spouse of the older adult for
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public or private benefits.
(2) The attorney, as part of estate planning under this
section, furnishes the affidavit to a designated
representative of the financial institution relying upon the
affidavit on demand.
Section 609-A. Penalties.
(a) Failure to report.--If a designated representative of a
financial institution willfully or intentionally fails to file a
report required under section 603-A, the financial institution
shall be subject to a penalty levied by the department, which
shall not be less than $500 nor exceed $2,500.
(b) Additional penalties.--A designated representative of
the financial institution or officer of a financial institution
who willfully or intentionally aids in the financial
exploitation of an older adult or commits retaliatory actions
against a designated representative or other employee of the
financial institution because of an attempt to comply with this
chapter shall be subject to criminal and civil penalties under
section 801-A, along with any other applicable provision of law.
(c) Consultation.--The department shall consult and notify
the primary regulator of a financial institution for:
(1) An investigation of the financial institution for
potential violations of this chapter, including notifying the
financial institution's primary regulator that an
investigation into a potential penalty under this chapter has
been initiated.
(2) Penalties under this section assessed against a
financial institution utilizing a matrix developed by the
department in consultation with the Department of Banking and
Securities.
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Section 610-A. Immunity.
A person acting in good faith, according to this chapter,
shall have immunity from liability for providing access to
records or holding a transaction in accordance with this
chapter.
Section 611-A. Financial institution compliance policies.
A financial institution shall create and implement internal
compliance policies, plans and procedures to comply with this
act.
Section 8. Chapter 7 of the act is repealed:
[CHAPTER 7
REPORTING SUSPECTED ABUSE BY EMPLOYEES
Section 701. 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 shall
immediately make an oral report to the 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 employee may request the administrator to make
or to assist the employee to make the oral and written
reports required by this subsection.
(b) Mandatory reports to law enforcement officials.--
(1) An employee or an administrator who has reasonable
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cause to suspect that a recipient is the victim of sexual
abuse, serious physical injury or serious bodily injury or
that a death is suspicious shall, in addition to contacting
the agency and the department, immediately contact law
enforcement officials to make an oral report. An employee
shall notify the administrator immediately following the
report to law enforcement officials.
(2) Within 48 hours of making the oral report, the
employee and an administrator shall make a 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.
(4) The employee may request the administrator to make
or to assist the employee to make the oral and written
reports to law enforcement required by this subsection.
(c) Contents of report.--A written report under this section
shall be 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 or next
of kin.
(3) Name and address of the facility.
(4) Nature of the alleged offense.
(5) Any specific comments or observations that are
directly related to the alleged incident and the individual
involved.
Section 702. Reports to department and coroner.
(a) Department.--
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(1) Within 48 hours of receipt of a written report under
section 701(a) involving sexual abuse, serious physical
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, the following information:
(i) The name and address of the alleged victim.
(ii) Where the suspected abuse occurred.
(iii) The age and sex of the alleged perpetrator and
victim.
(iv) The nature and extent of the suspected abuse,
including any evidence of prior abuse.
(v) The name and relationship of the individual
responsible for causing the alleged abuse to the victim,
if known, and any evidence of prior abuse by that
individual.
(vi) The source of the report.
(vii) The individual making the report and where
that individual can be reached.
(viii) The actions taken by the reporting source,
including taking of photographs and x-rays, removal of
recipient and notification under subsection (b).
(ix) Any other information which the department may
require by regulation.
(b) Coroner.--For a report under section 701(a) which
concerns the death of a recipient, if there is reasonable cause
to suspect that the recipient died as a result of abuse, the
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agency shall give the oral report and forward a copy of the
written report to the appropriate coroner within 24 hours.
Section 703. Investigation.
(a) Law enforcement officials.--Upon receipt of a report
under section 701(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 physical injury, serious bodily injury or a
suspicious death, law enforcement officials shall notify the
agency.
