PROPOSED RULEMAKING
Title 6--AGING
PART I. DEPARTMENT OF AGING
[6 PA. CODE CH. 15]
Protective Services for Older Adults
[29 Pa.B. 6010] The Department of Aging (Department), to safeguard more effectively the rights and protection of incapacitated older adults, proposes to amend Chapter 15 (relating to protective services for older adults), to read as set forth in Annex A. The Department proposes these amendments under the authority of the Older Adults Protective Services Act (OAPSA) (35 P. S. §§ 10225.101--10225.5102). Proposed amendments clarify definitions and operational elements to reflect the experience of the protective services agencies (Area Agencies on Aging (AAA)) over the last decade, and add sections to implement the requirements of recent legislation requiring applicants and specified employes at care-providing facilities to obtain criminal history record checks and requiring administrators and employes at these facilities to report suspected abuse.
Background
The OAPSA which became law on November 6, 1987, established a program of protective services for older adults designed to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment. To implement the OAPSA, the Department established a Statewide network of 52 local older adult protective services programs administered by AAAs. Since 1988, AAAs have administered local protective services plans, which include provisions for receiving, on a 24-hour a day, 365 days per year basis, reports of older adults in need of protective services, investigating these reports, and, as necessary, providing an array of protective services tailored to the needs of the older adult.
For SFY 1996-97, AAAs received 7,578 reports of need for protective services; of these, 2,075, or 27.4%, were substantiated. Services most often provided to protective services clients during SFY 1996-97 included, in rank order: care management, home-delivered meals, personal care, legal assistance, transportation, overnight shelter, home support, home health and day care.
Amendments are proposed to Chapter 15 to accomplish the following:
1. Updating regulatory language to reflect state-of-the-art program terminology and to replace outdated statutory and regulatory citations.
2. Clarification of definitions in § 15.2 (relating to definitions), and of text throughout the regulations, to reflect a decade of experience by AAAs in implementing both the OAPSA and protective services regulations.
3. Addition of definitions and of new sections dealing with criminal history record information reports and mandatory reporting of suspected abuse, to implement changes to the OAPSA made by the act of December 18, 1996 (P. L. 1125, No. 169) (Act 169) (35 P. S. §§ 10225.501--10225.508) and the act of June 9, 1997 (P. L. 160, No. 13) (Act 13) (35 §§ 10225.701--10225.708).
Purpose of the Proposed Rulemaking
AAAs have been providing protective services under the OAPSA for a decade; many AAAs provided them for many years before passage of the OAPSA and implementing regulations. Through this experience, it became apparent that, in several instances, the protective services regulations repeated language in the OAPSA without providing additional clarity or guidance. In addition, several regulatory provisions either unnecessarily restricted AAAs in carrying out their responsibilities under the OAPSA or, because they were written in 1988, inadequately described the ways in which AAAs could most efficiently and effectively provide a program of protective services. The proposed amendments to existing regulations in Chapter 15, as set forth in Annex A, responsibly address the previously mentioned needs for improvement. They reflect the input of a work group of AAA Administrators representing the Pennsylvania Association of Area Agencies on Aging and the recommendations of protective services supervisors and caseworkers from across this Commonwealth who participated in discussion sessions and responded to Departmental surveys.
Sections 504 and 708 of the OAPSA (35 P. S. §§ 10225.504 and 10225.708) require the Department to promulgate regulations necessary to carry out Chapters 5 and 7 of the OAPSA dealing, respectively, with criminal history record checks for applicants for employment and for certain employes of specified care-providing facilities, and with mandatory reporting of suspected abuse by administrators and employes of these same facilities. The proposed amendments are responsive to these statutory requirements and reflect preliminary input from attendees at a meeting of stakeholders representing the Departments of Education, Health and Public Welfare, the Pennsylvania Associations of Home Health Agencies, Non-Profit Homes for the Aging, County-Affiliated Homes, AAA Administrators and the Pennsylvania Health Care Association.
The following is a brief description of significant proposed changes, listed by section, which modify requirements under the original regulations published in 1988 and which add requirements to implement Acts 169 and 13:
A. General Provisions
Section 15.2. The proposed rulemaking adds or amends definitions of ''abuse,'' ''case file,'' ''client assessment,'' ''neglect,'' ''open disposition,'' ''operator,'' ''protective services'' and ''State-licensed facility'' to clarify or to update terminology. Definitions of ''administrator,'' ''applicant,'' ''care,'' ''care-dependent individual,'' ''employe,'' ''facility,'' ''home health agency,'' ''intimidation,'' ''law enforcement official,'' ''recipient,'' ''serious physical injury,'' ''serious bodily injury,'' ''sexual abuse'' and ''State Police'' are proposed to be added to conform to the OAPSA.
