COMMONWEALTH OF PENNSYLVANIA HOUSE OF REPRESENTATIVES
HOUSE AGING & OLDER ADULT SERVICES COMMITTEE PUBLIC HEARING
STATE CAPITOL HARRISBURG, PA
RYAN OFFICE BUILDING ROOM 2 05
THURSDAY, SEPTEMBER 6, 2 018 9:30 A.M.
PRESENTATION ON HOUSE BILL 2549 TO AMEND THE OLDER ADULTS PROTECTIVE SERVICES ACT OF 1987
BEFORE: HONORABLE TIM HENNESSEY, MAJORITY CHAIRMAN HONORABLE STEVE SAMUELSON, MINORITY CHAIRMAN HONORABLE CRIS DUSH HONORABLE DAWN WETZEL KEEFER HONORABLE ERIC R. NELSON HONORABLE PAUL SCHEMEL HONORABLE WILL TALLMAN HONORABLE PAMELA A. DELISSIO
COMMITTEE STAFF PRESENT: ERIN RAUB REPUBLICAN EXECUTIVE DIRECTOR MICHELLE WHITMYER REPUBLICAN LEGISLATIVE ADMINISTRATIVE ASSISTANT JILL VECCHIO SENIOR LEGAL COUNSEL AND CAUCUS ETHICS OFFICER
LAUREN ROONEY DEMOCRATIC EXECUTIVE DIRECTOR CHUCK MILLER DEMOCRATIC SENIOR RESEARCH ANALYST 2
INDEX
TESTIFIERS
~k ~k ~k
NAME PAGE
TERESA OSBORNE SECRETARY, DEPARTMENT OF AGING...... 6
REBECCA MAY-COLE EXECUTIVE DIRECTOR, PENNSYLVANIA ASSOCIATION OF AREA AGENCIES ON AGING (P4A)...... 22
FRED SHRIMP DIRECTOR, STEP OFFICE OF AGING (LYCOMING/ CLINTON COUNTY AAA) CHAIRPERSON, P4A PROTECTIVE SERVICES/ GUARDIANSHIP COMMITTEE...... 31
DESIREE HUNG, ESQ. ACTING GOVERNMENT RELATIONS MANAGER, AARP PENNSYLVANIA ...... 4 0
DIANE MENIO EXECUTIVE DIRECTOR, CARIE...... 4 4
JANET GINZBERG SENIOR STAFF ATTORNEY, COMMUNITY LEGAL SERVICES..... 55
SUBMITTED WRITTEN TESTIMONY
* * *
(See submitted written testimony and handouts online.) 1 3
1 P R O C E E D I N G S
2 * * *
3 MAJORITY CHAIRMAN HENNESSEY: Good morning
4 everyone. Welcome to the second day of hearings on House
5 Bill 2549, the House attempt to basically rewrite the Older
6 Adults Protective Services Act which was originally passed
7 by this legislature in 1987. This would be the first major
8 re-draft of the Act in its lifetime.
9 Before I get too far involved in this, I would
10 like to take a moment to note the passing of Ray Smith.
11 Ray was, I think, a 12-year employee of our House
12 Republican Communications Office and he was a specialist in
13 terms of dealing with newsletters and helping to draft
14 press releases, things like that, that are all part of the
15 daily business of legislative activity here in Harrisburg.
16 Ray had a heart attack about two weeks ago and passed away
17 very peacefully last evening surrounded by friends here in
18 Harrisburg Hospital. So please keep him in your thoughts
19 and prayers as you go through the day.
20 That being said, I will tell everyone we are on
21 PCN so please keep side comments to a minimum if you can,
22 and I'll try to do that as well.
23 I apologize for the temperature in the room.
24 Apparently there is a rule -- I said this yesterday -
25 anytime there is five or six legislators gathered in a 4
1 single room, the temperature has to go up a lot and they
2 forget to turn the air conditioner on to bring the
3 temperature back down to a tolerable level. We have called.