(c) Cooperation.--To the fullest extent possible, law
enforcement officials, the facility and the agency shall
coordinate their respective investigations. Law enforcement
officials, the facility and the agency shall advise each other
and provide any applicable additional information on an ongoing
basis.
(d) Further notification.--Law enforcement officials shall
notify the agency and the facility of a decision regarding
criminal charges. The agency and the department 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 Chapter
3.
Section 704. Restrictions on employees.
(a) Plan of supervision.--Upon notification that an employee
is alleged to have committed abuse, the facility shall
immediately implement a plan of supervision or, where
appropriate, suspension of the employee, subject to approval by
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the agency and by the Commonwealth agency with regulatory
authority over the facility. A plan of supervision for a home
health care agency must include periodic random direct
inspections of care-dependent individuals by a facility employee
who has been continuously employed by that facility for a period
of at least one year.
(b) Prohibition.--Upon the filing of criminal charges
against an employee, the Commonwealth agency which licenses the
facility shall order the facility to immediately prohibit that
employee from having access to recipients at the facility. If
that employee is a director, operator, administrator or
supervisor, that employee shall be subject to restrictions
deemed appropriate by the Commonwealth agency which licenses the
facility to assure the safety of recipients of the facility.
Section 705. Confidentiality of and access to confidential
reports.
(a) General rule.--Except as provided in subsection (b), a
report under this chapter shall be confidential.
(b) Exceptions.--A report under this chapter shall be made
available to all of the following:
(1) An employee of the department or of an agency in the
course of official duties in connection with responsibilities
under this chapter.
(2) An employee of the Department of Health or the
Department of Public Welfare in the course of official
duties.
(3) An employee of an agency of another state which
performs protective services similar to those under this
chapter.
(4) A practitioner of the healing arts who is examining
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or treating a recipient and who suspects that the recipient
is in need of protection under this chapter.
(5) The director, or an individual specifically
designated in writing by the director, of any hospital or
other medical institution where a victim is being treated if
the director or designee suspects that the recipient is in
need of protection under this chapter.
(6) A guardian of the recipient.
(7) A court of competent jurisdiction pursuant to a
court order.
(8) The Attorney General.
(9) Law enforcement officials of any jurisdiction as
long as the information is relevant in the course of
investigating cases of abuse.
(10) A mandated reporter under Chapter 3 who made a
report of suspected abuse. Information released under this
paragraph shall be limited to the following:
(i) The final status of the report following the
investigation.
(ii) Services provided or to be provided by the
agency.
(c) Excision of certain names.--The name of the person
suspected of committing the abuse shall be excised from a report
made available under subsection (b)(4), (5) and (10).
(d) Release of information to alleged perpetrator and
victim.--Upon written request, an alleged perpetrator and victim
may receive a copy of all information except that prohibited
from being disclosed by subsection (e).
(e) Protecting identity of person making report.--Except for
reports to law enforcement officials, the release of data that
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would identify the individual who made a report under this
chapter or an individual who cooperated in a subsequent
investigation is prohibited. Law enforcement officials shall
treat all reporting sources as confidential information.
Section 706. Penalties.
(a) Administrative.--
(1) An administrator who intentionally or willfully
fails to comply or obstructs compliance with the provisions
of this chapter or who 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 the facility 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 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
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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 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.
Section 707. Immunity.
An administrator or a facility shall not be held civilly
liable for any action directly related to good faith compliance
with this chapter.
Section 708. Regulations.
The Department of Aging, the Department of Health and the
Department of Public Welfare shall promulgate the regulations
necessary to carry out this chapter.]
Section 9. The act is amended by adding chapters to read:
CHAPTER 7-A
CRIMINAL HISTORY
Section 701-A. Criminal history.
(a) Submission.--
(1) A person listed in subsection (c) shall submit a
full set of fingerprints in a manner prescribed by the
Pennsylvania State Police.