B. Program Administration
Section 15.13. The proposed rulemaking deletes the prohibition on generic caseworkers and on using Ombudsman and OPTIONS caseworkers, and deletes the requirement for annual submission of caseload adjustment method.
C. Reporting Suspected Abuse, Neglect, Abandonment or Exploitation
Section 15.22. The proposed rulemaking extends legal protection to persons who assist the Department; corrects language regarding damages; and adds a subsection on intimidation to conform to OAPSA.
D. Investigating Reports of Need for Protective Services
1. Section 15.41. The proposed rulemaking adds language to emphasize the importance of collateral information in investigating reports.
2. Section 15.42. The proposed rulemaking adds language to emphasize the Department's right to intervene in an agency's investigation; and removes requirement that investigations are completed only after provision of services.
3. Section 15.45. The proposed rulemaking adds a requirement to use a licensing agency's after-hours phone number, if there is one.
E. Provision of Services
1. Section 15.91. The proposed rulemaking adds language to make it clear that protective services are provided only subsequent to an investigation.
2. Section 15.95. The proposed rulemaking removes the requirement that all protective services cases be reassessed every 30 days; requires that a reassessment be done before a case is terminated, transferred or whenever the agency judges it to be appropriate.
F. Staff Training
1. Section 15.123. The proposed rulemaking adds the requirement that the protective services investigation training curriculum include topic dealing with coordination with other State agencies.
2. Section 15.127. The proposed rulemaking makes three specified topics for annual in-service training optional, rather than mandatory.
G. Criminal History Record Information Reports
Eight sections are added to carry out the provisions of Chapter 5 of the OAPSA. In addition to restating, as necessary, the quasi-regulatory language in Chapter 5 of the OAPSA, these sections accomplish the following:
1. Section 15.131. Language operationalizes the Department's responsibility to serve as intermediary between applicants and specified employes and the FBI to obtain Federal criminal history record information for nonresidents; allows facilities to require proof of residency and includes list of acceptable documents.
2. Section 15.132. Subsection (a)(5) and (6) provide clarification regarding employe provision of criminal history record information at facilities which supply, arrange for, or refer employes to provide care in other facilities. Subsection (b) absolves facilities of liability for employe failure to comply with section 5 of the OAPSA.
3. Section 15.133. Subsection (c) requires facilities to take specified actions whenever required information is not contained in criminal history background checks. Subsections (e)--(i), respectively, require facilities to explain to applicants their responsibility to obtain criminal history reports; require facilities to assure confidentiality; exempt certain facilities from maintaining State and Federal criminal history records; and require exempted facilities to assure that employes have complied with criminal history record information requirements and that their records are available when necessary.
4. Section 15.134. Details procedures for obtaining State and Federal criminal history record information; allows facilities to assume responsibility for fees; requires facilities to assist applicants and employes completing necessary forms, if requested; and places responsibility on applicants and employes to obtain required information which is not contained in criminal history background checks, to review criminal history record reports for accuracy and to request a review of the Department's determination.
5. Section 15.135. Sets forth applicants' rights to review, challenge and appeal the accuracy of criminal history record information reports and, upon successful challenge, to be considered for any available positions for which they qualify.
6. Section 15.136. Sets forth the rights of facility personnel to review, challenge and appeal the accuracy of criminal history record information reports and, upon successful challenge, to be reinstated to their former, or to an equivalent, position.
7. Section 15.137. Subsection (a)(5) requires that provisionally-employed applicants receive an orientation, describes the orientation and requires that applicants receive regular supervisory observation. Subsection (d) extends the period of provisional employment when information regarding criminal history record reports has not been received within specified timeframes because the State Police or FBI have not provided the information.
8. Section 15.138. Subsection (a)(4) requires representatives of Commonwealth agencies having knowledge of violations of the OAPSA to report them to the appropriate licensing agency.
H. Reporting Suspected Abuse
Nine sections are added to carry out the provisions of Chapter 7 of the OAPSA. In addition to restating, as necessary, the quasi-regulatory language in Chapter 7 of the OAPSA, these sections accomplish the following:
1. Section 15.141. Subsection (c) adds a requirement that AAAs notify State licensing agencies when written reports of abuse are received.
