PRINTER'S NO. 3314
No. 2360 Session of 2004
INTRODUCED BY VEON, EACHUS, THOMAS, LaGROTTA, KOTIK, LESCOVITZ,
TANGRETTI, SURRA, HARHAI, BELARDI, MARKOSEK, GEIST, FABRIZIO,
GERGELY, WOJNAROSKI, SOLOBAY, GRUCELA, DeWEESE, MUNDY,
HORSEY, PETRARCA, STABACK, GEORGE, BAKER, LEDERER, BEBKO-
JONES, WALKO, BELFANTI, ROONEY, FREEMAN, LAUGHLIN, ROEBUCK,
TIGUE AND DALEY, FEBRUARY 10, 2004
REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES,
FEBRUARY 10, 2004
AN ACT
1 Amending the act of November 6, 1987 (P.L.381, No.79), entitled
2 "An act relating to the protection of the abused, neglected,
3 exploited or abandoned elderly; establishing a uniform
4 Statewide reporting and investigative system for suspected
5 abuse, neglect, exploitation or abandonment of the elderly;
6 providing protective services; providing for funding; and
7 making repeals," further providing for criminal history for
8 employees; establishing the State Board of Long-Term Care
9 Employment Review in the Bureau of Professional and
10 Occupational Affairs; and making a related repeal.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Chapter 5 of the act of November 6, 1987
14 (P.L.381, No.79), known as the Older Adults Protective Services
15 Act, is repealed.
16 Section 2. The act is amended by adding a chapter to read:
17 CHAPTER 5
18 CRIMINAL HISTORY FOR EMPLOYEES
19 Section 501. Definitions.
1 The following words and phrases when used in this chapter
2 shall have the meanings given to them in this section unless the
3 context clearly indicates otherwise:
4 "Applicant." An individual who submits an application, which
5 is being considered for employment, to a facility.
6 "Board." The State Board of Long-Term Care Employment Review
7 established in section 504.
8 "Certificate." A certificate of employment provided by the
9 State Board of Long-Term Care Employment Review under section
10 504 to an individual who has been precluded from employment by a
11 facility under section 503.
12 "Proof of release from incarceration." Reliable information
13 concerning the completion of the individual's incarceration.
14 "State Police." The Pennsylvania State Police.
15 Section 502. Information relating to prospective facility
16 personnel.
17 (a) General rule.--A facility shall require all applicants
18 to submit with their applications, and shall require all
19 administrators and any operators who have or may have direct
20 contact with a recipient to submit, the following information
21 obtained within the preceding one-year period:
22 (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal
23 history record information), a report of criminal history
24 record information from the State Police or a statement from
25 the State Police that central repository of the State Police
26 contains no such information relating to that individual. The
27 criminal history record information shall be limited to that
28 which is disseminated pursuant to 18 Pa.C.S. § 9121(b)(2)
29 (relating to general regulations).
30 (2) Where the applicant is not and for the two years
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1 immediately preceding the date of application has not been a
2 resident of this Commonwealth, a report of Federal criminal
3 history record information pursuant to the Federal Bureau of
4 Investigation's appropriation under the Departments of State,
5 Justice, and Commerce, the Judiciary, and Related Agencies
6 Appropriation Act, 1973 (Public Law 92-544, 86 Stat. 1109).
7 The applicant must submit the report with the applicant's
8 application for employment. The department shall be the
9 intermediary for the purposes of this paragraph. For the
10 purposes of this paragraph, the applicant shall submit a full
11 set of fingerprints to the State Police, which shall forward
12 them to the Federal Bureau of Investigation for a national
13 criminal history record check. The information obtained from
14 the criminal record check shall be used by the department to
15 determine the applicant's eligibility. The determination
16 shall be submitted to the administrator by the applicant
17 prior to commencing employment. The administrator shall
18 insure confidentiality of the information.
19 (b) Fees.--The State Police may charge the applicant a fee
20 of not more than $10 to conduct the criminal record check
21 required under subsection (a)(1). The State Police may charge a
22 fee of not more than the established charge by the Federal
23 Bureau of Investigation for the criminal history record check
24 required under subsection (a)(2). The State Police shall develop
25 a billing system to allow facilities and administrators to
26 assume responsibility for the fee under this subsection. The
27 State Police shall allow facilities or administrators to
28 establish an account for quarterly payment.
29 Section 503. Grounds for denying employment.
30 (a) Lifetime disqualification.--Except as provided in
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1 sections 504 and 507, a facility may not hire an applicant or
2 retain an employee required to submit information pursuant to
3 section 502(a) if the applicant's or employee's criminal history
4 record information indicates the applicant or employee has been
5 convicted of any of the following offenses:
6 (1) An offense under one or more of the following
7 provisions of 18 Pa.C.S. (relating to crimes and offenses):
8 Chapter 25 (relating to criminal homicide).
9 Section 2713 (relating to neglect of care-dependent
10 person).