(2) The Pennsylvania State Police shall check the
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fingerprints against the Pennsylvania State Police central
repository for the purpose of a State criminal history record
check. Under 18 Pa.C.S. Ch. 91 (relating to criminal history
record information), a report of criminal history record
information, obtained within the preceding one-year period
from the Pennsylvania State Police, or a statement from the
Pennsylvania State Police that the central repository
contains no information relating to that person shall be
submitted to the department. The criminal history record
information shall be limited to information which is
disseminated under 18 Pa.C.S. § 9121(b)(2) (relating to
general regulations).
(3) The Pennsylvania State Police shall submit a full
set of fingerprints to the Federal Bureau of Investigation
for a national criminal history record check. The
Pennsylvania State Police will provide the department with
the national criminal history record information of the
individual. The information under this subsection shall not
be limited by 18 Pa.C.S. § 9121(b). The Department shall be
guided by federal law, state law, and Criminal Justice
Information Services policy.
(b) Determination.--The information obtained from the
criminal history record checks under subsection (a) shall be
used by the department to determine eligibility under section
702-A. The determination shall be submitted to the individual
and the administrator by the department prior to employment
commencing except as specified in section 703-A.
(c) Scope.--The following individuals shall submit to the
criminal history information inquiry required under subsection
(a):
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(1) An applicant.
(2) A prospective administrator who has or may have
direct contact with a recipient.
(3) A prospective operator who has or may have direct
contact with a recipient.
(d) Written notice of new arrest or conviction.--
(1) If an employee is arrested for or convicted of an
offense that would constitute grounds for denying employment
under section 702-A, the employee shall provide written
notice of the arrest or conviction to the administrator or
designee not later than 72 hours after the arrest or
conviction.
(2) If the person responsible for employment decisions
or the administrator has a reasonable belief that an employee
was convicted of an offense that would constitute grounds for
denying employment under section 702-A, or the employee has
provided notice as required under paragraph (1), the person
or the administrator shall immediately require the employee
to submit current information as required under subsection
(a).
Section 702-A. Grounds for denying employment.
(a) Prohibited offenses.--The following offenses, and
Federal or out-of-State offenses similar in nature, shall be
prohibited as follows:
(1) Subject to subsection (b), a facility may not hire
an applicant or retain an employee for a period of 35 years
from the individual's release or discharge from a Federal,
State or county correctional institution or from termination
of supervised probation or parole, whichever is later, if the
department determines that the applicant's or employee's
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criminal history record information indicates that the
applicant or employee has been convicted of an offense or
attempt, solicitation or conspiracy to commit an offense
under one of the following provisions of 18 Pa.C.S. (relating
to crimes and offenses):
(i) Chapter 25 (relating to criminal homicide).
(ii) Section 2718 (relating to strangulation).
(iii) Section 3011 (relating to trafficking in
individuals).
(iv) Section 3121 (relating to rape).
(v) Section 3123 (relating to involuntary deviate
sexual intercourse).
(vi) Section 3124.2 (relating to institutional
sexual assault).
(2) Subject to subsection (b), a facility may not hire
an applicant or retain an employee for a period of 20 years
after the individual's release or discharge from a Federal,
State or county correctional institution or from termination
of supervised probation or parole, whichever is later, if the
department determines that the applicant's or employee's
criminal history record information indicates the applicant
or employee has been convicted of an offense or attempt,
solicitation or conspiracy to commit an offense under one of
the following provisions of 18 Pa.C.S.:
(i) Chapter 26 (relating to crimes against unborn
child).
(ii) Section 2702 (relating to aggravated assault).
(iii) Section 2713 (relating to neglect of care-
dependent person).
(iv) Section 2715 (relating to threat to use weapons
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of mass destruction).
(v) Section 2716 (relating to weapons of mass
destruction).
(vi) Section 2717 (relating to terrorism).
(vii) Section 2901 (relating to kidnapping).
(viii) Section 2903 (relating to false
imprisonment).
(ix) Section 3122.1 (relating to statutory sexual
assault).
(x) Section 3124.1 (relating to sexual assault).
(xi) Section 3125 (relating to aggravated indecent
assault).
