[32 Pa.B. 2412]
[Continued from previous Web Page]
AGENCY ACCESS TO OLDER ADULTS AND RECORDS § 15.61. Access to older adults.
(a) Access assured by law. The agency shall have access to older adults who have been reported to need protective services to:
(1) Investigate reports received under this chapter.
(2) Assess the older adult's need and develop a service plan for addressing determined needs.
(3) Provide for the delivery of services by the agency or other service provider arranged for under the service plan developed by the agency.
(b) Access to older adults. Except in emergency or priority protective services cases, access to older adults shall be between the hours of 7 a.m. and 9 p.m.
(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 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 304 of the act (35 P. S. § 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 assessment and service plan or the delivery of services.
(2) The agency can demonstrate that the older adult reported to need protective services is denying access because of coercion, extortion or justifiable fear of future abuse, neglect, or exploitation or abandonment.
§ 15.62. Access to records.
(a) Access assured by law. The agency shall have access to records relevant to:
(1) Investigations of reports received under this chapter.
(2) The assessment of need and the development of a service plan when an older adult's need for protective services has been or is being established.
(3) The delivery of services arranged for under the service plan developed by the agency to respond to an older adult's assessed need for specific services.
(b) Access to records. Except in emergency or priority protective services cases, access to records shall be between the hours of 7 a.m. and 9 p.m.
(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 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 304 of the act (35 P. S. § 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:
(1) The older adult has provided written consent for confidential records to be disclosed and the keeper of the records denies access.
(2) The agency is able to demonstrate that the older adult is denying access to records because of incompetence, coercion, extortion or justifiable fear of future abuse, neglect, exploitation or abandonment.
§ 15.63. Access by consent.
The agency's access to confidential records held by other agencies or individuals and the agency's access to an older adult reported to need protective services shall require the consent of the older adult or a court-appointed guardian except as provided under § 15.61, § 15.62 or § 15.71 (relating to access to older adults; access to records; and involuntary intervention by emergency court order).
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 older adult 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 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.
(b) Legal representation. When the agency petitions the court for emergency involuntary intervention, the agency shall make sure the older adult has the opportunity to be represented by counsel at all stages of the proceedings. If the older adult has an attorney known to the agency, the agency shall attempt to notify that attorney before it files a petition for emergency involuntary intervention. If the agency has no knowledge of an attorney who represents the older adult, the agency shall attempt to notify the legal services provider identified by the area agency on aging in its protective services plan to provide legal assistance under this chapter. The notification shall contain enough information about the risk to the older adult and the proposed remedy to enable counsel to determine if representation is necessary at the emergency hearing. Notification to counsel shall include a copy of the petition with the affidavits attached as well as the time, date and place of presentation of the petition except when § 15.72(b) (relating to petition) applies.
§ 15.72. Petition.
(a) Contents. The petition which the agency files for an emergency court order of involuntary intervention shall state the following information:
(1) The name, age and physical description of the older adult insofar as these facts have been ascertained.
(2) The address or other location where the older adult can be found.
(3) The name and relationship of a guardian, caregiver or other responsible party residing with the older adult, when applicable.
(4) A description of how the older adult is at imminent risk of death or serious physical harm.
(5) The physical and mental status of the older adult, to the extent known.
(6) The attempts made by the agency to obtain the informed consent of the older adult, or the older adult's court appointed guardian, when applicable, to the provision of protective services by the agency.
(7) The specific short-term, least restrictive, involuntary protective services which the agency is petitioning the court for an order to provide.
(8) A description of how the proposed services would remedy the situation or condition which presents an imminent risk of death or serious physical harm.
(9) A statement showing why the proposed services are not overbroad in extent or duration and why less restrictive alternatives as to their extent or duration are not adequate.
(10) A statement that other voluntary protective services have been offered, attempted or have failed to remedy the situation.
(11) A statement that reasonable efforts have been made to communicate with the older adult in a language the older adult understands in the case of an older adult who is hearing impaired or who does not understand the English language.
(12) Other relevant information deemed appropriate by the agency.
(b) Oral petitions. Nothing in this chapter precludes or prohibits the oral presentation of a petition for emergency involuntary intervention. When oral presentation is warranted, the written petition shall be prepared, filed and served on the older adult and counsel within 24 hours of the entry of the emergency order or on the next business day, when the 24-hour period would fall on a weekend or legal holiday.
(c) Affidavits. Allegations which are not based upon personal knowledge shall be supported by affidavits provided by persons having that knowledge. The affidavits shall be attached to the petition.
(d) Emergency order duration. In the petition, the agency shall request an emergency order of a specific duration which may not exceed 72 hours from the time the order is granted. The agency shall request the court of common pleas to hold a hearing when the initial emergency order expires to review the need for an additional emergency court order or other continued court and protective services involvement, or both. The issuance of an emergency order is not evidence of the competency or incompetency of the older adult.
§ 15.73. Court appointed counsel.
The act requires that an emergency order under this section provides that the older adult has the right to legal counsel. If no representation for the older adult is present at the time the emergency order is requested, the agency shall inform the court of its efforts to notify counsel under § 15.71(b) (relating to involuntary intervention by emergency court order). If the older adult is unable to provide for counsel, the court will appoint counsel as authorized by the act at the time the emergency order is entered to ensure that legal representation will be provided at the time of the emergency protective services review hearing.
§ 15.74. Forcible entry.