2. Section 15.142. Subsection (a)(2) details the procedure employes or administrators must follow in reporting to the Department.
3. Section 15.143. Subsection (a) allows facilities to duplicate report forms for submission to AAAs and law enforcement officials.
4. Section 15.144. Adopts the language of section 702 of the OAPSA; adds a requirement that AAAs provide the Department with a copy of all reports involving a victim/recipient under age 60.
5. Section 15.145. Subsection (a)(1)--(7) establish responsibility for conducting investigations in response to reports of abuse of persons over 60 and of persons under 60. They also direct that reports and notification be made to agencies consistent with victim/recipient place of residence or with the presence or absence of mental health or mental retardation issues.
6. Section 15.146. Subsections (a)--(e) require facilities, within 90 days of publication of these regulations, to develop and submit a facility supervision/suspension plan; establish minimum plan requirements; require that plans be approved and followed; require facilities, when notified that an employe has committed abuse, to develop, submit and implement an individual plan of supervision; require that individual plans be approved and followed.
7. Section 15.147. Adopts the language of section 705 of the OAPSA.
8. Section 15.148. Subsection (a)(4) requires representatives of Commonwealth agencies who have knowledge of violations to report them to the appropriate licensing agency. Subsection (c) requires AAAs which learn of a person's refusal to complete all mandated reporting requirements to notify the police.
9. Section 15.149. Adopts the language of section 707 of the OAPSA.
Persons and Entities Affected
These proposed amendments will affect applicants and, with specified exceptions, employes of designated facilities who must obtain State or Federal, or both, criminal history record checks as a condition of initial or continued employment; applicants, employes and facilities who bear the cost of these record checks; facilities which are prohibited from hiring applicants, or from retaining employes, whose record reveals conviction of one or more specified offenses; the State Police, the FBI and the Department, which bear the cost of additional personnel to process criminal history record reports and related paperwork; and facility administrators and owners who are subject to civil or criminal penalties, or both, for committing specified prohibited acts or for failing to act.
These proposed amendments will also affect staff of the Departments of Aging, Health and Public Welfare, coroners' offices, law enforcement agencies, and AAAs, who will be receiving and investigating mandatory reports of abuse made by employes and administrators of facilities under their jurisdiction or in their geographic areas; residents of specified care-providing facilities who are victims of abuse; and administrators and staff of specified care-providing facilities, who are required to report suspected abuse and are subject to civil or criminal penalties, or both, for committing specified prohibited acts or for failing to act.
Cost and Paperwork Requirements
Costs imposed by this proposed rulemaking result from increased personnel costs to process criminal history background checks. In SFY 1998-99, the Department will incur costs of $100,000 to process FBI checks. In SFY 1998-99, the State Police will incur costs estimated at $161,625 to process the State Police Criminal Background checks.
Costs are also incurred by applicants for employment and specified employes at care-providing facilities to pay the fee for obtaining the State Police and FBI Criminal History Background checks. Alternatively, care-providing facilities may elect to bear these costs for employes and applicants. In SFY 1998-99, it is estimated that 3,746 persons will require FBI record checks, at a cost of $24 for each record check. An estimated 15,077 persons will require Pennsylvania record checks, at a cost of $10 for each record check, during this same period. The State Police receive the $10 fee; the Department receives no part of the $24 fee, which is passed through to the FBI.
There will be some increase in the costs of paperwork for care-providing facilities to make written reports of suspected abuse to AAAs and, in some cases, to law enforcement officials. AAAs will be required in some cases to send reports of suspected abuse to the Department and coroners. Facilities will be required to send facility and individual supervision plans to AAAs and licensing agencies, and to make reports of suspected abuse available to specified persons and agencies.
Effectiveness/Sunset Date
The proposed amendments will take effect on the date of publication in the Pennsylvania Bulletin as final-form rulemaking.
The effectiveness of these regulations will be evaluated as part of the Department's annual review of the protective services program.
Public Comment Period
Interested persons are invited to submit any comments, suggestions or objections regarding these proposed amendments to Robert F. Hussar, Chief, Division of Program and Regulatory Coordination, Department of Aging, 555 Walnut Street, Fifth Floor, Harrisburg, PA, 17101-1919, (717) 783-6207, within 30 days of the date of publication of this Notice in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 15, 1999, the Department submitted a copy of this proposed proposed rulemaking to IRRC, and the Chairpersons of the House Aging and Youth and the Senate Aging and Youth Committees. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the agency in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the close of the Committee's comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulation, by the Department, the General Assembly and the Governor of objections raised.