(xii) Section 3126 (relating to indecent assault).
(xiii) Section 3129 (relating to sexual intercourse
with animal).
(xiv) Section 3212 (relating to infanticide).
(xv) Section 4302 (relating to incest).
(xvi) Section 4303 (relating to concealing death of
child).
(xvii) A felony offense under section 4304 (relating
to endangering welfare of children).
(xviii) Section 4305 (relating to dealing in infant
children).
(xix) Section 5510 (relating to abuse of corpse).
(xx) Section 5903(a)(1), (3)(ii), (5)(ii) or (6),
(c) or (d) (relating to obscene and other sexual
materials and performances).
(xxi) Section 6312 (relating to sexual abuse of
children).
(xxii) Section 6318 (relating to unlawful contact
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with a minor).
(xxiii) Section 6319 (relating to solicitation of
minors to traffic drugs).
(xxiv) Section 6320 (relating to the sexual
exploitation of children).
(3) Subject to subsection (b), a facility may not hire
an applicant or retain an employee for a period of 10 years
from the individual's release or discharge from a Federal,
State or county correctional institution or from termination
of supervised probation or parole, whichever is later, if the
department determines that the applicant's or employee's
criminal history record information indicates that the
applicant or employee has been convicted of an offense or
attempt, solicitation or conspiracy to commit an offense
under one of the following provisions of 18 Pa.C.S.:
(i) Section 2710 (relating to ethnic intimidation).
(ii) Section 2902 (relating to unlawful restraint).
(iii) A felony offense under section 2904 (relating
to interference with custody of children).
(iv) Section 2909 (relating to concealment of
whereabouts of a child).
(v) Section 3127 (relating to indecent exposure).
(vi) Section 3131 (relating to unlawful
dissemination of intimate image).
(vii) Section 3301 (relating to arson and related
offenses).
(viii) Section 3502 (relating to burglary).
(ix) Section 3701 (relating to robbery).
(x) Section 3702 (relating to robbery of motor
vehicle).
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(xi) A felony offense under Chapter 39 (relating to
theft and related offenses).
(xii) Section 4101 (relating to forgery).
(xiii) Section 4103 (relating to fraudulent
destruction, removal or concealment of recordable
instruments).
(xiv) Section 4106 (relating to access device
fraud).
(xv) Section 4114 (relating to securing execution of
documents by deception).
(xvi) Section 4115 (relating to falsely
impersonating persons privately employed).
(xvii) Section 4120 (relating to identity theft).
(xviii) A misdemeanor of the first degree under
section 4304.
(xix) Section 4952 (relating to intimidation of
witnesses or victims).
(xx) Section 4953 (relating to retaliation against
witness, victim or party).
(xxi) A felony offense under section 5902(b)
(relating to prostitution and related offenses).
(xxii) Section 5902(b.1).
(xxiii) Section 5903(c) or (d).
(xxiv) Section 6301 (relating to corruption of
minors).
(xxv) Two or more misdemeanors under Chapter 39.
(4) Subject to subsection (b), a facility may not hire
an applicant or retain an employee for a period of five years
from the individual's release or discharge from a Federal,
State or county correctional institution or from termination
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of supervised probation or parole, whichever is later, if the
department determines that the applicant's or employee's
criminal history record information indicates that the
applicant or employee has been convicted of an offense under
one of the following provisions of 18 Pa.C.S.:
(i) Any of the following provisions of 75 Pa.C.S.
(relating to vehicles):
(A) Section 3735 (relating to homicide by
vehicle while driving under influence).
(B) Section 3735.1 (relating to aggravated
assault by vehicle while driving under the
influence).
(C) Section 3742 (relating to accidents
involving death or personal injury).
(D) Section 3802 (relating to driving under
influence of alcohol or controlled substance) graded
as a misdemeanor of the second degree or higher.
(ii) An offense designated as a felony under the act
of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act.
(iii) A misdemeanor of the first degree or a felony
under 18 Pa.C.S. § 4105 (relating to bad checks).