When the agency requests a court order for forcible entry to the premises where an older adult at imminent risk of death or serious physical harm is located, the agency shall request the court to direct that a local or State police officer carry out the forcible entry accompanied by a representative of the agency.
§ 15.75. Health and safety requirements.
The agency shall take reasonable steps to assure protection of the older adult's dependents and property while the older adult is receiving services under an emergency court order. The agency is not responsible for the actual provision of all needed services but shall coordinate professional linkage referrals and follow-up to assure that the needed services and protections are being provided and maintained.
§ 15.76. Documentation.
The agency shall document in the case record emergency intervention actions it takes.
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 adult during the investigation that a report of need for protective services has been made and shall provide the older adult with a brief summary of the nature of the report. The protective services caseworker performing the investigation shall determine when and how this notification is accomplished.
(2) If the older adult requests additional information contained in the record, the agency shall provide the information subject to the requirements in § 15.105 (relating to limited access to records and disclosure of information).
(3) A denial of services by the Department or an authorized agency under this chapter may be appealed under Chapter 3 (relating to fair hearings and appeals).
(4) Nothing in this chapter limits the rights of an older adult to file a petition under 23 Pa.C.S. Chapter 61 (relating to the Protection from Abuse Act).
(5) An older adult determined to need protective services has the right to refuse protective services except as provided under a court order. The agency shall obtain, when possible, the older adult's signed statement refusing protective services or document unsuccessful efforts to obtain a signed statement.
(6) An older adult has the right to legal counsel when the agency petitions the court for emergency or other orders to provide protective services without the older adult's consent. The act provides that if an older adult is unable to provide for counsel, counsel shall be appointed by the court. Under § 15.71 (relating to involuntary intervention by emergency court order), the agency is required to take steps to involve counsel when emergency petitions are filed.
(7) As provided under §§ 15.101--15.105 (relating to confidentiality), an older adult has the right to the confidentiality of information received and maintained by the agency in reports, investigations, service plans and other elements of a case record.
§ 15.82. Rights of alleged abusers.
An individual who, as a result of a protective services investigation, is determined to be a perpetrator of the abuse, neglect, exploitation or abandonment of an older adult is entitled to the following if the report is substantiated by the agency:
(1) The agency shall notify the alleged perpetrator at the conclusion of the investigation of the report that allegations have been made and shall provide the alleged perpetrator with a brief summary of the allegations.
(2) As provided under § 15.105 (relating to limited access to records and disclosure of information), the alleged perpetrator may request, and the agency shall provide, additional information contained in the report.
(3) An alleged perpetrator is entitled to file an appeal with the Department under 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) to challenge the agency's finding resulting from the investigation of a report made under this chapter. The agency's finding is that information, after an investigation is concluded, which substantiated the need for protective services. The appeal process applicable to older adults under Chapter 3 (relating to fair hearings and appeals) also applies to alleged perpetrators of abuse, neglect, exploitation or abandonment. This appeal shall be in writing to the Secretary and be postmarked within 30 days from the date of notification by the agency required under this section.
PROVISION OF SERVICES § 15.91. General.
(a) Protective services. Protective services are activities, resources and supports provided to older adults under the act after the initiation of an investigation to prevent, reduce or eliminate abuse, neglect, exploitation and abandonment. Protective services activities include the following:
(1) Administering protective services plans.
(2) Receiving and maintaining records of reports of abuse.
(3) Conducting investigations of reported abuse.
(4) Conducting assessments and developing service plans.
(5) Petitioning the court.
(6) Providing emergency involuntary intervention.
(7) Arranging for available services needed to fulfill service plans, which may include, as appropriate, arranging for services for other household members 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).
(8) Purchasing, on a temporary basis, as provided under § 15.112 (relating to uses of funding authorized by the act), services determined by a service plan to be necessary to reduce, correct or eliminate abuse, neglect, exploitation or abandonment of an older adult when the services are not available within the existing resources of the agency or other appropriate provider.
(b) Availability of protective services. The agency shall offer protective services under one or more of the following conditions:
(1) An older adult requests the services.
(2) Another interested person requests the services on behalf of an older adult.
(3) If, after initiation of an investigation of a report, the agency determines the older adult needs the services.
(c) Informed consent required. The agency shall provide protective services only to older adults who give informed consent to the services. The consent shall be in writing when possible. If the older adult does not consent or, if after consenting, withdraws the consent, protective services may not be provided unless the provision of the services is allowable as a consent exemption.
(d) Consent exemptions. Protective services may be provided to older adults in need of protective services without consent only in the following situations:
(1) When ordered by a court under section 304 of the act (35 P. S. § 10225.304).
(2) When requested by an older adult's court-appointed guardian.
(3) When provided under § 15.71 (relating to involuntary intervention by emergency court order).
(e) Interference with services. If a person interferes with the provision of services or interferes with the right of an older adult to consent to the provision of services, the agency may petition the court for an order enjoining the interference.
§ 15.92. Assessment.
(a) When a report is substantiated by the agency, or if 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 assessment. If the older adult does not consent, the agency may apply § 15.61 or § 15.71 (relating to access to persons; and involuntary intervention by emergency court order).
(b) The protective services caseworker shall make face-to-face contact with the older adult to evaluate and document information including the following:
(1) Personal appearance.
(2) Physical environment.
(3) Physical health.
(4) Mental functioning.
(5) Activities of daily living.
(6) Social environment.
