act-1996-0-169•Pennsylvania Act 1996-169 — OLDER ADULTS PROTECTIVE SERVICES ACT - OMNIBUS AMENDMENTS
Pennsylvania Act 1996-169 — OLDER ADULTS PROTECTIVE SERVICES ACT - OMNIBUS AMENDMENTS
act-1996-0-1691996 Pa. Act 169Law
Act text
OLDER ADULTS PROTECTIVE SERVICES ACT - OMNIBUS AMENDMENTS
Act of Dec. 18, 1996, P.L. 1125, No. 169 Cl. 35
Session of 1996
No. 1996-169
HB 304
AN ACT
Amending the act of November 6, 1987 (P.L.381, No.79), entitled
"An act relating to the protection of the abused, neglected,
exploited or abandoned elderly; establishing a uniform
Statewide reporting and investigative system for suspected
abuse, neglect, exploitation or abandonment of the elderly;
providing protective services; providing for funding; and
making repeals," further providing for definitions; providing
for criminal history for employees at certain facilities; and
making editorial changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The act of November 6, 1987 (P.L.381, No.79),
known as the Older Adults Protective Services Act, is amended by
adding a chapter heading to read:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 2. Sections 1, 2 and 3 of the act are amended to
read:
Section [1] 101. Short title.
This act shall be known and may be cited as the Older Adults
Protective Services Act.
Section [2] 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 [3] 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
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
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
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.
"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.
"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.
Section 3. The act is amended by adding a chapter heading to
read:
CHAPTER 3
ADMINISTRATION
Section 4. Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14
of the act are amended to read:
Section [4] 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 [act] 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
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
[act] 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 [5] 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.
(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
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 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
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 [6] 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 [5] 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.
(b) Investigation involving licensed facilities.--Any report
concerning older adults residing in a State-licensed facility
shall be investigated under procedures developed by the
department in consultation with the State agency licensing such
facility. If the report concerns a resident of a State-licensed
facility for whom the area agency on aging provides ombudsman
services, the ombudsman of the area agency on aging must be
notified.
(c) Unsubstantiated reports.--If, after investigation by the
agency, the report is unsubstantiated, the case shall be closed
and all information identifying the reporter and the alleged
abuser shall be immediately deleted from all records. For
purposes of substantiating a pattern of abuse, neglect,
exploitation or abandonment, the name of the alleged victim and
any information describing the alleged act of abuse, neglect,
exploitation or abandonment may be maintained for a period of
six months under procedures established by the department.
(d) Substantiated reports.--If the report is substantiated
by the agency, or if the client assessment is necessary in order
to determine whether or not the report is substantiated, the
agency shall provide for a timely client assessment if the older
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 [10] 307.
Section [7] 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 [10]
307, an individual shall receive protective services
voluntarily. In no event may protective services be provided
under this [act] chapter to any person who does not consent to
such services or who, having consented, withdraws such consent,
unless such services are ordered by a court, requested by a
guardian of the older adult or provided under section [10] 307.
Nothing in this [act] 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 [6] 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 [6] 303.
(2) Assess client need and develop a service plan for
addressing needs determined.
(3) Provide for the delivery of services by the agency
or other service provider arranged for under the service plan
developed by the agency.
(f) Denial of access to persons.--If the agency is denied
access to an older adult reported to be in need of protective
services and access is necessary to complete the investigation
or the client assessment and service plan, or the delivery of
needed services in order to prevent further abuse, neglect,
exploitation or abandonment of the older adult reported to be in
need of protective services, the agency may petition the court
for an order to require the appropriate access when either of
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 [10] 307.
(h) Denial of access to records.--If the agency is denied
access to records necessary for the completion of a proper
investigation of a report or a client assessment and service
plan, or the delivery of needed services in order to prevent
further abuse, neglect, exploitation or abandonment of the older
adult reported to be in need of protective services, the agency
may petition the court of common pleas for an order requiring
the appropriate access when either of the following conditions
apply:
(1) The older adult has provided written consent for any
confidential records to be disclosed and the keeper of the
records denies access.
(2) The agency can demonstrate that the older adult is
denying access to records because of incompetence, coercion,
extortion or justifiable fear of future abuse, neglect,
exploitation or abandonment.
Section [8] 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 [act] chapter.
Section [9] 306. Confidentiality of records.
(a) General rule.--Information contained in reports, records
of investigation, client assessment and service plans shall be
considered confidential and shall be maintained under
regulations promulgated by the department to safeguard
confidentiality. Except as provided below, this information
shall not be disclosed to anyone outside the agency other than
to a court of competent jurisdiction or pursuant to a court
order.