RICHARD BROWDIE,
SecretaryFiscal Note: 1-17. (1) General Fund and Lottery Fund;
State Police-- Department of Aging-- General Government General Government Operations (General Fund) Operations (Lottery Fund) (2) Implementing Year 1998-99 is $238,840 $100,000; (3) 1st Succeeding Year 1999-00 is $241,200 $ 85,000; 2nd Succeeding Year 2000-01 is $246,560 $ 89,000; 3rd Succeeding Year 2001-02 is $251,920 $ 93,000; 4th Succeeding Year 2002-03 is $257,280 $ 97,000; 5th Succeeding Year 2003-04 is $262,640 $101,000; (4) 1997-98 $119.612
Million$4.318 Million 1996-97 $115.418 Million $4.298 Million 1995-96 $109.830 Million $6.755 Million (7) State Police--General Government Operations (General Fund) and Department of Aging--General Government Operations (Lottery Fund); (8) recommends adoption.
Annex A
TITLE 6. AGING
PART I. DEPARTMENT OF AGING
CHAPTER 15. PROTECTIVE SERVICES FOR OLDER ADULTS
GENERAL PROVISIONS § 15.1. Scope and authority.
* * * * * (b) This chapter applies to the Department, the Department of Health, the Department of Public Welfare, area agencies on aging, providers of protective services for older adults, parties to the making and investigation of reports of a need for protective services by older adults [and], subjects of reports and investigations, and the facilities defined in this chapter.
* * * * * § 15.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Abuse--
[(i)] The occurrence of one or more of the following acts:
[(A)] (i) ***
[(B)] (ii) ***
[(C)] (iii) Sexual harassment, rape or abuse, as defined in [the] 23 Pa.C.S. §§ 6101--6117 (relating to the Protection From Abuse Act [(35 P. S. §§ 10181--10190).
(ii) No older adult will 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.]
Act--The Older Adults Protective Services Act (35 P. S. §§ [10211--10224] 10225.101--10225.5102).
Administrator--The person responsible for the administration of a facility. The term includes a person responsible for employment decisions or an independent contractor.
* * * * * Applicant--An individual who submits an application, which is being considered for employment, to a facility.
* * * * * 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 the act to impose reponsibility on an individual if the responsibility would not otherwise exist in law.]
Case file [or], case record or record--A complete record of the information received and the actions taken by the agency on each report of need received. [of an older adult in need of protective services. The case file shall, when] When applicable, it shall include, but not be limited to, the following elements:
* * * * * (iii) [Client assessment] Assessment.
* * * * * (v) Notifications of [clients] older adults, alleged perpetrators, police [and the like], agencies, organizations, and individuals.
* * * * * Client assessment--A determination based upon a comprehensive review of a client's social, physical and psychological status along with a description of the person's current resources and needs using the instruments and procedures established by the Department for this purpose.
* * * * * Court--A court of common pleas or a district [justice] magistrate, if applicable.
* * * * * Employe--An individual who is employed by a facility. The term includes contract employes who have direct contact with residents or unsupervised access to their personal living quarters. The term also includes any person who is employed by, or who enters into a contractual relationship with, or who establishes any other agreement or arrange-ment with a home health care agency to provide care to a care-dependent individual in the individual's place of residence for a fee, stipend or monetary consideration of any kind.
* * * * * Facility--Any of the following:
(i) A domiciliary care home as defined in section 2202-A of The Administrative Code of 1929 (71 P. S. § 581-2).
(ii) A home health care agency.
(iii) A long-term care nursing facility as defined in section 802.1 of the Health Care Facilities Act (35 P. S. § 448.802a).
(iv) An older adult daily living center as defined in section 2 of the Older Adult Daily Living Centers Licensing Act (62 P. S. § 1511.2).
(v) A personal care home as defined in section 1001 of the Public Welfare Code (62 P. S. § 1001) including those entities licensed as personal care homes who publicly advertise, promote or otherwise hold themselves out to the public as assisted living facilities.
Home health care agency--
(i) Any of the following:
(A) A home health care organization or agency licensed by the Department of Health.
(B) 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.
(ii) The term includes private duty home care providers, homemaker/home health aide providers, companion care providers, registry services, intravenous therapy providers, or any other entity which supplies, arranges for, or refers personnel to provide care for which that entity receives a fee, consideration or compensation of any kind.