(iv) Two or more misdemeanors under 18 Pa.C.S. Ch.
39 (relating to theft and related offenses).
(v) Two or more misdemeanors under 18 Pa.C.S. § 2705
(relating to recklessly endangering another person).
(vi) Convictions listed under subparagraph (i) shall
be prohibited if the position the applicant is applying
for or the employee is performing includes driving or
transporting older adults.
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(5) Modifications to prohibited offenses.
(i) The secretary may periodically review and, by
regulation, modify the lists of prohibited offenses under
subsection (a). The secretary may add additional offenses
to the lists of prohibited offenses in subsections (a)
(1), (a)(2), (a)(3) and (a)(4). The secretary may remove
offenses enumerated in the list of prohibited offenses in
subsections (a)(3) and (a)(4). In making a decision to
promulgate a regulation modifying the list of prohibited
offenses, the secretary shall consider whether:
(A) The modification poses a significant and
unacceptable level of risk to older adults.
(B) The modification does not impede safe and
efficient job performance.
(C) The prohibition is related to the job
positions subject to the relevant employment bans
under this subsection.
(D) The underlying conduct related to the
offense makes an individual unfit for a job position
subject to the prohibitions on hiring and retention
under this subsection.
(E) The prohibition is consistent with the
business necessity of ensuring protections for older
adults.
(F) The underlying conduct related to the
offense is relevant to a job position subject to the
prohibitions on hiring and retention under this
subsection.
(G) The underlying conduct related to the
offense is relevant to the purpose of employment.
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(ii) After considering the factors in this
paragraph, the secretary shall make findings and issue a
regulation modifying the list if the secretary finds the
modification is consistent with maintaining a qualified
workforce that promotes and ensures the safety of older
adults.
(b) Waiver request.--
(1) Unless prohibited by Federal law, the department may
grant a waiver of the prohibitions on hiring and retention
under subsection (a) in accordance with this subsection after
submission of a written waiver request by an applicant,
employee or employer.
(2) The waiver request must be submitted on a form
provided by the department and contain the following:
(i) The length of time since the applicant's or
employee's conviction.
(ii) The nature and circumstances of the applicant's
or employee's conviction.
(iii) If the applicant or employee was incarcerated,
a copy of the order from the Federal, State or local
jurisdiction that released the individual from
incarceration, including the date of release.
(iv) Evidence of the applicant's or employee's
rehabilitation.
(v) The nature of and requirements of the job.
(vi) The relationship of the offense to the
applicant's or employee's current or prospective job
position.
(vii) A copy of any previously approved waiver
request.
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(viii) If available and applicable, a letter from
the individual's probation or parole officer.
(ix) The facility type for which the applicant is
seeking or retaining employment or the facility type that
has an interest in potentially hiring or retaining the
applicant.
(x) A letter from the current or prospective
employer indicating, if applicable, an interest in
potentially hiring or retaining the applicant or employee
if a waiver request is granted.
(xi) The applicant's age relevant to the applicant's
potential longevity for future employment.
(3) The department may review and consider additional
relevant information or factors in making its determination.
(c) Waiver approval.--The department shall review and issue
a decision on approval or denial of the waiver request not later
than 30 days after receipt of the written waiver request. The
department shall specify each offense waived by the department
and each offense that has been denied a waiver request with the
department's decision.
(d) Applicability.--
(1) A waiver request granted under this section applies
only to the offense and facility type listed on the waiver
application.
(2) If granted, the waiver shall remain in place
indefinitely and be transferrable to the same or similar
position with an employer of an applicable facility type.
(3) The waiver shall not apply if the applicant or
employee attempts to secure new employment for a
substantially different position.
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(e) Limitations.--
(1) The grant of a waiver request by the department does
not guarantee hiring or retention of employment to the
applicant or employee.
(2) In addition to the notice requirements of Section
701-A(d), if any new criminal charges are filed against an
applicant or employee who has obtained a waiver from the
department, the applicant or employee must report the new
criminal charges to both the employer and the department not
later than seven days after the charges were filed.
