1. Prepare for Increased Scrutiny of Allegations of Abuse & Neglect
PACAH 2015 Spring Conference April 30, 2015
Prepare for Increased Scrutiny of Allegations of Abuse & Neglect
Paula G. Sanders, Esquire
Cynthia A. Haines, Esquire

2. Overview Adult Protective Services Act
Review definitions of abuse and neglect
Examine reporting requirements imposed by Department of Health (DOH), Act 13 and the Department of Aging (PDA), local Area Agencies of Aging (AAAs)
Elder Justice Act
Criminal Neglect of Care-Dependent Persons
Practical Considerations

3. Increased Focus
Creation of special team within Office of Attorney General, Elder Abuse Unit
>5,000 referrals last year
Potential civil and criminal liability
New reporting obligations

4. Child Protective Services Law (CPSL) 23 Pa.C.S. §§ 6301-6385
Requires mandated reporters report suspected child abuse to Department of Human Services (DHS, formerly Department of Public Welfare)
Requires certain persons providing care to children to obtain specific background clearances
Requires licensed health care professionals and certain persons who have direct contact with children to obtain training regarding reporting requirements

5. Duty to Report Suspected Child Abuse
Must report if reasonable cause to suspect child is victim of child abuse under the following circumstances:
Mandated reporter comes into contact with child in the course of employment, occupation and practice of a profession or through a regularly scheduled program, activity or service
Mandated reporter is directly responsible for the care, supervision, guidance or training of child, or is affiliated with an agency, institution, organization, school, regularly established church or religious organization or other entity that is directly responsible for the care, supervision, guidance or training of child

6. CPSL: Duty to Report:
A person makes a specific disclosure to the mandated reporter that an identifiable child is the victim of child abuse
An individual 14 years of age or older makes a specific disclosure to the mandated reporter that the individual has committed child abuse

7. CPSL: How to Report Oral report using toll-free hotline (800-932-0313)
Written report using electronic system established by DHS
Must follow oral report with a written report to DHS or the county agency assigned to the case within 48 hours of making oral report

8. CPSL Penalties for Failure to Report
Third degree felony if:
Person or official willfully fails to report
Child abuse constitutes a felony of the first degree or higher, and
Person or official has direct knowledge of the nature of the abuse
Otherwise, willful failure to report is second degree misdemeanor
Continuing failure to report is first degree misdemeanor
A second or subsequent offense is either a second or third degree felony, depending on severity of the abuse

9. Adult Protective Services, Act 70 of 2010 (APSA)
Enacted to provide protective services to adults between 18 and 59 years of age who have a physical or mental impairment that substantially limits one or more major life activities
Administered by Department of Human Services (DHS)
Similar to the Older Adult Protective Services Act (OAPSA) (60 and older)
OAPSA administered by Department of Aging

10. Current Implementation
Outreach and Education
Bids received and contract awarded to Liberty Healthcare Resources, Inc.
Regulations in development and will be posted for public comment
Implementation of Statewide Abuse Hotline

11. DHS Memo: Mandatory Reporting Requirements (4/4/2015)
Triggers upon
observation of suspected abuse, neglect, exploitation or abandonment or
Reasonable cause to suspect
First, assist recipient and assure health & safety
Second, follow reporting requirements

12. APSA Reporting Procedures
Immediate oral report to Protective Services Hotline
Hotline call referred to APS agency—Liberty Healthcare Corporation
Within 48 hours, make written report to Liberty Healthcare ( or fax)
Nursing facility may use PB-22 form

13. Additional APSA Reporting Requirements
Reasonable cause to suspect sexual abuse, serious injury, serious bodily injury or suspicious death
Immediate oral report to law enforcement
Immediate oral report to DHS at , option #3
Joint written report within 48 hours to law enforcement
NHA/employee of nursing home may use PB-22 form