Intimidation--An act or omission by a person or entity toward another person which is intended to, or with knowledge that the act or omission will, obstruct, impede, impair, prevent or interfere with the administration of the act or a law intended to protect older adults from mistreatment.
Investigation--A systematic inquiry conducted by the agency to determine if allegations made in a report of need for protective services can be substantiated or if the older adult referred to in the report of need is an older adult in need of protective services.
Incapacitated older adult--An older adult who, because of one or more functional limitations, needs the assistance of another person to perform or obtain services necessary to maintain physical or mental health. This term carries no reference to the competency or incompetency of an older adult as defined in [the act of June 30, 1972 (P. L. 508, No. 164) (20 P. S. §§ 5501--5537] 20 Pa.C.S. §§ 5501--5555, known as the [Incompetents] Incapacitated Persons Act.
* * * * * Law enforcement official--One of the following:
(i) A police officer of a municipality.
(ii) A district attorney.
(iii) 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. [An older adult who does not consent to the provision of protective services will not 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.]
* * * * * Open disposition--A situation in which a criminal history background check contains arrest information but does not contain information regarding one or more of the following: a final decision or sentencing announced by the court, the offense code, grading of the offense, or other information required in making a determination regarding an applicant or employe.
Operator--A person, society, corporation, governing authority or partnership legally responsible for the administration and operation of a facility.
* * * * * Protective services--Activities, resources and supports provided to older adults under the act, subsequent to an investigation, to [detect,] prevent, reduce or eliminate abuse, neglect, exploitation [and] or abandonment.
* * * * * Recipient--An individual who receives care, services or treatment in or from a facility.
* * * * * Serious bodily injury--Injury resulting from abuse or neglect 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 resulting from abuse or neglect that does one of the following:
(i) Causes a person severe pain.
(ii) Significantly impairs a person's physical functioning, either temporarily or permanently.
* * * * * 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.
State-licensed facility--[An] For all purposes involved in the determination of whether an individual is an older adult in need of protective services, a State licensed facility is defined as an institution licensed by the Commonwealth to provide temporary or permanent residence to persons in need of personal care or medical care, including, but not limited to, nursing homes, personal care homes, hospitals, State hospitals and mental retardation centers.
State Police--The Pennsylvania State Police.
PROGRAM ADMINISTRATION § 15.11. Administrative functions and responsibilities of the Department.
(a) General responsibilities. The Department will establish and maintain a Statewide system of protective services for older adults who need them. These services will be available and accessible through local protective services agencies. In maintaining this system of protective services, the Department's functions and responsibilities include, but are not limited to, the following:
* * * * * (4) The development and maintenance of a fiscal and service data collection system to collect information on local reports of a need for protective services, investigations [of reports], services provided and other relevant data on protective services activities.
* * * * * § 15.12. Administrative functions and responsibilities of area agencies on aging.
* * * * * (b) Protective services plan. [By February 24, 1989 an area agency on aging shall submit, as a supplement to its annual area plan, a protective services plan which includes a certification by the area agency that it is prepared to fulfill its responsibilities under the act.] The area agency on aging shall submit [thereafter], on an annual basis, its protective services plan to the Department. The protective services plan shall contain, at a minimum, the following information:
(1) An explanation of the organizational structure and staffing of the area agency's protective services functions, including provisions for purchasing these services if applicable. For the purpose of advising the agency on medically related issues encountered during [client] assessment and the development of service plans, the organizational structure shall include the consultation services of a registered nurse or physician licensed to practice in this Commonwealth.
[(2) An explanation of how the area agency's organizational structure and staffing of protective services will prevent a conflict of interest between the investigation of reports received under this chapter and the area agency's service delivery functions. The explanation shall include assurances that the minimum criteria required under § 15.13 (relating to organization and structure of protective services functions) will be met.]
[(3)] (2) ***
[(4)] (3) ***
[(5)] (4) ***
[(6)] (5) ***
[(7)] (6) ***
* * * * * § 15.13. Organization and structure of protective services functions.
* * * * * [(b) General structure. The agency shall provide for some separation of protective services functions from the general functions of other agency service management and casework. The agency may provide this separation by establishing a separately identifiable protective services unit. If the agency chooses not to establish a separate, identifiable protective services unit, the agency shall identify a subset of the staff in the organizational unit which has responsibility for protective services and the agency shall assign protective services cases as provided in subsection (c).]