(3) If the new conviction is prohibited under this act,
the applicant or employee must submit a new waiver request.
(4) If a waiver request is denied, an individual may
resubmit a new waiver request once every five years.
(f) Appeal rights.--
(1) If the department denies a request for a waiver
under this section, the person whose request was denied shall
have 20 days to submit a written appeal to the secretary.
(2) Upon receipt of a notice of appeal, the secretary
shall have 30 days to complete a review of the relevant facts
and circumstances and issue a final decision.
(3) If the secretary fails to issue a final decision
within the 30 days, the appeal shall be deemed denied.
(4) All final decisions by the secretary shall be
reviewable in accordance with the laws of this Commonwealth.
(g) Duties and responsibilities of department.--
(1) Not later than 60 days after the effective date of
this paragraph, the department shall develop a waiver request
form.
(2) Not later than 90 days after the effective date of
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this paragraph, the department shall develop a procedure for
hearing appeals resulting from department denials of waiver
request applications.
(h) Date of release or discharge.--To determine an
individual's release, discharge or termination of supervision,
the individual must provide to the department, upon request,
documentation relating to the individual's release or discharge
from a Federal, State or county correctional institution or from
termination of supervised probation or parole.
(i) Penalties.--An individual who willfully fails to
disclose a conviction for an offense enumerated under subsection
(a) shall be subject to termination and may be subject to
criminal prosecution under 18 Pa.C.S. § 4904 (relating to
unsworn falsification to authorities).
(j) Construction.--This section may not be construed to
require a current employee of a facility to obtain a waiver
pertaining to the employee's current employment or for an
application at the same facility for a substantially similar
position as the employee's current position.
Section 703-A. Provisional employees for limited periods.
(1) A facility may employ an applicant on a provisional
basis for a single period not to exceed 60 days, if all of
the following conditions are met:
(i) The applicant has applied and submitted
fingerprints for a criminal history record information
report required under section 701-A(a)(1) and (2) and
provided the facility with a copy of the completed
request forms.
(ii) The facility has no knowledge about the
applicant that would disqualify the applicant from
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employment under 18 Pa.C.S. § 4911 (relating to tampering
with public records or information).
(iii) The applicant swears or affirms in writing
that the applicant is not disqualified from employment
under this act.
(2) If the information obtained from the criminal
history record information report required under section 701-
A reveals that the applicant is disqualified from employment,
the applicant shall be dismissed immediately.
(3) If an individual has been employed at a facility on
a provisional basis in accordance with paragraphs (1) and
(2), but the department has not completed its determination
prior to the expiration of 60 days under this section, the
individual may remain employed on a provisional basis until
the department has made a determination or for 30 days,
whichever is earlier.
(4) The department shall develop guidelines, in
consultation with the Department of Health and the Department
of Human Services, regarding the supervision of applicants.
Supervision shall include direct supervision by an employee
who has been employed by the facility for a period of at
least one year.
Section 704-A. Compliance.
(a) Immunity.--A facility may not be held civilly or
criminally liable or subject to administrative penalties for
hiring decisions under this chapter in which the facility
complies or makes a good faith effort in any of the following
circumstances to comply with the requirements of this chapter,
including any subsequent rule or regulation issued by the
department to effectuate the hiring or retention of an
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applicant, relating to:
(1) Hiring or retention of an applicant through the use
of a waiver in accordance with section 702-A or regulations
promulgated by the department to effectuate section 702-A.
(2) A decision by a facility to not hire or retain an
applicant or employee even if the applicant or employee
receives a waiver.
(b) Limitation.--
(1) Immunity from civil, criminal or administrative
penalties under this section may not be construed as applying
beyond the decision to hire or not hire an applicant or
retain or not retain an employee under this chapter and does
not extend to the conduct of an applicant while employed by a
facility.