(7) Economic status--including eligibility for public and private entitlements or resources as defined under § 15.2 (relating to definitions).
(8) Nutrition.
(9) Recent experiences--losses, separations, major changes in relationships or environments.
(10) The need for a formal medical or psychiatric evaluation.
(c) The assessment shall be written and include, whenever possible, older adult-given information for each area of functioning.
(d) The assessment shall be written so that the reader can determine which information came from the older adult and which constitutes the worker's judgment.
(e) The assessment shall be written in a standard format as required by the Department. Data entries shall be based on commonly accepted and defined nomenclature to make the data more usable across and within agencies and to ensure that older adults are evaluated uniformly according to the standardized definitions.
§ 15.93. Service plan.
(a) Upon completion of the 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 adult or his appointed guardian, and other family members, if appropriate. Protective services may not be provided under the act to an older adult 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).
(b) The service plan shall be in writing and shall include a recommended course of action which utilizes the least restrictive alternative, encourages self-determination and continuity of care. The recommended course of action may also include pursuit of civil or criminal remedies.
(c) The service plan shall describe the older adult's identified needs, the goals to be achieved, the specific services which will be used to support attainment of the goals and the procedures to be followed with regard to regular follow-up and assessment of progress. Specific services which may be used to implement the service plan include:
(1) Medical evaluations.
(2) Psychiatric or psychological evaluations.
(3) Legal services.
(4) Public or private entitlements or resources.
(5) Financial management.
(6) Personal or environmental safety.
(7) Emergency shelter.
(8) Transportation.
(9) Home delivered meals.
(10) Attendant care.
(11) Homemaker services.
(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 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.
§ 15.94. Service delivery.
(a) The agency shall, with the consent of the older adult, provide for implementation of the course of action recommended in the service plan. The implementation may be provided by direct provision of services by the agency, purchase of services from another agency, referral to another agency, provision of services by family and friends or a combination of these or other methods.
(b) Protective services may not be provided under the act to an older adult who does not consent to services or who, having consented, withdraws consent, unless the services are ordered by a court, requested by a guardian of the older adult or provided under § 15.71 (relating to involuntary intervention by emergency court order).
§ 15.95. Case management.
(a) Coordination of services. The protective services caseworker is responsible for coordination of sources of services being provided to the older adult who needs protective services. The caseworker shall also take reasonable steps to assure that services necessary to achieve the goals in the service plan are being provided.
(b) Case records. A separate record shall be established to contain information on protective services cases. The protective service case record on an older adult shall be separated from other records maintained by the agency on that older adult. Confidentiality of the protective services case record shall be maintained by the agency as set forth in §§ 15.101--15.105 (relating to confidentiality). The protective services case record includes the following:
(1) The report of a need for protective services.
(2) The record of investigation.
(3) The written findings of the assessment.
(4) The service plan.
(5) Notes of contact with the older adult and others involved with the case.
(6) Court documents--for example, petitions, orders and the like.
(7) Letters of notification--abused and abuser.
(c) Reassessment. Reassessment shall be done for protective service clients.
(1) Reassessment shall be written in the standardized format established by the Department.
(2) Reassessment shall be done before a protective services case is terminated, transferred, it is the agency's judgment that a reassessment is appropriate or the older adult's condition has changed.
§ 15.96. Termination of protective services.
(a) The agency shall terminate protective services when the older adult is no longer ''an older adult in need of protective services'' under § 15.2 (relating to definitions).
(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 older adult.
(2) By closing the case when a court order for services has terminated and the older adult does not consent to further service intervention.
(3) By transferring the older adult to the service management system of the area agency.
(4) By transferring the 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 of this action and its rationale and shall attempt to secure a signed statement of understanding concerning the action. When the agency transfers a protective services case, the case record shall reflect the transfer of an older adult to another agency, the specific agency of referral and the acceptance of the referral by the other agency.
CONFIDENTIALITY § 15.101. General.
Information contained in the agency's protective services case files, as defined under § 15.2 (relating to definitions), shall be considered confidential and shall be maintained under this chapter.
§ 15.102. Maintenance of case records.
(a) Protective services case 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 older adult and others involved with the case, court documents and letters of notification may not be transferred to, or reprinted for, other agency files. The assessment and service plan may be transferred to other agency case files with assurance by the agency that an older adult's complete protective services case record can be immediately produced.
(b) When an individual case record is removed from its storage location for use by an authorized person, the person shall sign for the 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 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 the case record.
(e) For the purposes of substantiating a pattern of abuse, neglect, exploitation or abandonment, the name of the older adult reported to be in need of protective services and other information relevant to the circumstances which led to the report may be maintained for 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 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 records and for the destruction of case records so that unauthorized persons are not able to gain access to information from case 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 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 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.
(c) A staff person who is to be authorized to have access to confidential information related to protective services cases shall sign a statement provided by the Department, assuring knowledge of applicable confidentiality requirements and the penalties for violating them.
§ 15.104. Penalties for violation of confidentiality requirements.
(a) If a staff person who is authorized to have access to confidential information under this chapter is strongly suspected of violating the requirements in the signed confidentiality statement under § 15.103(c) (relating to responsibilities of staff with access to confidential information), that person shall be immediately suspended from protective services duties pending an investigation and determination of culpability.
(b) If a staff person who is authorized to have access to confidential information under this chapter is determined upon investigation to have violated the requirements in the signed confidentiality statement under § 15.103(c), that person shall be subject to the appropriate disciplinary action in the confidentiality statement.
