[29 Pa.B. 6010]
[Continued from previous Web Page] (4) Nothing in this chapter limits the rights of an older adult to file a petition under [The Protection Abuse Act (35 P. S. §§ 10181--10190)] 23 Pa.C.S. §§ 6101--6117 (relating to the Protection from Abuse Act).
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PROVISION OF SERVICES § 15.91. General.
(a) Protective [Services] services. Protective services are 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 abandonment. Protective services activities include, but are not limited to, the following:
* * * * * (7) Arranging for available services needed to fulfill 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. A partial listing of the services which may be made available to reduce, correct or eliminate abuse, neglect, exploitation or abandonment of an older adult is found in § 15.93(c) (relating to service plan).
* * * * * (d) Client consent exemptions. Protective services may be provided to older adults in need of protective services without client consent only in the following situations:
(1) When ordered by a court under section [7] 304 of the act (35 P. S. § [10217] 10225.304).
* * * * * § 15.92. [Client needs assessment] Assessment.
(a) When a report is substantiated by the agency, or if [a client] an assessment is necessary to determine whether or not the report is substantiated, the agency shall, with the consent of the older adult, provide for a timely [client] assessment. If the older adult does not consent, the agency may apply §[§] 15.61 or § 15.71 (relating to access to persons; or involuntary intervention by emergency court order).
* * * * * § 15.93. Service plan.
(a) Upon completion of the [client needs] assessment and with the consent of the older adult, a service plan shall be prepared. The service plan shall be cooperatively developed by the agency staff, the older person or his appointed guardian, and other family members, if appropriate. Protective services may not be provided under the act to a person who does not consent to the services or who, having consented, withdraws consent, unless the services are ordered by a court, requested by a court-appointed guardian of the older adult or provided under § 15.71 (relating to involuntary intervention by emergency court order).
* * * * * (d) The service plan shall also address, if applicable, special needs of other members of the household unit as they may affect the older adult's need for protective services. The identification in a [service] care plan of service needs of other members of the older adult's household does not obligate the agency to pay the costs of the services.
§ 15.95. Case management.
* * * * * (c) Reassessment. Reassessment shall be done for protective service clients.
[(1) Reassessment shall be carried out within time limits specified in the service plan. It shall be done at least every 30 days if continuous protective service intervention is being provided as part of the service plan.
(2)] (1) Reassessment shall be [comprehensive and involve the areas of client functioning listed under § 15.92 (relating to client needs assessment) and] written in the standardized format [selected for the original assessment] established by the Department.
[(3)] (2) Reassessment shall be done before a protective service client's case is terminated, [or if the level of client need has changed] transferred or it is the agency's judgment that a reassessment is appropriate.
[(4) The reassessment shall be documented and followed by an updating of the service plan if changes occur in the client's needs, in goals to be achieved or in the pattern of service delivery.
(5) When services are being provided through the temporary purchase of services, the need for continuation of the services shall be discussed and efforts to provide the services through other resources described, as required under § 15.113 (relating to time limitation on service purchases).]
§ 15.96. Termination of protective services.
* * * * * (b) Except when the older adult withdraws consent to the delivery of protective services, the agency may terminate protective services in one of the following ways:
(1) By closing the case when no further service intervention is required by the [client] older adult.
(2) By closing the case when a court order for services has terminated and the [client] older adult does not consent to further service intervention.
(3) By transferring the [client] older adult to the service management system of the area agency.
(4) By transferring the [client] older adult to another appropriate agency.
(c) When the agency terminates protective services, the agency shall inform the older adult and, if applicable, responsible [caretakers] caregivers of this action and its rationale. [and shall attempt to secure a signed statement of understanding concerning the action. The] When the agency transfers a protective services case, the case record shall reflect the transfer of a client to another agency, the specific agency of referral and the acceptance of the referral by the other agency.
CONFIDENTIALITY § 15.102. Maintenance of case [files] records.