11 Section 2901 (relating to kidnapping).
12 Section 3121 (relating to rape).
13 Section 3122.1 (relating to statutory sexual
14 assault).
15 Section 3123 (relating to involuntary deviate sexual
16 intercourse).
17 Section 3124.1 (relating to sexual assault).
18 Section 3124.2 (relating to institutional sexual
19 assault).
20 Section 3125 (relating to aggravated indecent
21 assault).
22 Section 3126 (relating to indecent assault).
23 Section 4302 (relating to incest).
24 Section 4303 (relating to concealing death of child).
25 Section 6312 (relating to sexual abuse of children).
26 (2) A Federal or out-of-State offense or offenses
27 similar in nature to those crimes listed in paragraph (1).
28 (b) Ten-year disqualifications.--Except as provided in
29 sections 504 and 507, a facility may not hire an applicant or
30 retain an employee required to submit information pursuant to
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1 section 502(a) if the applicant's or employee's criminal history
2 record information indicates the applicant or employee has been
3 convicted or released from incarceration, whichever is later,
4 within ten years immediately preceding the date of the report
5 required by section 502(a) of any of the following offenses:
6 (1) An offense designated as a felony under the act of
7 April 14, 1972 (P.L.233, No.64), known as The Controlled
8 Substance, Drug, Device and Cosmetic Act.
9 (2) An offense under one or more of the following
10 provisions of 18 Pa.C.S.:
11 Section 2702 (relating to aggravated assault).
12 Section 2902 (relating to unlawful restraint).
13 Section 3127 (relating to indecent exposure).
14 Section 3301 (relating to arson and related
15 offenses).
16 Section 3502 (relating to burglary).
17 Section 3701 (relating to robbery).
18 A felony offense under Chapter 39 (relating to theft
19 and related offenses).
20 Section 4101 (relating to forgery).
21 Section 4114 (relating to securing execution of
22 documents by deception).
23 Section 4952 (relating to intimidation of witnesses
24 or victims).
25 Section 4953 (relating to retaliation against
26 witness, victim or party).
27 A felony offense under section 5902(b) (relating to
28 prostitution and related offenses).
29 Section 5903(c) or (d) (relating to obscene and other
30 sexual materials and performances).
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1 (3) Two or more misdemeanors under the following
2 provisions of 18 Pa.C.S.:
3 Section 3921 (relating to theft by unlawful taking or
4 disposition).
5 Section 3922 (relating to theft by deception).
6 Section 3923 (relating to theft by extortion).
7 Section 3924 (relating to theft of property lost,
8 mislaid, or delivered by mistake).
9 Section 3925 (relating to receiving stolen property).
10 Section 3927 (relating to theft by failure to make
11 required disposition of funds received).
12 Section 3929 (relating to retail theft).
13 (4) A Federal or out-of-State offense or offenses
14 similar in nature to those crimes listed under paragraphs
15 (1), (2) and (3).
16 (c) Use of information.--Whenever a facility is in receipt
17 of information which is part of an individual's criminal history
18 record information file and where the individual is not barred
19 from employment under this act, the facility may use felony and
20 misdemeanor conviction for the purposes of deciding whether or
21 not to hire the applicant only in accordance with 18 Pa.C.S. §
22 9125 (relating to use of records for employment) and shall
23 provide the applicant notice regarding a decision not to hire as
24 provided in 18 Pa.C.S. § 9125(c).
25 Section 504. Certificate of employability.
26 (a) General rule.--An individual who would otherwise be
27 precluded from employment by a facility under section 503(a) or
28 (b) may apply to the board for a certificate of employment. A
29 certificate of employment granted by the board is applicable for
30 any facility subject to this act.
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1 (b) Board established.--
2 (1) The State Board of Long-Term Care Employment Review
3 is hereby established in the Bureau of Professional and
4 Occupational Affairs within the Department of State. The
5 board shall consist of the following members:
6 (i) The Commissioner of Professional and
7 Occupational Affairs.
8 (ii) Three members appointed by the Governor, each
9 chosen upon the recommendation of the Secretary of Aging,
10 the Secretary of Health and the Secretary of Public
11 Welfare, which members shall have a background in long-
12 term care.
13 (iii) Five members appointed in the following
14 manner:
15 (A) One member appointed by the President pro
16 tempore of the Senate.
17 (B) One member appointed by the Minority Leader
18 of the Senate.
19 (C) One member appointed by the Speaker of the
20 House of Representatives.
21 (D) One member appointed by the Minority Leader
22 of the House of Representatives.