[(c)] (b) ***
* * * * * [(4) The agency may not designate as a protective services caseworker an area agency on aging ombudsman or a caseworker under the Department's Long Term Care Assessment and Management Program (LAMP).
(5)] (4) The protective services caseload assigned to a protective services caseworker may not be planned to exceed 30 ongoing protective services cases. [If the agency wishes to assign protective services cases to a protective services caseworker who also has other responsibilities, the agency shall set forth in its plan how it will assure that the caseworker's overall caseload is adjusted for the increased intensity of workload imposed by performing protective services functions.
(6)] (5) ***
[(d)](c) Other staff. The immediate supervisor of a protective services caseworker [is permitted to discharge nonprotective service duties. The supervisor] is required to be trained as set forth in §§ 15.121--15.127. [The supervisor may not be responsible for direct supervision of more than eight full-time protective services caseworkers.] An intake worker of the agency is permitted to discharge nonprotective service duties. An intake worker who receives a report of the need for protective services shall receive training as set forth in §§ 15.121--15.127.
[(e)] (d) Conflict of interest. The area agency on aging shall describe in its protective services plan the steps it will take to avoid or minimize the potential of a conflict of interest between the investigative and service delivery functions in the protective services caseload. The description shall identify points in the organization and structure of protective services delivery where a potential conflict of interest may exist and explain the specific organizational responses which the area agency on aging will make to avoid or minimize that potential. The responses may include provisions for assuring some separation between the investigative and service delivery functions. The description shall also include proposed steps for addressing an actual conflict of interest if one arises. Nothing in this chapter constitutes an absolute bar to an area agency from delivering protective services and other area agency on aging services [themselves] itself or through the same provider solely because of the potential existence of a conflict of interest.
[(f)] (e) ***
REPORTING SUSPECTED ABUSE, NEGLECT, ABANDONMENT OR EXPLOITATION § 15.21. General reporting provisions.
(a) A person who has reasonable cause to believe that an older adult needs protective services may report this to the local provider of protective services. An area agency on aging shall publicize, on an ongoing basis, the name, address and phone number of the agency where reports are to be made. When applicable, reports shall comply with §§ 15.141--15.147 (relating to reporting suspected abuse).
(b) No older adult will be found to be abused or 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. If these factors do result in a finding that the older adult is in need of protective services, the older adult or guardian must provide consent before services can be provided to reduce or remove the need for protective services, except in those cases involving emergency involuntary intervention.
§ 15.22. Safeguards for those who make or receive reports.
(a) Protection from retaliation. Under the act, a person or entity who takes discriminatory, retaliatory or disciplinary action against an employe or other person who makes a report, against a person who cooperates with the agency or the Department to provide testimony or other information about a report, or against a victim of abuse, commits a violation of the act. The person who takes the discriminatory, retaliatory or disciplinary action is subject to a civil lawsuit by the person who made the report, the victim of abuse named in the report, or the person who cooperated with the agency or the Department. If the court which hears the lawsuit decides in favor of the plaintiff, the plaintiff shall recover triple compensatory damages, compensatory and punitive damages or $5,000, whichever is greater, from the person or entity which committed the violation.
(b) Immunity from liability. As provided under the act, a person who participates in the making of a report or completion of an investigation or who provides testimony in an administrative or judicial proceeding arising out of a report shall be immune from civil or criminal liability because of these actions unless the person acted in bad faith or with malicious purpose. The act does not extend this immunity to liability for acts of abuse, neglect, exploitation or abandonment, even if the acts are the subject of the report or testimony.
(c) Intimidation; penalty. A person, including the victim, with knowledge sufficient to justify making a report or cooperating with the agency, including possibly providing testimony in an administrative or judicial proceeding, shall be free from intimidation by an employer or by another person or entity. A 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.
§ 15.23. Receiving reports; general agency responsibility.
* * * * * (d) Reports from outside the planning and service area. The agency shall receive all reports made regardless of their place of origin or the location in this Commonwealth of the older adult in need of protective services. If the older adult who is the subject of a report does not reside in the planning and service area of the agency or, at that time, is not in the planning and service area, the agency shall notify the agency which provides protective servicesin the planning and service area where the older adult [can be] is located and relay to that agency the information received in the report.
§ 15.24. Receiving reports; agency intake process.