14. APS Investigative Timeline
Priority reports require immediate attention
Adult reported to need protective services is at imminent risk of death or serious injury or serious bodily injury
Investigation must begin within 24 hours
Non-priority report does not require immediate attention
Investigation must begin within 72 hours

15. What Is An APS Agency Required To Do?
Investigate allegations
Determine if abuse, neglect, exploitation or abandonment has occurred
Provide services to adults who voluntarily consent
Cooperatively develop a service plan with agency staff, the adult, the adult’s guardian and other family and advocates when appropriate
Provide services in the least restrictive environment and the most integrated setting

16. What Is An APS Agency Required To Do?
Ensure services do not supplant any public or private entitlements or resources
Ensure protective services are short-term. Seek court orders if denied access to the alleged victim or records related to the alleged victim
Seek judicial relief to require a facility to protect the safety of an adult when the licensed program is believed to continue to jeopardize the safety of the adult

17. “No Need” Determination
No need for protective services when the person reported to be in need of protective services meets either of the following criteria:
Has the capacity to perform or obtain, without help, services necessary to maintain physical or mental health
Is not at imminent risk or danger to his person or property

18. APSA Definitions: Abuse
Infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish
Willful deprivation by a caregiver of goods or services which are necessary to maintain physical or mental health
Sexual harassment or rape

19. APSA Definitions: Neglect & Abandonment
Neglect: Failure to provide for oneself or the failure of a caregiver to provide goods, care or services essential to avoid clear and serious threat to the physical or mental health of an adult
Abandonment: Desertion of an adult by a caregiver

20. APSA Definitions: Exploitation
An act or course of conduct by a caregiver or other person against an adult or an adult’s resources, without the informed consent of the adult or with consent obtained through misrepresentation, coercion or threats of force, that results in monetary, personal or other benefit, gain or profit for the perpetrators or monetary or personal loss to the adult

21. Who Is Eligible To Receive Act 70 Protective Services?
A resident of the Commonwealth
An adult between 18 and 59 years of age with a physical or mental impairment that substantially limits one or more major life activities
An adult who needs the assistance of another person to obtain protective services in order to prevent imminent risk to person or property

22. Who Is A Mandated Reporter Under APSA?
An employee or administrator of a facility
Assisted Living Facility/Personal Care Home
Domiciliary Care Home
Home Health Care Agency
Intermediate Care Facility for Individuals with Intellectual Disabilities
Nursing Home
Older Adult Daily Living Center
Residential Treatment Facility

23. APSA Mandated Reporter
An organization or group of people that use public funds and is paid, in part, to provide care and support to adults in a licensed or unlicensed setting

24. Nursing Home Abuse Definitions
Federal: Willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish (42 CFR (b), )
DOH: Infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm or pain or mental anguish, or deprivation by an individual, including a caretaker, of goods or services necessary to attain or maintain physical, mental & psychosocial well-being (28 Pa. Code 201.3)

25. Act 13 Abuse Definition
Occurrence of one or more of the following acts: (1) infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish; (2) willful deprivation by a caretaker of goods or services necessary to maintain physical or mental health; (3) sexual harassment; and/or (4) sexual abuse (35 P.S. § ; 15 Pa Code § (Act 13))

26. Reporting Abuse Report to DOH and complete PB-22
Verbal notification to local AAA and PDA
Report Act 13 abuse events immediately to AAA and then complete PB22 within 48 hours
Note some events may be DOH reportable and not PDA reportable, and vice versa

27. Reporting Abuse
Immediate verbal report to law enforcement and PDA for:
Sexual abuse
Serious bodily injury
Serious physical injury
Suspicious death

28. Neglect Definitions for Nursing Homes
Federal: Failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness (42 CFR (c), )
DOH: Deprivation by a caretaker of goods or services which are necessary to maintain physical or mental health (28 Pa. Code 201.3)
OAPSA: Willful deprivation by a caretaker of goods of services which are necessary to maintain physical or mental health (Act 13 of 1997)