(a) Protective services case [files] records shall be kept, when not in use by authorized persons, in a locked container and separate from other agency files. The report, the record of investigation, notes of contact with the client and others involved with the case, court documents and letters of notification may not be transferred to, or reprinted for, other agency files. The [client] assessment and service plan may be transferred to other agency case files with assurance by the agency that a client's complete protective services case record can be immediately produced.
(b) When an individual case [file] record is removed from its storage location for use by an authorized person, the person shall sign for the [file] record according to sign-out procedures developed by the agency.
(c) Except as provided under § 15.105 (relating to limited access to records and disclosure of information) only staff with direct responsibility for protective services functions may be authorized by the agency to have access to the protective services case [files] records. General access is restricted to protective services supervisors, protective services caseworkers and clerical staff assigned to type and maintain case records.
(d) As provided under § 15.43 (relating to resolution of unsubstantiated reports), when the agency cannot substantiate a report of a need for protective services the case opened by the 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 [records in] the case [file] record.
(e) For the purposes of substantiating a pattern of abuse, neglect, exploitation or abandonment, the name of the person reported to be in need of 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 authorized staff for review when 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.
(f) The agency shall develop written procedures for the deletion or expungement of information in case [files] records and for the destruction of case [files] records so that unauthorized persons are not able to gain access to information from case [files] records. The procedures shall be submitted to the Department in the protective services plan required under § 15.12(b) (relating to administrative functions and responsibilities of area agencies on aging).
§ 15.103. Responsibilities of staff with access to confidential information.
(a) The agency shall assure that staff with access to information contained, or to be contained, in a case [file] record are fully aware of the confidentiality provisions of this chapter and of the local agency.
(b) A staff person who is authorized to have access to information contained, or to be contained, in a case [file] record is required to take every possible step to safeguard the confidentiality of that information. This requirement extends to known information related to a case but not recorded in writing.
* * * * * § 15.105. Limited access to records and disclosure of information.
Information in a protective services case [file] record may not be disclosed, except as provided in this section.
(1) Information may be disclosed to a court of competent jurisdiction [or] under a court order. [Disclosure shall be made only to the court of common pleas.] The protective service agency shall disclose case [file] record information for the purpose of in camera review by the court.
* * * * * (6) When the Department is involved in the hearing of an appeal by a subject of a report made under § 15.23, the appropriate Department staff shall have access to information in the [report] case record relevant to the appeal.
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FINANCIAL OBLIGATIONS § 15.111. Coordination of available resources.
* * * * * (b) The agency shall attempt to establish the [client's] older adult's eligibility for appropriate public and private entitlements and resources and shall exhaust the eligibility for benefits prior to the utilization of funds authorized by the act for the provision of services.
* * * * * § 15.112. Uses of funding authorized by the act.
The agency may utilize funding authorized by the act to pay for activities, including, but not limited to, the following:
* * * * * (4) Conducting [client] assessments and developing service plans under §§ 15.92 and 15.93 (relating to [client needs] assessment; and service plan).
* * * * * § 15.113. Time limitation on service purchases.
* * * * * (c) If at the end of 30 days of continuous service purchase on behalf of an individual protective services client, the services are still necessary and still available only through purchase, complete justification of the need for services and documentation of the unavailability of the services shall be made a part of the client [reassessment required by] record as required by § 15.95(b) (relating to case management).
STAFF TRAINING AND EXPERIENCE STANDARDS § 15.121. Protective services staff qualifications.
* * * * * (b) Criminal record. The protective services agency shall require persons to be hired or to be assigned to carry out responsibilities for protective services investigations, [client] assessments and service planning and arrangement to submit the following information:
* * * * * § 15.122. Protective services casework training curriculum.
The protective services casework training curriculum shall consist of comprehensive training including, but not limited to, the following topics:
* * * * * (9) [Incompetence] Incapacity.
* * * * * § 15.123. Protective services investigation training curriculum.