(a) Personnel who may receive reports. A report shall be received only by persons who have received training on the minimum requirements and procedures for receiving, recording, screening and referring reports under § 15.124 (relating to protective services intake training curriculum). When the agency uses an answering service to receive calls from persons reporting a need for protective services, the agency shall have one of the following options:
* * * * * (2) To provide that all calls are forwarded directly to designated protective services intake workers or caseworkers of the agency for completion of a Report of Need form.
* * * * * § 15.25. Report form and content.
(a) Standardized [reports] forms. ***
* * * * * § 15.26. Screening and referral of reports received.
* * * * * (b) Referral categories and actions.
* * * * * (5) No need for protective services.
(i) A report shall be placed in this category when the person reported to be in need of protective services [does not meet] meets one or more of the following criteria:
(A) Is [at least] under 60 years [old] of age.
(B) [Cannot] Has the capacity to perform or obtain, without help, services necessary to maintain physical or mental health, as set forth in § 15.2 (relating to definitions) of an older adult in need of protective services.
(C) Has [no] a responsible caretaker at the time of the report.
(D) Is not at imminent risk of danger to his person or property. (ii) A report in this category shall be referred to a protective services caseworker of the agency within the normal business hours of the agency's current or next day of business. The protective services caseworker shall review the details of the report and take whatever steps necessary to confirm or reject the categorization of no need for protective services. If the caseworker confirms the screening categorization, appropriate referrals shall be made to the area agency on aging [service] care management system or, if concerning an adult under 60 years of age, to another community agency. If the caseworker rejects the categorization, the report shall be placed in the appropriate category and be handled accordingly.
(iii) A report may not be placed in this category due to the temporary relocation of the victim to a safe environment, such as a hospital or emergency shelter, from which the victim will be released to return to the original abusive situation or to a new location which has not yet been determined to be safe.
§ 15.27. Handling of completed reports.
* * * * * (b) Appropriate routing of reports. A completed report form shall be promptly routed to appropriate staff of the agency under § 15.26(b) (relating to screening and referral of reports received) and, if involving a State-licensed facility, provided to the appropriate State licensing agency, and shall be handled in a manner which safeguards the confidentiality of information contained in the report. Sections 15.103 and 15.104 (relating to responsibilities of staff with access to confidential information; and penalties for violation of confidentiality provisions) also apply to staff of an emergency response agency under contract with the agency to receive reports during times when the agency is not open for business.
INVESTIGATING REPORTS OF NEED FOR PROTECTIVE SERVICES § 15.41. Reports required to be investigated.
(a) General. The agency shall provide for an investigation of a report received under §§ 15.23 (relating to receiving reports; general agency responsibility) and referred under § 15.26 (relating to screening and referral of reports received) to determine if the report can be substantiated and, if so, immediate steps that are necessary to remove or reduce an imminent risk to person or property. The investigation shall be initiated within 72 hours following the receipt of a report or sooner as provided under § 15.42 (relating to standards for initiating and conducting investigations) and include sufficient collateral information provided by interviews, documents, reports or other methods to determine if the older adult is in need of protective services. Where applicable, reports and investigations shall comply with §§ 15.141--15.147.
* * * * * § 15.42. Standards for initiating and conducting investigations.
* * * * * (d) Completing investigations of reports. The agency shall make all reasonable efforts to complete an investigation of a report of need for protective services under this section as soon as possible and, in cases of abuse and neglect, at least within 20 days of the receipt of the report. [The investigation of the report is completed only when the report has been determined to be substantiated or unsubstantiated and, if substantiated, after necessary steps have been taken to reduce an imminent risk to the older adult's person or property.]
(e) Interference. If the Department determines that there may be interference with the course of a protective services investigation, the Department reserves the right to intervene in the agency's investigation.
§ 15.43. Resolution of unsubstantiated reports.
(a) When, upon investigation of a report, it is determined that there is no need for protective services, the report shall be classified as [an] unsubstantiated [report].
(b) A case opened by an unsubstantiated report shall be closed and information identifying the person who made the report and the alleged perpetrator of abuse, if applicable, shall be immediately deleted from the [records] case record [in the case file].
(c) For the purposes of substantiating a pattern of abuse, neglect, exploitation or abandonment, the name of the person reported to need protective services and other information relevant to the circumstances which led to the report may be maintained for [a period of] 6 months in a separate locked file accessible only to limited authorized staff for review when it is necessary to establish that a previous report was made. At the end of 6 months, case [files] records maintained under this subsection shall be destroyed unless additional reports lead to their being reopened.