23 (E) One member appointed by the Governor.
24 (2) Members appointed by the legislative officers shall
25 include:
26 (i) An individual affiliated with a union that
27 represents employees of facilities.
28 (ii) An individual affiliated with a facility or an
29 organization that represents facilities, such as a trade
30 association.
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1 (iii) A criminologist.
2 (iv) An individual who is a member in good standing
3 of the Pennsylvania Bar.
4 (3) The member appointed by the Governor must be an
5 ombudsman or other advocate for care-dependent individuals.
6 (c) Board organization.--
7 (1) The terms of the members of the board shall be six
8 years or until a successor has been appointed and qualified
9 but not longer than six months beyond the six-year period. In
10 the event that any board member dies or resigns or otherwise
11 becomes disqualified during a term, a successor shall be
12 appointed in the same way and with the same qualifications
13 and shall hold office for the unexpired term. No member shall
14 be eligible for appointment to serve more than two
15 consecutive terms.
16 (2) A majority of the members of the board serving in
17 accordance with law shall constitute a quorum. A member may
18 not be counted as part of a quorum or vote on any issue,
19 unless the member is physically in attendance at the meeting.
20 (3) The board shall select annually a chairperson from
21 among its members. The board shall select an executive
22 secretary who, with the approval of the Commissioner of
23 Professional and Occupational Affairs, need not be a member
24 of the board.
25 (4) Each member of the board, except the commissioner,
26 shall receive $60 per diem when actually attending to the
27 work of the board. Members shall also receive the amount of
28 reasonable traveling, hotel and other necessary expenses
29 incurred in the performance of their duties in accordance
30 with Commonwealth regulations.
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1 (5) A member of the board who fails to attend three
2 consecutive meetings shall forfeit the member's seat unless
3 the commissioner, upon written request from the member, finds
4 that the member should be excused from a meeting because of
5 illness, death of a family member or other good cause.
6 (6) The board shall meet at least once every two months
7 and at such additional times as may be necessary to conduct
8 the business of the board.
9 (7) The board shall have the right and duty to establish
10 rules and regulations for the review of applications for a
11 certificate consistent with the guidelines established under
12 this section. Copies of the rules and regulations shall be
13 available for distribution to the public.
14 (d) Hearing.--The board shall conduct a hearing on any
15 application filed by an individual who would otherwise be
16 precluded from employment under section 503 and determine
17 whether the individual demonstrates rehabilitation or whether
18 the nature of the individual's offense is unrelated to the
19 individual's suitability for employment in a facility.
20 (e) Factors.--
21 (1) In making a determination to issue a certificate,
22 the board shall consider the following factors:
23 (i) Proof of release from incarceration and the
24 amount of time that has elapsed since the last
25 conviction.
26 (ii) The length and stability of the individual's
27 employment history, particularly in the field in which
28 the individual is seeking work.
29 (iii) The stability of the individual's family.
30 (iv) The circumstances of the crime for which the
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1 individual was convicted and the nature of the
2 convictions.
3 (v) If the crime was related to drug use, whether
4 the individual has undergone drug treatment and is
5 maintaining recovery and the length of time the
6 individual has been in recovery.
7 (vi) The individual's age.
8 (vii) Other evidence of post-conviction
9 rehabilitation, such as history of community service and
10 character references.
11 (viii) Other information as the board deems
12 appropriate.
13 (2) In addition to evidence submitted by the individual
14 applying for a certificate, the board may consider testimony,
15 letters or recommendations from:
16 (i) Licensed professionals.
17 (ii) Members of the community.
18 (iii) Public officials.
19 (iv) Former employers.
20 (v) An employer wishing to hire the individual.
21 (vi) Others with knowledge of the individual or
22 other evidence relevant to the application.
23 (3) Paragraph (2) is not an exclusive list of persons
24 from whom submissions can be received, nor are such
25 submissions required.
26 (f) Standard of proof.--The individual applying for a
27 certificate must prove the individual's fitness to work in a
28 facility by a preponderance of the evidence.
29 (g) Determinations by board.--The board must resolve an
30 application for a certificate within 30 days of a hearing,
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1 unless the individual applying for the certificate requests
2 additional time to present evidence, in which case the board
3 shall resolve the request within 30 days of the last submission.
4 The issuance of a certificate permits an individual to seek and
5 possibly obtain employment within a facility subject to this
6 act, but does not guarantee that a facility will offer a
7 position of employment to the individual. Each determination
8 made by the board shall be communicated to the department.
9 (h) Immunity.--An administrator or a facility shall not be
10 held civilly liable for any action directly related to good
11 faith compliance with this section.