The protective services investigation training curriculum shall consist of comprehensive training including, but not limited to, the following topics:
* * * * * (6) Interviewing [the] reporters.
* * * * * (8) Interviewing [the victim] victims.
* * * * * (14) Coordination with other State agencies.
§ 15.127. In-service training.
(a) In addition to the required training set forth in §§ 15.122 and 15.123 (relating to protective services casework training curriculum; and protective services investigation training curriculum), protective services supervisors and protective services caseworkers shall participate in in-service training in protective services as required by the Department each year beginning with the calendar year following completion of the required basic protective services training set forth in § 11.122 (relating to protective services casework training curriculum).
(b) Annual in-service training [shall] may include, but not be limited to, the following topics:
* * * * * (Editor's Note: Sections 15.131--15.138 and 15.141--15.149 are proposed to be added. They are printed in regular type to enhance readability.)
CRIMINAL HISTORY RECORD INFORMATION REPORTS § 15.131. Prospective facility personnel.
(a) General rule. A facility, as defined in § 15.2, shall require all applicants for employment to submit with their applications the following criminal history record information, obtained within the 1-year period immediately preceding the date of application, as appropriate:
(1) State Police report. Facilities shall require all applicants to submit a report of criminal history record information obtained from the State Police or a written statement from the State Police that their central repository contains no such information relating to the applicant.
(2) FBI report. Facilities shall require all applicants, who are not residents of this Commonwealth or have not resided in this Commonwealth for an uninterrupted period of 2 years preceding the date of application to the facility, to submit an FBI criminal history record information report pursuant to the FBI's appropriation under the Departments of State, Justice and Commerce, the Judiciary and Related Agencies Appropriation Act of 1978 (Pub. L. No. 92-544, 86 Stat. 1109).
(3) Fingerprints. Applicants required to submit an FBI criminal history record information report shall submit a full set of fingerprints to the Department which will be forwarded to the FBI, to comply with the requirement of this subsection.
(b) Proof of residency. Facilities may require an applicant to furnish proof of residency, including, but not limited to, the following documentation, one or more of which shall be considered reasonable proof of residency:
(1) Motor vehicle records, such as a valid driver's license.
(2) Housing records, such as mortgage records, rent receipts or certification of residency in a nursing home.
(3) Public utility records and receipts, such as electric bills.
(4) Local tax records.
(5) A completed and signed, Federal, State or local income tax return with the applicant's name and address preprinted on it.
(6) Records of contacts with public or private social agencies.
(7) Employment records, including records of unemployment compensation.
§ 15.132. Facility personnel requirements.
(a) The following facility personnel are required to submit criminal history record information, as described in § 15.131 (relating to prospective facility personnel):
(1) Persons serving as facility administrators and operators on July 1, 1998, who have direct contact with clients and were employed by the facility as administrators and operators for less than 1 year of continuous employment shall comply with resident and, as applicable, nonresident criminal history record information requirements by July 1, 1999.
(2) Administrators and operators who have direct contact with clients and who began serving as administrators and operators after July 1, 1998, shall comply with the criminal history record information requirements within 90 days from the date of employment.
(3) Employes of a facility on July 1, 1998, who were employed by the facility for less than 1 year of continuous employment shall comply with the criminal history record information requirements by July 1, 1999.
(4) Exceptions are as follows:
(i) Employes of the facility on July 1, 1998, who were employed by the facility for a continuous period of at least 1 year prior to July 1, 1998, are exempt from the requirements of this section.
(ii) Employes who have complied with the requirements of this section who transfer to another facility established or supervised, or both, by the same operator are exempt from compliance with the requirements of § 15.131.
(5) Employes at facilities which supply, arrange for, or refer their employes to provide care, as defined in this chapter, in other facilities shall comply with criminal history record information requirements in paragraph (3) by providing criminal history record information to the facility which supplies, arranges for, or refers them. The grandfathering and transfer exemptions in paragraph (4) also, as applicable, apply to these employes. (Example: Employes of a home health care staffing agency assigned by the agency to provide care in a long-term care nursing facility must provide criminal history record information to the staffing agency).