§ 15.105. Limited access to records and disclosure of information.
Information in a protective services case 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. The protective service agency shall disclose case record information for the purpose of in camera review by the court.
(2) If an investigation by the agency results in a report of criminal conduct, law enforcement officials shall have access to relevant records maintained by the agency or the Department.
(3) In arranging specific services to effect service plans, the agency may disclose to appropriate service providers information necessary to initiate the delivery of services.
(4) A subject of a report, a court-appointed guardian or an attorney providing legal services to the subject of the report made under § 15.23 (relating to receiving reports; general agency responsibility) may receive, upon written request, information contained in the report except that prohibited from being disclosed by paragraph (5).
(5) The release of information that would identify the person who made a report of suspected abuse, neglect, exploitation or abandonment or a person who cooperated in a subsequent investigation, is prohibited unless the Secretary can determine that the release will not be detrimental to the safety of the person. Prior to releasing information under this paragraph, the Secretary will notify the person whose identity would be released that the person has 45 days to advise the Secretary why this anticipated release would be detrimental to the safety of that person.
(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 case record relevant to the appeal.
(7) For the purposes of monitoring agency performance, appropriate staff of the Department may have access to agency protective services records.
(8) For the purposes of monitoring agency performance and carrying out other administrative responsibilities, individuals with local administrative authority over the protective services program may have access to agency protective services records.
FINANCIAL OBLIGATIONS § 15.111. Coordination of available resources.
(a) The agency shall insure that funding authorized under the act is not used to supplant public and private entitlements or resources as defined in § 15.2 (relating to definitions) for which older adults are, or may be, eligible.
(b) The agency shall attempt to establish the 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.
(c) The agency is required to coordinate the utilization of public and private entitlements and resources. This chapter does not establish a means test for the provision of protective services. A protective service client who receives a service may not be required to pay a fee not required of other older adults receiving the same service.
§ 15.112. Uses of funding authorized by the act.
The agency may utilize funding authorized by the act to pay for activities, including the following:
(1) Administering protective services plans as described in § 15.12(b) (relating to administrative functions and responsibilities of area agencies on aging).
(2) Receiving reports and maintaining records of reports as provided under §§ 15.23 and 15.101--15.105 (relating to receiving reports; general agency responsibility; and confidentiality).
(3) Conducting investigations under §§ 15.41--15.47 (relating to investigating reports of need for protective services).
(4) Conducting assessments and developing service plans under §§ 15.92 and 15.93 (relating to assessment; and service plan).
(5) Petitioning the court under §§ 15.61--15.63 and 15.71--15.75 (relating to agency access to older persons and records; and emergency intervention).
(6) Providing emergency involuntary intervention under §§ 15.71--15.75.
(7) Arranging for available services needed to carry out service plans, which may include, as appropriate, arranging for services for other household members to reduce, correct or eliminate abuse, neglect, exploitation or abandonment of an older adult. The inclusion of services needed by other household members in the service plan will allow the agency to arrange for the provision of those services through public and private entitlements or resources for which the individuals are or may be eligible. The inclusion does not obligate the agency to pay for the services or to provide services which are not available from another appropriate provider.
(8) Purchasing, on a temporary basis, services determined by the service plan to be necessary to reduce, correct or eliminate abuse, neglect, exploitation or abandonment of an older adult when the services are not available within the existing resources of the agency or another appropriate provider. Funding authorized by the act and expended under an area agency on aging protective services plan may not be used for the purchase of services which are already financed through other State-administered plans for local service delivery or through local public and private resources under those plans except with the specific prior approval of the Department. The protective services plan shall identify the agency's proposed expenditures for activities under this paragraph. The agency shall insure that every attempt has been made to provide the service through existing agency resources, appropriate utilization of other providers and the coordination of public and private entitlements and resources prior to entering into the purchase of services for a protective services client.
§ 15.113. Time limitation on service purchases.
(a) After exhausting available steps to provide necessary services through existing agency resources, utilization of other providers and the coordination of public and private entitlements and resources, the agency may purchase those services on a time-limited basis.
(b) The purchase of services under this section is limited to a 30-day period which may be renewed only with adequate justification. The agency shall consider the 30-day period to be a maximum time limit for the purchase of services and not a standard time allotment. After the decision to purchase services has been made, the agency shall continue the pursuit of alternate ways to provide the services and terminate the purchase of services as soon as possible.
(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 record as required by § 15.95(b) (relating to case management).
§ 15.114. Obligation of the Commonwealth and the counties.
The obligation of the Commonwealth and the counties to provide funds to the Department or an agency for services provided under this chapter shall be entirely discharged by the appropriations made to the Department or an agency. If the agency has met its responsibility under the law, no action at law or equity may be instituted in a court to require the Department, an agency, county or the Commonwealth to provide benefits or services under the act for which appropriations from the Commonwealth or counties are not available. The responsibility of the area agency on aging, the county and the Commonwealth to provide funding is met when resources authorized by the act and provided under approved area agency on aging plans have been expended.
STAFF TRAINING AND EXPERIENCE STANDARDS § 15.121. Protective services staff qualifications.
(a) General. The area agency on aging shall assure that staff directly involved with the protective services caseload meet the minimum standards of training and experience in this chapter. The minimum standards apply to staff assigned to protective services on a full-time basis, a part-time basis or as standby staff. The minimum standards apply to incumbent staff as well as those hired after November 26, 1988.