* * * * * § 15.44. Resolution of substantiated reports.
(a) When an investigation confirms the details of a report made under § 15.23 (relating to receiving reports; general agency responsibility) or determines that the subject of the report is an older adult in need of protective services, the report shall be classified as [a] substantiated [report].
(b) The agency shall provide for a timely [client] assessment of the need for protective services by the older adult who is the subject of a substantiated report if the older adult gives informed consent to an assessment. If an older adult found to need protective services does not consent to [a client] an assessment, the agency may seek, when appropriate, a court order under § 15.61 (relating to access to persons).
(c) On the basis of the [completed client] assessment, the agency shall provide for the development of a service plan of recommended actions which reflect the least restrictive alternatives for removing or reducing imminent risk to person or property and promote client self-determination and continuity of care being provided at the time of the agency's intervention. The service plan may include, when appropriate, the pursuit of civil or criminal remedies.
* * * * * § 15.45. Situations involving State-licensed facilities.
* * * * * (b) Agency coordination with the licensing agency.
(1) Except as provided under subsection (c), the agency shall notify the appropriate licensing agency under procedures developed by the Department, in consultation with the licensing agency. Notification shall be made immediately using the licensing agency's after-hours reporting phone number, if one exists; if not, within 24 hours of the initiation of the investigation or before the close of business during the next day of the licensing agency's normal hours of business, that an investigation has been initiated in a facility licensed by the State licensing agency. The notification shall identify the facility, the older adult and the nature of the report.
* * * * * § 15.46. Law enforcement agencies as available resources.
* * * * * (f) Simultaneous investigation. [If an investigation of a report results in a police investigation] When both a report of need for protective services and a police report have been filed, the protective services investigation shall continue simultaneously with the police investigation. The agency may take steps to coordinate its investigation with the police investigation and the investigation of the State Licensing Agency and shall make available as provided under § 5.105 (relating to limited access to records and disclosure of information) relevant information from the case record.
* * * * *
AGENCY ACCESS TO PERSONS AND RECORDS § 15.61. Access to persons.
(a) Access assured by law. The agency shall have access to older persons who have been reported to need protective services to:
* * * * * (2) Assess [client] the older person's need and develop a service plan for addressing determined needs.
* * * * * (c) When access is denied. If the agency is denied access to an older adult reported to need protective services and access is necessary to complete the investigation or the [client] assessment and service plan, or the delivery of needed services to prevent further abuse, neglect, exploitation or abandonment of the older adult reported to need protective services, the protective services caseworker shall make reasonable efforts to clearly inform the party denying access of the legal authority for access in section [7] 304 of the act (35 P. S. § [10217] 10225.304) and the available recourse through a court order. If the party continues to deny the agency access to the older adult, the agency may petition the court for an order to require the appropriate access when one of the following conditions applies:
(1) The caretaker or a third party has interfered with the completion of the investigation, the [client] assessment and service plan or the delivery of services.
* * * * * § 15.62. Access to records.
* * * * * (c) When access to records is denied. If the agency is denied access to records necessary for the completion of a proper investigation of a report or [a client] an assessment and service plan, or the delivery of needed services to prevent further abuse, neglect, exploitation or abandonment of the older adult reported to need protective services, the protective services caseworker shall clearly inform the party denying access to the records of the legal authority for access as set forth in section [7] 304 of the act (35 P. S. § [10217] 10225.304) by the agency and the available recourse through a court order. If the party continues to deny access to relevant records, the agency may petition the court of common pleas for an order requiring the appropriate access when one of the following conditions applies:
* * * * *
EMERGENCY INTERVENTION § 15.71. Involuntary intervention by emergency court order.
(a) General. When there is 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 person to be protected shall be an older adult in need of protective services as defined in this chapter. The courts of common pleas of each judicial district shall ensure that a judge or district [justice] magistrate 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 delay until normal court hours would significantly increase the danger the older adult faces. Only the agency, through its official representative, may bring a petition for involuntary intervention by emergency court order.
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INDIVIDUAL RIGHTS OF PARTIES INVOLVED § 15.81. 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 need protective services:
(1) The agency shall discreetly notify the older person during the investigation that a report of need for protective services has been made and shall provide the person with a brief summary of the nature of the report. The protective services worker performing the investigation shall determine when and how this notification is accomplished.
(2) If the older adult requests additional information contained in the [report] record, the agency shall provide the information subject to the requirements in § 15.105 (relating to limited access to records and disclosure of information).
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