(6) Employes referenced in paragraph (5) who have complied with applicable criminal history record information requirements in accordance with this chapter are not required to submit criminal history record information to the facilities to which they are supplied, referred or for which their services are arranged.
(b) Employes are responsible for determining whether they are required to obtain a criminal history record information report as required by this section. If an employe fails to comply with the requirements of this section and is subsequently terminated for failure to comply within the required time period, the facility cannot be held liable for failure to inform the employe of his obligations under this section.
§ 15.133. Facility responsibilities
(a) A facility may not hire an applicant nor retain an employe required to submit a criminal history record information report when the report reveals a felony conviction under The Controlled Substance, Drug, Device or Cosmetic Act (35 P. S. §§ 780-101--780-149).
(b) A facility may not hire an applicant nor retain any employe required to submit a criminal history record information report when the report reveals a conviction under one or more of the following provisions of 18 Pa.C.S. (relating to the Crimes Code):
(1) Chapter 25 (relating to criminal homicide).
(2) Section 2702 (relating to aggravated assault).
(3) Section 2901 (relating to kidnapping).
(4) Section 2902 (relating to unlawful restraint).
(5) Section 3121 (relating to rape).
(6) Section 3122.1 (relating to statutory sexual assault).
(7) Section 3123 (relating to involuntary deviate sexual intercourse).
(8) Section 3124.1 (relating to sexual assault).
(9) Section 3125 (relating to aggravated indecent assault).
(10) Section 3126 (relating to indecent assault).
(11) Section 3127 (relating to indecent exposure).
(12) Section 3301 (relating to arson and related offenses).
(13) Section 3502 (relating to burglary).
(14) Section 3701 (relating to robbery).
(15) A felony offense under Chapter 39 (relating to theft and related offenses), or two or more misdemeanors under Chapter 39.
(16) Section 4104 (relating to forgery).
(17) Section 4114 (relating to securing execution of documents by deception).
(18) Section 4302 (relating to incest).
(19) Section 4303 (relating to concealing death of child).
(20) Section 4304 (relating to endangering welfare of children).
(21) Section 4305 (relating to dealing in infant children).
(22) Section 4952 (relating to intimidation of witnesses or victims).
(23) Section 4953 (relating to retaliation against witness or victim).
(24) A felony offense under § 5902(b) (relating to prostitution and related offenses).
(25) Section 5903(c) or (d) (relating to obscene and other sexual materials and performances).
(26) Section 6301 (relating to corruption of minors).
(27) Section 6312 (relating to sexual abuse of children).
(c) If a facility receives a report from the State Police showing open disposition for a crime which would prohibit hiring an applicant or retaining an employe, the administrator or designee shall require the applicant or employe to obtain and submit court documents showing disposition within 60 days of receipt of the original report. Failure to provide court documents as required will result in an administrative prohibition against hiring or retention. If the reason for open disposition is court scheduling, the administrator or designee shall check status every 30 days until a court date is set and, thereafter, as appropriate in order to receive the disposition as soon as possible.
(d) A facility may not hire an applicant nor retain an employe required to submit a criminal history record information report when the criminal background check reports conviction of a Federal or out-of-state offense similar in nature, as determined by the Department, to those listed in subsections (a) and (b).
(e) A facility shall ensure that applicant responsibility to obtain criminal history record checks is explained to each applicant orally in a language understood by the applicant.
(f) A facility shall ensure that information obtained from the criminal history record remains confidential and is used solely to determine an applicant's eligibility for employment.
(g) Facilities, except those referenced in § 15.132 (a)(6)) (relating to facility personnel requirements), shall maintain employment records which include a copy of the completed request form for the State Police criminal history record check or of the completed State Police criminal history record check, SP-4-64, issued in response to a request for a criminal background check.