(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, assessments and service planning and arrangement to submit the following information:
(1) Under 18 Pa.C.S. §§ 9101--9183 (relating to the criminal history record information act), a report of criminal history record information from the State Police or a statement from the State Police that the State Police Central Repository contains no information relating to that person. The criminal history record information shall be limited to that which is disseminated under 18 Pa.C.S. § 9121(b)(2) (relating to general regulations).
(2) If the applicant or assignee is not a resident of this Commonwealth, a report of Federal criminal history record information under the Federal Bureau of Investigation appropriation of Title II of the Act of October 25, 1972 (Pub. L. No. 92-544, 86 Stat. 1109).
(c) Staff training and experience requirements. The minimum standards for protective services job functions are as follows:
(1) Protective services supervisor. A protective services supervisor shall:
(i) Have 3 years direct aging casework experience or an equivalent combination of education and experience.
(ii) Complete the curriculum described in § 15.122 (relating to protective services casework training curriculum).
(iii) Complete the curriculum described in § 15.123 (relating to protective services investigation training curriculum) if the protective services supervisor will be performing protective services investigations.
(iv) Complete written evaluations that assess competencies achieved by the learner.
(v) Undergo in-service training in protective services annually as required by the Department.
(2) Protective services caseworker. A protective services caseworker shall:
(i) Have 1 year direct aging casework experience.
(ii) Complete the curriculum described in § 15.122.
(iii) Complete the curriculum described in § 15.123.
(iv) Complete written evaluations that assess competencies achieved by the learner.
(v) Undergo in-service training in protective services annually as required by the Department.
(3) Protective services intake workers. Staff persons designated to receive reports of older adults who need protective services shall complete the curriculum under § 15.124 (relating to protective services intake training curriculum).
§ 15.122. Protective services casework training curriculum.
The protective services casework training curriculum shall consist of comprehensive training including the following topics:
(1) An overview of abuse, neglect, exploitation and abandonment.
(2) Laws and regulations of the Commonwealth relating to abuse, neglect, exploitation and abandonment of older adults.
(3) Detection of abuse, neglect, exploitation and abandonment.
(4) Protective services case assessments.
(5) Provision of protective services.
(6) Interviewing skills.
(7) The resistant older adult.
(8) Utilization of local resources.
(9) Incompetence or incapacity.
(10) Relationships with other agencies.
(11) Confidentiality.
(12) Institutional investigations.
(13) Service options for victims of abuse, neglect, exploitation and abandonment.
(14) Informed consent.
(15) Self-neglect.
(16) Retaliation.
§ 15.123. Protective services investigation training curriculum.
The protective services investigation training curriculum shall consist of comprehensive training including the following topics:
(1) Laws and regulations of the Commonwealth related to investigations and criminal procedures.
(2) The criminal justice system.
(3) Developing the investigative plan.
(4) Investigative techniques.
(5) Maintaining control of the interview.
(6) Interviewing reporters.
(7) Interviewing collateral sources.
(8) Interviewing victims.
(9) Observation techniques.
(10) Techniques to obtain documentary evidence.
(11) Techniques to gather and preserve physical evidence.
(12) Closing the investigation.
(13) Presenting testimony in court.
(14) Coordination with other State agencies.
§ 15.124. Protective services intake training curriculum.
The protective services intake training curriculum shall consist of training including the following topics:
(1) Interviewing the reporter.
(2) Completion of the report form.
(3) Preliminary case status assessment to determine report categories.
(4) Requirements for referral of the report to the protective services staff.
(5) Emergency procedures.
(6) Confidentiality.
§ 15.125. Availability of training.
(a) The Department will provide for the development of training curricula described in this section and will require the training to be conducted on a timely and recurring basis. The Department will also provide for annual in-service training.
(b) The agency shall utilize staff meeting the requirements in § 15.121(c)(1) and (2) (relating to protective services staff qualifications) to conduct training for protective services intake workers. The training shall be in conformity with the curriculum for protective services intake workers established by the Department.
§ 15.126. Training evaluation.
A person who completes the training set forth for each job function in § 15.121 (relating to protective services staff qualifications) shall complete written evaluations that assess competencies achieved by the learner.
§ 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 § 15.122 (relating to protective services casework training curriculum).
(b) Annual in-service training shall consist of a minimum of 1 day of training and may include the following topics:
(1) Update on laws and regulations relating to protective services.
(2) Technical assistance for common problems.
(3) Best practice presentations.
CRIMINAL HISTORY RECORD INFORMATION REPORTS § 15.131. (Reserved).
§ 15.141. Prospective facility personnel.
(a) General rule. A facility shall require applicants for employment to submit applications with a criminal history report, obtained within 1 year immediately preceding the date of application, or as in § 15.144 (relating to procedures), as follows:
(1) State Police criminal history record. Facilities shall require all applicants to submit a State Police criminal history record.
(2) Federal criminal history record. If the applicant is not and for the 2 years immediately preceding the date of application has not been a resident of this Commonwealth, the facility shall require the applicant to submit a Federal criminal history record and a full set of fingerprints to the Department which will be forwarded to the Federal Bureau of Investigation.
(b) Proof of residency. Facilities may require an applicant to furnish proof of residency, including, but not limited to, any one of the following documents:
(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) Employment records, including records of unemployment compensation.
§ 15.142. Employee requirements.