12 (i) Fees.--No application for a certificate shall be
13 considered unless accompanied by a fee of no more than $25. All
14 fees imposed in accordance with this act shall be paid into the
15 Professional Licensure Augmentation Account.
16 Section 505. Regulations.
17 Except for rules and regulations required under section 504,
18 the Department of Aging, in consultation with the Department of
19 Health and the Department of Public Welfare, shall promulgate
20 the regulations necessary to carry out this chapter.
21 Section 506. Violations.
22 (a) Administrative.--
23 (1) An administrator who intentionally or willfully
24 fails to comply or obstructs compliance with this chapter
25 commits a violation of this chapter and shall be subject to
26 an administrative penalty under paragraph (3).
27 (2) A facility owner that intentionally or willfully
28 fails to comply or obstructs compliance with this chapter
29 commits a violation of this chapter and shall be subject to
30 an administrative penalty under paragraph (3).
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1 (3) The Commonwealth agency or Commonwealth agencies
2 which license the facility have jurisdiction to determine
3 violations of this chapter and may issue an order assessing a
4 civil penalty of not more than $2,500. An order under this
5 paragraph is subject to 2 Pa.C.S. Ch. 5 Subch. A (relating to
6 practice and procedure of Commonwealth agencies) and Ch. 7
7 Subch. A (relating to judicial review of Commonwealth agency
8 action).
9 (b) Criminal.--
10 (1) An administrator who intentionally or willfully
11 fails to comply or obstructs compliance with this chapter
12 commits a misdemeanor of the third degree and shall, upon
13 conviction, be sentenced to pay a fine of $2,500 or to
14 imprisonment for not more than one year, or both.
15 (2) A facility owner that intentionally or willfully
16 fails to comply or obstructs compliance with this chapter
17 commits a misdemeanor of the third degree and shall, upon
18 conviction, be sentenced to pay a fine of $2,500 or to
19 imprisonment for not more than one year, or both.
20 Section 507. Provisional employees for limited periods.
21 Notwithstanding section 502, administrators may employ
22 applicants on a provisional basis for a single period not to
23 exceed 30 days or, for applicants under section 502(a)(2), a
24 period of 90 days, if all of the following conditions are met:
25 (1) The applicant has applied for the information
26 required under section 502(a) and the applicant provides a
27 copy of the appropriate completed request forms to the
28 administrator.
29 (2) The administrator has no knowledge of information
30 pertaining to the applicant which would disqualify him from
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1 employment pursuant to section 503, subject to 18 Pa.C.S. §
2 4911 (relating to tampering with public records or
3 information).
4 (3) The applicant swears or affirms in writing that he
5 is not disqualified from employment under section 503.
6 (4) If the information obtained under section 502(a)
7 reveals that the applicant is disqualified from employment
8 under section 503, and the applicant seeks to apply for a
9 certificate pursuant to section 504, the applicant shall be
10 placed on suspension until such time as the certificate is
11 issued.
12 (5) If an individual fails to file an application for a
13 certificate within 60 days of being suspended by a facility
14 receiving the information under section 502(a), the
15 individual shall be dismissed by the administrator of the
16 facility.
17 (6) If the board denies an application for a
18 certificate, the individual shall be immediately dismissed by
19 the administrator of the facility.
20 (7) At no time may an individual be dismissed from
21 employment while an application is pending before the board
22 and before a final determination of that application is made
23 by the board.
24 (8) After an individual is granted a certificate under
25 section 504, a facility shall not be permitted to use the
26 criminal background information obtained under section 502(a)
27 as the sole reason for a dismissal.
28 (9) If the board issues a certificate, an individual may
29 work in facilities subject to this act so long as the
30 individual is not convicted of a subsequent crime specified
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1 in section 503(a) or (b).
2 (10) If an application for a certificate is denied, an
3 individual may file another application for a certificate one
4 year from the date of the board's written denial statement.
5 (11) The department shall develop guidelines regarding
6 the supervision of applicants issued a certificate. For a
7 home health care agency, supervision shall include random
8 direct supervision by an employee who has been employed by
9 the facility for a period of one year.
10 Section 508. State Police.
11 No later than one year following the effective date of this
12 section, the State Police and the department shall report to the
13 Aging and Youth Committee of the Senate and the Aging and Older
14 Adult Services Committee of the House of Representatives with
15 their findings and recommendations regarding the implementation
16 of this chapter.
17 Section 509. Applicability to current employees.
18 An employee who has not provided the facility where the
19 employee is employed with the information described in section
20 502(a) since July 1, 1998, shall comply with section 502(a)
21 within one year of the effective date of this section.
22 Section 3. This act shall take effect as follows:
23 (1) The addition of section 504 of the act shall take
24 effect in 60 days.
25 (2) The remainder of this act shall take effect
26 immediately.
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