(h) Facilities, except those referenced in § 15.132 (a)(6)) shall maintain employment records which include, as applicable, a copy of the completed request form for the FBI criminal history record check or a copy of the FBI criminal history record check form showing no convictions for one or more Federal or out-of-State offenses similar in nature to the provisions in subsection (b), as determined by the Department.
(i) Facilities at which care is provided by employes supplied, referred or arranged by other facilities shall, at a minimum, obtain from those other facilities written assurance that:
(1) Employes who are supplied, referred or arranged have complied with criminal history record information requirements in this chapter.
(2) Employe criminal history record information will be made available when necessary.
§ 15.134. Procedure.
(a) Applicants and facility personnel required to obtain a criminal history record information report from the State Police may obtain forms from a State Policy facility.
(1) The State Police may charge a fee of not more than $10. A facility's check, cashier's check, certified check or money order shall accompany the request unless other payment arrangements are made with the State Police.
(2) Facilities may at their option require that applicants and facility personnel return the form to a designated individual for submission of the request by the facility.
(b) Applicants and facility personnel required to obtain a Federal criminal history record information report from the FBI shall obtain the information packet from the facility or contact the Department for instructions, all necessary forms and the required FBI fingerprint card.
(1) Applicants and facility personnel shall return the FBI fingerprint card and forms, and a check in an amount not to exceed the established fee set by the FBI. Upon receipt, the Department will submit the request to the State Police within 5 working days for transfer to the FBI. Checks shall be written to the FBI.
(2) Upon receipt of the completed criminal history record information report from the FBI, the Department will determine if the applicant is eligible for employment and will contact the applicant with a written statement within 10 working days.
(3) If the Department receives a report from the FBI showing open disposition for a crime which would prohibit hiring an applicant or retaining an employe, the Department will require the applicant or employe to obtain and submit to the Department court documents showing disposition, within 60 days of the date the Department notifies the applicant or employe. Failure to provide court documents as required will result in an administrative prohibition against hiring or retention.
(c) While submission of criminal history record information to facility administrators or their designees is the responsibility of the applicant, facility administrators may assume financial responsibility for the fees through a quarterly payment system.
(d) Applicants and facility personnel are responsible to fill out all necessary forms to comply with this section. Facilities shall assist an applicant or employe in complying with this requirement if requested.
(e) Applicants and facility personnel shall obtain both Pennsylvania and FBI criminal history record information reports obtained no longer than 1 year prior to their application for employment. Administrators, operators and non-exempt employes shall, within the time limits required for submitting criminal checks, provide Pennsylvania and FBI checks obtained no longer than 1 year prior to their date of submission. If the date of the record report exceeds the 1 year prior to application for employment or the required date of submission for administrators, operators and nonexempt employes, a new clearance shall be obtained.
(f) Applicants and facility personnel are responsible for reviewing all criminal history record information reports for accuracy.
(g) Applicants and facility personnel may question the Department's determination by submitting a request for review within 30 days of receipt of the determination.
§ 15.135. Applicant rights of review.
(a) An applicant may review, challenge and appeal the completeness or accuracy of the applicant's criminal history record information report under 18 Pa.C.S. §§ 9152--9183 (relating to Criminal History Record Information Act) and, if applicable, Federal regulations at 28 CFR 16.34 (relating to procedure to obtain change, correction or update of identification records).
(b) If an applicant's criminal history record is, as a result of a challenge by the applicant, changed so as to remove a disqualification for employment, a facility may reconsider the applicant's application for positions available at that time.
(c) If an applicant's challenge to the criminal history record is deemed invalid, the applicant's rights for reconsideration by the facility are exhausted.
§ 15.136. Facility personnel rights of review and appeal.