(a) The following employees are required to submit a criminal history report:
(1) Administrators and operators who have direct contact with clients and who began serving as administrators and operators after July 1, 1998. Residents of this Commonwealth shall comply within 30 days of employment and nonresidents shall comply within 90 days.
(2) Employees of a facility who were employed after July 1, 1998. Residents of this Commonwealth shall comply within 30 days of employment and nonresidents shall comply within 90 days.
(3) Exceptions are as follows:
(i) Employees 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.
(ii) Employees who have complied with this section who transfer to another facility established or supervised, or both, by the same operator.
(iii) Employees who are employed by a new facility solely through a transfer of ownership of that facility.
(iv) A consumer attendant.
(v) An individual providing care to a care-dependent person, and employed by the care-dependent person, or by another person designated by the care-dependent person, and not by or through a home health care agency.
(vi) An individual, employed by an enterprise that operates facilities and nonfacilities in the same physical location, who has no employment responsibilities in the facility (Example: An individual employed by a hospital which also has within it a long-term care nursing unit. The individual is employed to work in the hospital).
(vii) A contract employee who has neither direct contact with residents in a facility nor unsupervised access.
(viii) An individual, employed by a home health agency or other entity that supplies, arranges for, or refers personnel to provide care to care-dependent persons, who is employed for purposes other than providing care in a facility or in a recipient's place of residence (example: an individual employed as a bookkeeper by an agency which supplies homemaker/home health aides).
(ix) An individual functioning in a facility as a volunteer.
(b) Employees at facilities that supply, arrange for, or refer their employees to provide care in other facilities shall provide a criminal history report to the facility that supplies, arranges for, or refers them and to the facility at which they provide care. The exemptions of this section are applicable to these employees. (Example: Employees of a home health care staffing agency assigned by the agency to provide care in a long-term care nursing facility must provide a criminal history report to the staffing agency and to the long-term care nursing facility.) The staffing agency shall be responsible for notifying the employee of criminal history report requirements.
(c) Criminal history reports provided by the Department of Education, under the Nurse Aide Resident Abuse Prevention Training Act (63 P. S. §§ 671--680), which meet the criteria established in this chapter may be accepted to satisfy the requirements of this chapter.
§ 15.143. Facility responsibilities.
(a) A facility may not hire an applicant nor retain an employee required to submit a criminal history report if the criminal history report reveals a felony conviction under The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. §§ 780-101--780-144).
(b) A facility may not hire an applicant nor retain any employee required to submit a criminal history report if the criminal history 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 tampering with records or identification).
(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, victim or party).
(24) A felony offense under section 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) A facility may not hire an applicant nor retain an employee required to submit a report if the criminal history report reveals 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).
(d) A facility shall ensure that applicant or employee responsibility to obtain criminal history reports is explained to each applicant or employee orally and in writing in a language understood by the applicant or employee.
(e) Facilities shall maintain employment records which include copies of completed request forms for criminal history reports, State Police criminal history records and Department letters of determination regarding Federal criminal history records.
(f) An administrator shall assure that information obtained from State Police criminal history records and Department letters of determination regarding Federal criminal history records remain confidential and are used solely to determine an applicant's eligibility for employment or an employee's eligibility for retention.
(g) If the decision not to hire or to terminate employment is based in whole or in part on State Police criminal history records, Department letters of determination regarding Federal criminal history records, or both, facilities shall provide applicants and employees with information on how to appeal to the sources of criminal history records if they believe the records are in error.
§ 15.144. Procedure.
(a) Applicants and employees required to obtain a criminal history report from the State Police may obtain forms from a State Police 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 applicants and employees to return the form to a designated individual for submission by the facility.
(b) Applicants and employees required to obtain a Federal criminal history report shall obtain the information packet from the facility or the Department.
(1) Applicants and employees shall return the Federal Bureau of Investigation fingerprint card and forms, and a cashier's check, certified check or money order payable to the Federal Bureau of Investigation in the exact amount established by the Federal Bureau of Investigation. Upon receipt, the Department will submit the request to the State Police for transfer to the Federal Bureau of Investigation.
(2) Upon receipt of the criminal history report from the Federal Bureau of Investigation, the Department will determine if the applicant is eligible for employment or if the employee may be retained. The Department will contact the applicant or employee with a written letter of determination.
(c) Applicants and employees shall complete all necessary forms. Facilities shall assist an applicant or employee to comply with this requirement if requested.
(d) Facility administrators may assume financial responsibility for the fees through a quarterly payment system.
(e) Applicants and employees are responsible for reviewing their own criminal history reports for accuracy.
§ 15.145. Applicant or employee rights of review.
(a) An applicant or employee may review, challenge and appeal the completeness or accuracy of the applicant's or employee's criminal history report under 18 Pa.C.S. §§ 9125 and 9152--9183 or 28 CFR 16.34 (relating to procedure to obtain change, correction or updating of identification records), or both.
(b) An applicant or employee may challenge the conviction comparison interpretation of the Department involving the Federal criminal history record by filing an appeal with the Department under 1 Pa. Code Chapter 35 (relating to formal proceedings in administrative practice and procedure) and Chapter 3 (relating to fair hearings and appeals). Appeals must be postmarked within 30 days from receipt of the Department's letter and be in writing to the attention of the Secretary of the Department.
§ 15.146. Provisional hiring.