29. Reporting Neglect
All reports under for neglect require a PB22 and should be reported to DOH and local AAA verbal notification and follow up with written report –PB-22
Reportable to PDA/Law enforcement if serious physical or bodily harm

30. Reporting Suspicion of a Crime in Long Term Care Facilities
Elder Justice Act (EJA) applies to facilities receiving at least $10,000 in federal reimbursement
Covered Individuals are required to report to the state survey agency and local law enforcement any reasonable suspicion of a crime against any individual who is a resident of, or receiving care in nursing care facility
Failure to report: civil money penalties of not more than $2000,000; exclusion; if exacerbation- up to $300,000

31. EJA Reports
Serious bodily injury – within 2 hours. Required to report the suspicion immediately, but no later than two (2) hours after forming the suspicion
No serious bodily injury – within 24 hours. Required to report the suspicion no later than twenty four (24) hours after forming the suspicion

32. Criminal Neglect of a Care-Dependent Person, 18 Pa.C.S.A. Section 2713
Who can be prosecuted? Caretakers, including owner, operator, manager or employee of a
Nursing home
Personal care home
Community residential facility
Adult daily living center
Home health agency
Home health service provider

33. Caretakers Do Not Have To Be Individuals
Caretakers also include:
Corporations
Partnerships
Unincorporated associations or
Any other business entity

34. Mental Status of Accused -- Criminal Neglect
Knowing
Intentionally OR
Recklessly
A conscious disregard of a substantial and unjustifiable risk that bodily injury will result, and
A gross deviation from the standard of conduct that a reasonable person would observe in the actors situation

35. Injury for Criminal Neglect
Causing
Bodily injury or
Impairment of physical condition or
Substantial pain
Serious bodily injury
Serious permanent disfigurement or
Protracted loss or impairment of the function of any bodily member or organ

36. Causation for Criminal Neglect
By failing to provide the treatment, care, goods or services that result in injury under 2713(a)(1)
By failing to provide correctly the physical restraint, chemical restraint, medication or isolation that result in an injury under 2713(a)(1)

37. What Is The Duty Owed? To preserve the Health Safety or Welfare
Of a Care-Dependent Person to whom caretaker is responsible to provide care

38. Care-Dependent Person for Criminal Neglect
Any adult who
Due to a physical or cognitive disability or impairment
Requires assistance to meet his/her needs for
Food
Shelter
Clothing
Personal care or
Health care

39. Penalty For Conviction
Bodily injury – misdemeanor in the 1st degree
Maximum punishment
5 years and $10,000
Serious Bodily Injury – Felony in the 1st degree
20 years and $25,000

40. Statutory Defenses for Criminal Neglect
Compliance with a living will
Compliance with written or signed and written instructions, executed when a person is competent
Compliance with person’s
Agent
Health Care Agent
Compliance with a DNR

41. Investigations Major sources of information The victim and family
State, county and other investigative agencies
The facility

42. Facility Responsibility
Assessment
Plan of Action
Monitoring
Reassessment

43. Considerations Criminal v civil Criminal statute
Knowingly, intentional or reckless
Civil standard
Negligence

44. Considerations What is the balance?
Need to look at all the circumstances regarding the injury
Could require looking back over the long course of medical treatment or lack of medical treatment
Medical records – not documented, NOT done

45. Government Observes Facility appearance Resident appearance
Staff demeanor
Facility staffing

46. Preparation & Training
Documentation is crucial
How do you write a PB-22?
Facility liability for rogue employee
Preventable serious adverse events (PSAE) implications
Conducting investigations
Know how to respond to investigations

47. Questions??? Post & Schell, PC 17 North 2nd Street, 12th Floor
Paula G. Sanders, Esquire
Cynthia A. Haines, Esquire
Post & Schell, PC
17 North 2nd Street, 12th Floor
Harrisburg, PA