(a) Facility personnel may review, challenge and appeal the completeness or accuracy of criminal history record information report under 18 Pa.C.S. §§ 9152--9183 (relating to Criminal History Record Information Act) and, if applicable, Federal regulations in 28 CFR 16.34 (relating to procedure to obtain change, correction or update of identification records).
(b) If an employe's criminal history record information report is, as a result of a challenge by the employe, changed so as to remove any basis for termination, the facility shall reinstate the employe to either the employe's former position or an equivalent position.
(c) An employe's challenge to the criminal record information report is limited to the appeal rights set forth in 18 Pa.C.S. §§ 9152--9183.
§ 15.137. Provisional hiring.
(a) Administrators may employ applicants on a provisional basis for a single period, not to exceed 30 days for applicants applying for the Pennsylvania criminal history record information report, and not to exceed 90 days for applicants applying for the FBI criminal history record information report, if all of the following conditions are met:
(1) Applicants have applied for the information required under § 15.131 (relating to prospective facility personnel) and provide the administrator with a copy of the completed request forms.
(2) The administrator has no knowledge about applicants which would disqualify them from employment under the acts, subject to 18 Pa.C.S. § 4911 (relating to tampering with public record information).
(3) Applicants swear or affirm in writing that they are not disqualified from employment under the act.
(4) If the information obtained from the criminal history record checks reveals that the applicant is disqualified from employment under § 15.133 (relating to facility responsibilities), the applicant shall be dismissed immediately.
(5) The provisionally employed applicant receives:
(i) An orientation which provides information on policies, procedures and laws which address standards of proper care and recognition and reporting of abuse or neglect, or both, of recipients.
(ii) Regular supervisory observation of the applicant carrying out the applicant's duties.
(6) For a home health care agency, the supervision of a provisionally employed applicant shall include random, direct observation/evaluation of the applicant and care recipient by an employe who has been employed by the home health agency for at least 1 year.
(7) For a home health agency which has been in business for less than 1 year, supervision of a provisionally employed applicant shall include random, direct observation/evaluation of the applicant and care recipient by an employe with prior employment experience of at least 1 year with one or more other home health care agencies.
(b) The administrator or designee shall on the 30th day of provisional employment for a Pennsylvania resident applicant or the 90th day for a non-resident applicant review the contents of the applicant's personnel file to ensure that the required copy of the State Police or FBI criminal background check results is physically present in the folder along with the correspondence from the State Police or the Department advising that the applicant's employment may be continued or must be terminated.
(c) Except as provided in subsection (d), if inspection of the file on day 30 or 90, as appropriate, reveals that the information noted in subsections (a) and (b) has not been provided to the employer, the applicant's employment shall be immediately suspended or terminated.
(d) If information regarding criminal history record reports has not been provided as required due to the inability of the State Police or the FBI to provide it within the mandated time frames, the period of provisional employment is extended until the facility receives the required reports from the State Police or FBI.
§ 15.138. Violations.
(a) Administrative.
(1) An administrator or a designee who intentionally or willfully fails to comply or obstructs compliance with §§ 15.131--15.136 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 §§ 15.131--15.136 commits a violation of this chapter and shall be subject to an administrative penalty under paragraph (3).
(3) The Commonwealth agency which licenses the facility has 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. Chapter 5, Subchapter A and Chapter 7, Subchapter A (relating to practice and procedure of Commonwealth agencies; and judicial review of Commonwealth agency action).
(4) To assist Commonwealth agencies to implement the responsibilities set forth in paragraph (3), representatives of these agencies who have knowledge of violations shall report them to the appropriate Commonwealth licensing agency.
(b) Criminal.
(1) An administrator or a designee 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 1 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 1 year, or both.
REPORTING SUSPECTED ABUSE § 15.141. General requirements.
(a) Administrators or employes who have reasonable cause to suspect that a client is a victim of abuse shall:
(1) Immediately make an oral report to the agency.
(2) Within 48 hours of making the oral report, make a written report to the agency.
(b) Employes making oral or written reports shall immediately notify the facility administrator of these reports.