(a) Facilities may employ applicants on a provisional basis for a single period not to exceed 30 days for applicants requesting a State Police criminal history record, and a single period not to exceed 90 days for applicants requesting a Federal criminal history record, if all of the following conditions are met:
(1) Applicants shall have applied for a criminal history report and provided the facility with a copy of the completed request forms.
(2) The facility shall have no knowledge about the applicant that would disqualify the applicant from employment under 18 Pa.C.S. § 4911 (relating to tampering with public record information).
(3) The applicant shall swear or affirm in writing that the applicant is not disqualified from employment under the act.
(4) The provisionally employed applicant shall receive 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.
(5) The facility shall regularly supervise the applicant carrying out assigned duties. The results of the observations shall be documented in the employee personnel file.
(6) A home health care agency shall supervise the applicant through random, direct observation and evaluation of the applicant and care recipient by an employee who has been employed by the home health agency for at least 1 year. The results of the observations shall be documented in the employee personnel file.
(7) A home health agency which has been in business for less than 1 year shall supervise the applicant through random, direct observation and evaluation of the applicant and care recipient by an employee with prior employment experience of at least 1 year with one or more other home health care agencies. The results of the observations shall be documented in the employee personnel file.
(b) If the information obtained from the criminal history report reveals that the applicant is disqualified from employment in accordance with § 15.143 (relating to facility responsibilities), the applicant shall be dismissed immediately.
(c) The administrator or designee shall review the contents of the applicant's personnel file on the 30th day of provisional employment of a Pennsylvania resident applicant or the 90th day of provisional employment of a nonresident applicant to insure that the copy of the State Police criminal history record, the letter of determination issued by the Department, or both is physically present in the folder along with correspondence from the State Police advising that the applicant's employment may be continued or must be terminated.
(d) Except as provided in subsection (e), if inspection of the file reveals that the State Police criminal history record, the letter of determination issued by the Department, or both has not been provided to the employer, the applicant's employment shall be immediately suspended or terminated.
(e) If the criminal history record report, the letter of determination issued by the Department, or both, has not been provided due to the inability of the State Police or the Federal Bureau of Investigation to provide them timely, the period of provisional employment shall be extended until the facility receives the required reports. During the extended provisional employment period, the supervision and documentation requirements of this section shall be continued.
§ 15.147. Violations.
(a) Administrative.
(1) An administrator or designee or facility owner-operator who intentionally or willfully fails to comply or obstructs compliance with §§ 15.141--15.146 commits a violation of this chapter and shall be subject to an administrative penalty.
(2) Violations and penalties shall be determined by the Commonwealth agency that licenses the facility. The Commonwealth agency may issue an order assessing a civil penalty of not more than $2,500. An order issued under this paragraph is subject to due process as set forth in 2 Pa.C.S. §§ 501--508 and 551--555 (relating to practice and procedure of Commonwealth agencies; and practice and procedure of local agencies) and judicial review in 2 Pa.C.S. §§ 701--704 and 751--754 (relating to judicial review of Commonwealth agency action; and judicial review of local agency action).
(3) Representatives of the Departments of Aging, Health and Public Welfare who suspect violations of this section shall report them to the appropriate Commonwealth licensing agency under procedures developed by the Department in consultation with the licensing agency. The report shall be made in writing and include, at a minimum, the facility, the administrator, owner, operator or designee suspected of committing the violation and a description of the suspected violation.
(b) Criminal. An administrator or designee or facility owner who intentionally or willfully fails to comply or obstructs compliance with §§ 15.141--15.146 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 § 15.151. General requirements.
(a) Administrators or employees who have reasonable cause to suspect that a recipient is a victim of abuse shall:
(1) Immediately make an oral report to the agency.
(2) Make a written report to the agency within 48 hours.
(b) Employees making oral or written reports shall immediately notify the administrator or designee of these reports.
(c) Agencies shall notify administrators, or their designees, and State agencies with facility licensing responsibilities immediately when written reports of abuse are received.
(d) Employees required to report abuse may request administrators or their designees to make, or assist the employees to make, oral or written reports.
§ 15.152. Additional reporting requirements.
(a) Administrators or employees 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 § 15.151(a):
(1) Immediately make an oral report to law enforcement officials. An employee shall immediately notify the facility 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) Make a written report within 48 hours of making the oral report, to law enforcement officials and the agency.
(b) Law enforcement officials shall promptly notify facility administrators or their designees that reports have been made with them.
(c) Administrators or employees shall, in addition to complying with these requirements, comply with reporting requirements of the Commonwealth licensing agency that licenses or funds the facility.
§ 15.153. Contents of reports.
(a) Written reports under §§ 15.151 and 15.152 (relating to general requirements; and additional reporting requirements) shall be made on forms supplied or approved by the Department.
(b) The report shall include, at a minimum, the following information:
(1) Name, age and address of recipient.
(2) Name, address of recipient's guardian or next-of-kin.
(3) Facility name and address.
(4) Description of the incident.
(5) Specific comments or observations.
§ 15.154. Reports to Department and coroner by agencies.
(a) Department.
(1) Within 48 hours of receipt of a written report under § 15.152 (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) 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 recipient and notification under subsection (b).
(b) Coroner. For a report under § 15.152 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 county coroner of the county wherein the death occurred.
§ 15.155. Investigation.
(a) Agency response. Upon receipt of a report under §§ 15.151 and 15.152 (relating to general requirements; and additional reporting requirements), the agency shall respond as follows:
(1) If the victim or recipient is 60 years of age or older, the agency shall conduct an investigation to determine if 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 or recipient is under 60 years of age, the agency may not conduct an investigation. The investigation of the reports shall be conducted by the State agency, if any, that licensed the facility.