(2) This section may not be construed to be or used as a
defense for a facility failing to meet the obligations
required under this act pertaining to management and
oversight of individuals applying for employment or employed
by the facility.
CHAPTER 8-A
REMEDIES
Section 801-A. Penalties.
(a) Administrative and civil penalties.--
(1) A mandatory reporter who fails to comply or
obstructs compliance with the provisions of this act or who
intimidates or commits a retaliatory act against an
individual who complies in good faith with this act commits a
violation of this act and shall be subject to an
administrative penalty.
(2) The department shall have jurisdiction to determine
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violations of this act and may issue an order assessing a
civil penalty of not more than $5,000. An order under this
paragraph is subject to 2 Pa.C.S. Chs. 5 Subch. A (relating
to practice and procedure of Commonwealth agencies) and 7
Subch. A (relating to judicial review of Commonwealth agency
action).
(3) A Commonwealth agency that licenses a facility shall
have jurisdiction regarding violations of section 701-A and
may issue an order assessing a civil penalty not to exceed
$5,000.
(4) An older adult or a person making a report or
cooperating with the area agency on aging, including
providing testimony in an administrative or judicial
proceeding, shall be free from discriminatory, retaliatory or
disciplinary action by an employer or any other person or
facility. A person who violates this paragraph shall be
subject to a civil action by the reporter or the older adult.
The older adult or person making a report or cooperating with
the area agency on aging may recover treble compensatory
damages, compensatory and punitive damages or $5,000,
whichever is greater.
(5) A person, including the older adult, with knowledge
sufficient to justify making a report or cooperating with the
area agency on aging, including providing testimony in an
administrative or judicial proceeding, shall be free from
intimidation by an employer or any other person. A person who
violates this paragraph shall be subject to a civil action by
the individual intimidated or the older adult. The person
intimidated or the older adult may recover treble
compensatory damages, compensatory and punitive damages or
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$5,000, whichever is greater.
(b) Criminal penalties.--
(1) A mandatory reporter who intentionally fails to
report suspected abuse of an older adult commits a summary
offense for the first violation and a misdemeanor of the
second degree for a second or subsequent violation and shall,
upon conviction, be sentenced to pay a fine of not more than
$5,000 or to imprisonment for not more than one year, or
both.
(2) A person who intentionally makes a false statement
or representation of a material fact in a report of need
commits a misdemeanor of the first degree and shall, upon
conviction, be sentenced to pay a fine of not more than
$10,000 or to imprisonment for not more than five years, or
both.
Section 802-A. Immunity from civil and criminal liability.
(1) A person who makes a report of need or who provides
testimony in an administrative or judicial proceeding in a
court of this Commonwealth arising out of a report of need
shall be immune from any civil or criminal liability on
account of the report of need or testimony related to good
faith compliance with this act. The immunity shall not extend
to liability for an act of abuse of an older adult, even if
the act is the subject of the report of need or testimony.
(2) A facility that employs an individual required or
permitted to make a report under this act shall not be held
civilly liable for any action directly related to good faith
compliance with this act.
(3) In the absence of willful misconduct or gross
negligence, the area agency on aging, the director or
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employees of the area agency on aging, protective services
workers or employees of the department shall not be civilly
or criminally liable for any decision or action or resulting
consequence of a decision or action when acting under and
according to the provisions of this act.
Section 10. The department shall promulgate regulations to
carry out the provisions of this act and shall annually present
to the General Assembly a report on the program and services
performed. Commonwealth agencies with oversight authority over
entities impacted by this act shall promulgate regulations
necessary to assist the department in implementing this act.
Section 11. Nothing in this act shall be construed to expand
the jurisdiction of or grant additional arrest powers to law
enforcement officials that are not otherwise authorized by law.
Section 12. All acts and parts of acts are repealed insofar
as they are inconsistent with this act.
Section 13. This act shall take effect as follows:
(1) The following shall take effect immediately:
The addition of sections 602-A, 603-A and 610-A of
the act.
This section.
(2) The remainder of this act shall take effect in 18
months.
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