(c) Agencies shall notify facility administrators, or their designees, and State agencies with facility licensing responsibilities immediately when written reports of abuse are received.
(d) Employes required to report abuse may request facility administrators or their designees to make, or assist them to make, oral or written reports.
§ 15.142. Additional reporting requirements.
(a) Employes or administrators who have reasonable cause to suspect that a recipient is the victim of sexual abuse, serious physical injury or serious bodily injury, or that a recipient's death is suspicious, shall, in addition to the reporting requirements in § 15.141(a) (relating to general requirements):
(1) Immediately make an oral report to law enforcement officials. An employe shall immediately notify the administrator or a designee following a report to law enforcement officials.
(2) Make an oral report to the Department during the current business day or, if the incident occurs after normal business hours, at the opening of the next business day.
(3) Within 48 hours of making the oral report, make a written report to law enforcement officials and the agency.
(b) Law enforcement officials will promptly notify facility administrators or their designees that reports have been made with them.
§ 15.143. Contents of reports.
(a) Written reports under §§ 15.141 and 15.142 (relating to general requirements; and additional reporting requirements) shall be made on forms supplied by the Department. The Department will provide facilities with initial supplies; facilities may duplicate report forms for submission to agencies and law enforcement officials.
(b) The report shall include, at a minimum, the following information:
(1) The name, age and address of the recipient.
(2) The name and address of the recipient's guardian or next-of-kin.
(3) The facility name and address.
(4) A description of the incident.
(5) The specific comments or observations.
§ 15.144. Reports to Department and coroner by agencies.
(a) Department.
(1) Within 48 hours of receipt of a written report under § 15.142 (relating to additional reporting requirements) involving sexual abuse, serious physical injury, serious bodily injury or suspicious death, the agency shall transmit a written report to the Department.
(2) Within 48 hours of receipt of a written report under § 15.142 involving a victim/recipient under 60 years of age, the agency shall transmit a copy of the report to the Department.
(3) 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 evidence of prior abuse.
(v) The name and relationship of the individual responsible for causing the alleged abuse to the victim, if known, and 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 the recipient and notification under subsection (b).
(b) Coroner. For a report under § 15.142 which concerns the death of a recipient, if there is reasonable cause to suspect that the recipient died as a result of abuse, the agency shall give the oral report and forward a copy of the written report to the appropriate coroner within 24 hours.
§ 15.145. Investigation.
(a) Response. Upon receipt of a report under §§ 15.141 and 15.142 (relating to general requirements; and additional reporting requirements), protective services officials shall respond as follows:
(1) If the victim/recipient is aged 60 or older, the agency shall conduct an investigation to determine if the older person who is the subject of the report is in need of protective services. The investigation by the agency shall be conducted as set forth at §§ 15.41--15.47 (relating to investigating reports of need for protective services).
(2) If the victim/recipient is under 60 years of age, the agency may not conduct an investigation. Investigation of these reports shall be conducted by the State agency, if any, which licensed the facility.
(3) If the victim/recipient is under 18 years of age, the agency shall notify, and forward reports to, the regional office of the Department of Public Welfare, Office of Children, Youth and Families or the State ''ChildLine'' and the county office of child protective services.
(4) If the under 60 years of age victim/recipient resides in a nursing home or is receiving home health services, the agency shall notify the Regional Office of the Department of Health and forward reports to that Office.
(5) If the under 60 years of age victim/recipient resides in a personal care home, the agency shall notify the Regional Office of the Department of Public Welfare and forward reports to that Office.
(6) If the under 60 years of age victim/recipient resides in a domiciliary care home or receives services from an adult day care center, the agency shall notify the Department and forward reports to that Department.
(7) If the agency has knowledge or believes that the victim/recipient has mental retardation or mental health issues, the agency shall notify the county MH/MR office in addition to making other reports required by this subsection.
(b) 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 applicable additional information on an ongoing basis.