(3) If the victim or 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 victim or recipient resides in a nursing home or is receiving home health services, the agency shall notify and forward reports to the Department of Health office with facility licensing responsibilities and the regional office of the Department of Health.
(5) If the victim or recipient resides in a personal care home, the agency shall notify and forward reports to the Department of Public Welfare regional office with facility licensing responsibilities.
(6) If the victim or recipient resides in a domiciliary care home or receives services from an adult daily living center, the agency shall notify and forward reports to the Department.
(7) If the agency has knowledge or believes that the victim or recipient has mental retardation or a mental health condition, the agency shall notify the Department of Public Welfare office with facility licensing responsibilities and 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, the Commonwealth agency that licensed the facility and the agency shall coordinate their respective investigations, and shall advise each other and provide applicable additional information on an ongoing basis.
§ 15.156. Restrictions on employees.
(a) Upon notification that an employee is alleged to have committed abuse, the facility shall immediately develop and implement an individual plan of supervision or, when appropriate, suspension of the employee. The facility shall submit to the agency and the Commonwealth agency with regulatory authority over the facility a copy of the employee's individual plan of supervision for approval within the agencies' accepted time frames.
(b) Following approval of an individual plan of supervision 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.
(c) The individual plan of supervision established by a home health care agency shall, in addition to the requirements of this section, include periodic, random direct observation and evaluation of the employee 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. An evaluation by an employee with prior employment experience of at least 1 year with one or more other home health care agencies.
(d) Upon being notified by law enforcement officials of a decision to file criminal charges against an employee, as a result of a report made in compliance with § 15.152 (relating to additional reporting requirements), the facility shall inform the Commonwealth agency that licenses the facility. The Commonwealth licensing agency shall order the facility to immediately deny the employee access to recipients at the facility. If the employee is a director, operator, administrator or supervisor, the employee shall be subject to restrictions by the Commonwealth licensing agency to assure the safety of recipients at the facility.
§ 15.157. Confidentiality of and access to confidential reports.
(a) General rule. Except as provided in subsection (b) and § 15.105 (relating to limited access to records and disclosure of information), 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 employee of the Department or of an agency in the course of official duties in connection with responsibilities under this chapter, including the long term care ombudsman.
(2) An employee of the Department of Health or the Department of Public Welfare in the course of official duties.
(3) An employee of an agency of another state that 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 the victim is being treated if the director or designee suspects 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 under 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 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, the 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.
§ 15.158. Penalties.
(a) Administrative.
(1) An administrator or a designee or facility owner who intentionally or willfully fails to comply or obstructs compliance with §§ 15.151--15.157 or who intimidates or commits a retaliatory act against an employee who complies in good faith with this chapter commits a violation of this chapter and shall be subject to an administrative penalty.
(2) Violations and penalties shall be determined by the Commonwealth agency that regulates the facility. The Commonwealth agency may issue an order assessing a civil penalty of not more than $2,500. An order issued under this paragraph is subject to due process as set forth in 2 Pa.C.S. §§ 501--508 and 551--555 (relating to practice and procedure of Commonwealth agencies; and practice and procedure of local agencies) and judicial review in 2 Pa.C.S. §§ 701--704 and 751--754 (relating to judicial review of Commonwealth agency action; and judicial review of local agency action).
(3) Representatives of the Departments of Aging, Health and Welfare who suspect violations of this section will report them to the appropriate Commonwealth licensing agency under procedures developed by the Department in consultation with the licensing agency. The report shall be made in writing and include, at a minimum, the facility, the administrator, owner, operator or designee suspected of committing the violation and a description of the suspected violation.
(b) Criminal. An administrator or a designee or facility owner who intentionally or willfully fails to comply, or obstructs compliance, with §§ 15.151--15.157 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 to report a case of suspected abuse under §§ 15.151--15.157 and 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 refusal to complete all reporting requirements, the agency shall notify the police within 72 hours.
§ 15.159. 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 § 15.161. Waivers.
(a) The Department may, at its discretion and for justifiable reason, grant exceptions to and departures from this chapter to an area agency on aging when the area agency on aging can, by clear and convincing evidence, demonstrate that compliance would cause an unreasonable and undue hardship upon the area agency on aging and that an exception would not impair the health, safety or welfare of older adults or otherwise compromise the intent of this chapter. The Department cannot, however, waive statutory requirements in the act.
(b) A waiver request shall be made in writing to the Secretary. A request shall specifically identify and explain the burden created by the requirement for which the exception is being sought, the alternative method for fulfilling the basic intent of the requirement and evidence of the steps to be taken to assure that the health, safety and welfare of older adults will not be compromised.
(c) An exception granted under this chapter may be revoked by the Department at its discretion for a justifiable reason. Notice of revocation will be in writing and will include the reason for the action of the Department and a specific date upon which the exception will be terminated.
(d) In revoking an exception, the Department will provide for a reasonable time between the date of written notice of revocation and the date of termination of an exception for the agency to come into compliance with the applicable regulations.
(e) If an agency wishes to request a reconsideration of a denial or revocation of an exception, it shall do so in writing to the Secretary within 15 days of receipt of the adverse notification.
[Pa.B. Doc. No. 02-887. Filed for public inspection May 17, 2002, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