(b) Limited access to the agency's protective services
records.--
(1) In the event that an investigation by the agency
results in a report of criminal conduct, law enforcement
officials shall have access to all relevant records
maintained by the agency or the department.
(2) In arranging specific services to carry out service
plans, the agency may disclose to appropriate service
providers such information as may be necessary to initiate
the delivery of services.
(3) A subject of a report made under section [5] 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 [5] 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 [10] 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
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 [act] 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 [11] 308. Individual rights.
(a) Rights of protective services clients.--The agency shall
observe the following minimum requirements to safeguard the
rights of an older adult who is reported to be in need of
protective services:
(1) The agency shall discreetly notify the older person
during the investigation that a report has been made and
shall provide the person with a brief summary of the nature
of the report.
(2) As provided under section [9(b)(3)] 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 [act] 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 [9(b)(3)] 306(b)(3), the
alleged perpetrator may request, and the agency shall
provide, additional information contained in the report.
(3) An alleged perpetrator is entitled to file an appeal
with the department under 1 Pa. Code Part II (relating to
general rules of administrative practice and procedure) to
challenge the agency's finding resulting from the
investigation of a report made under section [6] 303.
Section [12] 309. Financial obligations; liabilities and
payments.
All individuals receiving services and all agencies providing
services under this [act] 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 [act] chapter shall not supplant any
public and private entitlements or resources for which
persons receiving protective services under this [act]
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 [act] 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 [4(c)] 301(c).
(ii) Receiving and maintaining records of reports of
abuse under section [5] 302.
(iii) Conducting investigations of reported abuse
under section [6] 303.
(iv) Carrying out client assessments and developing
service plans under section [6] 303.
(v) Petitioning the court under sections [7] 304 and
[10] 307.
(vi) Providing emergency involuntary intervention
under section [10] 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 [act] 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
[act] 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 [13] 310. Regulations; enforcement.
(a) Promulgation of regulations.--The department shall
promulgate the rules and regulations to carry out this [act]
chapter and shall be responsible for presenting to the General
Assembly annually a report on the program and services
performed.
(b) Enforcement.--This [act] chapter shall be enforced only
after promulgation of regulations by the department, which shall
occur no later than 12 months following passage of this [act]
chapter, except that section [4] 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 [14] 311. Funds for payment of administration of [act]
chapter.
Funds necessary to administer this [act] chapter shall be
provided by annual appropriation by the General Assembly.
Section 5. The act is amended by adding a chapter to read:
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
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 to the State Police, which
shall forward them 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
shall insure confidentiality of the information.
(b) Fees.--The State Police may charge the applicant a fee
of not more than $10 to conduct the criminal record check
required under subsection (a)(1). The State Police may charge a
fee of not more than the established charge by the Federal
Bureau of Investigation for the criminal history record check
required under subsection (a)(2). The State Police shall develop
a billing system to allow facilities and administrators to
assume responsibility for the fee under this subsection. The
State Police shall allow facilities or administrators to
establish an account for quarterly payment.
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 under one or more provisions of 18
Pa.C.S. (relating to crimes and offenses):
Section 2502(a) or (b) (relating to murder).
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 4302 (relating to incest).
Section 6312 (relating to sexual abuse of children).
(b) Other offenses.--In no case may 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 within ten years immediately
preceding the date of the report of one or more 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.:
Chapter 25 (relating to criminal homicide) except for
section 2502(a) and (b).
Section 2702 (relating to aggravated assault).
Section 2901 (relating to kidnapping).
Section 2902 (relating to unlawful restraint).
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 4304 (relating to endangering welfare of
children).
Section 4305 (relating to dealing in infant
children).
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).
(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
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
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(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.
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 two years 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 6. The act is amended by adding a chapter heading to
read:
CHAPTER 51
MISCELLANEOUS PROVISIONS
Section 7. Sections 15 and 16 of the act are amended to
read:
Section [15] 5101. Repeals.
All other acts and parts of acts are repealed insofar as they
are inconsistent with this act.
Section [16] 5102. Effective date.
This act shall take effect July 1, 1988.
Section 8. The provisions of this act are severable. If any
provision of this act or its application to any person or
circumstance is held invalid, the invalidity shall not affect
other provisions or applications of this act which can be given
effect without the invalid provision or application.
Section 9. This act shall take effect as follows:
(1) This section shall take effect immediately.
(2) The addition of Chapter 5 of the act shall take
effect July 1, 1998.
(3) The remainder of this act shall take effect in 90
days.
APPROVED--The 18th day of December, A. D. 1996.
THOMAS J. RIDGE
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