§ 15.146. Restrictions on employes.
(a) By ______ (Editor's Note: The blank refers to a date 90 days after the effective date of adoption of this proposal), facilities shall develop and submit to the agency and the Commonwealth agency with regulatory authority over the facility a copy of their facility supervision/suspension plan. The plan shall:
(1) Describe policies and procedures to be followed upon notification that an employe is alleged to have committed abuse of a recipient.
(2) Describe how and by whom supervision of alleged abusers will be carried out.
(3) Describe the process of rendering a decision to suspend an employe.
(b) Following written approval of plans by the agency and the Commonwealth agency with regulatory authority over the facility, facilities shall follow these plans in instances involving allegations of abuse by employes.
(c) Changes to plans shall be approved in writing by the agency and the Commonwealth agency with regulatory authority over the facility prior to their implementation.
(d) Upon notification that an employe is alleged to have committed abuse, the facility shall immediately implement the plan of supervision or, when appropriate, suspension of the employe. The facility shall immediately submit to the agency and the Commonwealth agency with regulatory authority over the facility a copy of the employe's supervision plan pertaining to the specific instance of alleged abuse for approval.
(e) Following approval of an individual plan of supervision/suspension/termination by the agency and Commonwealth agency, the facility shall follow the plan. Changes to the plan must be approved by the agency and the Commonwealth agency with regulatory authority over the facility prior to their implementation.
(f) The plan of supervision established by a home health care agency shall, in addition to the requirementsin subsections (a)--(e), include periodic, random direct observation/evaluation of the employe and care recipient by an individual continuously employed by the home health care agency for at least 1 year. For a home health agency in business for less than 1 year, supervision shall include random, direct observation/evaluation by an employe with prior employment experience of at least 1 year with one or more other home health care agencies.
(g) Upon filing of criminal charges against an employe, the Commonwealth agency which licenses the facility shall order the facility to immediately prohibit that employe from having access to recipients at the facility. If the employe is a director, operator, administrator or supervisor, the employe shall be subject to restrictions deemed appropriate by the Commonwealth agency which licenses the facility to assure the safety of recipients at the facility.
§ 15.147. Confidentiality of and access to confidential reports.
(a) General rule. Except as provided in subsection (b), all information concerning a report under this chapter shall be confidential.
(b) Exceptions. Relevant information concerning a report under this chapter shall be made available to the following:
(1) An employe of the Department or of an agency in the course of official duties in connection with responsibilities under this chapter.
(2) An employe of the Department of Health or the Department of Public Welfare in the course of official duties.
(3) An employe 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 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 a 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) The recipient or the 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 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 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.
§ 15.148. Penalties.
(a) Administrative.
(1) An administrator or a designee who intentionally or willfully fails to comply or obstructs compliance with §§ 15.141--15.147 or who intimidates or commits a retaliatory act against an employe 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).
(2) A facility owner that intentionally or willfully fails to comply with or obstructs compliance with §§ 15.141--15.147 or that intimidates or commits a retaliatory act against an employe 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 which regulates the facility has 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. Chapter 5, Subchapter A and Chapter 7, Subchapter A (relating to practice and procedure of Commonwealth agencies; and judicial review of Commonwealth agency action).
(4) To assist Commonwealth agencies to implement the responsibilities set forth in paragraph (3), representatives of these agencies who have knowledge of violations will report them to the appropriate Commonwealth licensing agency.
(b) Criminal.
(1) An administrator or a designee 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 1 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 1 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. If the agency learns of a person's refusal to complete all reporting requirements, the agency shall notify the police.
§ 15.149. Immunity.
An administrator or a facility will not be held civilly liable for any action directly related to good faith compliance with this chapter.
OTHER ADMINISTRATIVE PROVISIONS § 15.[131]161. Waivers.
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[Pa.B. Doc. No. 99-2005. Filed for public inspection November 24, 1999, 9:00 a.m.]
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