4 They are working on it so hopefully in a few minutes you
5 will start to see a decreased temperature in the room,
6 depending on the testimony, of course.
7 I'm sorry. I should introduce myself. My name
8 is Tim Hennessey. I'm the Republican Chair of the House
9 Aging and Older Adult Services Committee. My cohort, my
10 partner in crime so to speak, the Democratic Chair of the
11 Committee, Steve Samuelson, is on his way. He's been
12 delayed in traffic this morning, but he'll be here shortly.
13 Will, would you start the introductions please?
14 REPRESENTATIVE TALLMAN: Will Tallman, parts of
15 Adams and Cumberland.
16 REPRESENTATIVE DUSH: Cris Dush, 66th District,
17 parts of Indiana and Jefferson County.
18 REPRESENTATIVE DELISSIO: Pam DeLissio, the 194th,
19 parts of Philadelphia and Montgomery Counties.
20 MS. ROONEY: Good morning, I'm Lauren Rooney.
21 I'm the Democratic Executive Director of the Committee.
22 MR. MILLER: Good morning, it's Chuck Miller,
23 Democratic Research.
24 MS. RAUB: Erin Raub, Republican Executive
25 Director. 5
1 MAJORITY CHAIRMAN HENNESSEY: Also known as my
2 boss on the Committee. She's the Executive Director of the
3 Committee and she sort of provides us with direction and
4 keeps us informed of what needs to be done and what
5 legislative efforts need to be made in order to keep the
6 Commonwealth on track, so to speak.
7 So with that, our first testifier is -- We're
8 honored to have Secretary Teresa Osborne, the head of the
9 Department of Aging here in Pennsylvania. Secretary
10 Osborne, you've been in this position, I think, for three
11 years now, and so we're anxious to hear your comments on
12 our attempt to redo the Older Adults Protective Services
13 Act.
14 There will be, just for purposes of the people
15 watching on PCN, there will be people coming and going. We
16 have a couple of legislative committees actually holding
17 hearings this morning. The Committee of Labor and Industry
18 is holding a meeting as well and some of our members split
19 their time between both committees, so you may see an
20 influx of other legislators, and we'll introduce them as
21 they come in during the morning.
22 With that said, Madam Secretary, we're ready to
23 hear your comments. Hopefully, they're all going to be
24 very, very laudatory as far as the draft that we put
25 together, although I've taken a peek at your testimony. I 6
1 think you have some items that you want to bring to our
2 attention.
3 SECRETARY OSBORNE: Absolutely.
4 MAJORITY CHAIRMAN HENNESSEY: So proceed whenever
5 you're ready.
6 SECRETARY OSBORNE: Thank you, Mr. Chairman.
7 First and foremost, my sympathies to all who worked with
8 Ray Smith and his untimely passing and certainly will keep
9 him in thought and prayer as you just asked us to do. But
10 the opportunity for me to be here with you, Chairman, and I
11 known Chairman Samuelson is on his way, but to the members
12 of the House Aging Older Adult Services Committee and all
13 the guests that are gathered here this morning, good
14 morning.
15 While it is, indeed, always my honor to be before
16 this committee, considering today's topic is the Older
17 Adults Protective Services Act, I am particularly grateful
18 for the opportunity to present this testimony as protecting
19 older Pennsylvanians from all types of abuse, neglect, and
20 exploitation is a priority for the Wolf Administration.
21 Moreover, it's recognized since that date, Mr. Chairman,
22 that you just referenced, since November 6, 1987 when the
23 General Assembly first passed the Commonwealth's Older
24 Adults Protective Services Act, this House Committee on
25 Aging has an incredibly rich history of operating with 7
1 strong bipartisan leadership that's consistently focused on
2 major issues of importance to older Pennsylvanians and
3 their families and has continued a three decades-long
4 commitment to ensuring that Pennsylvania's Older Adult
5 Protective Services system remains victim-oriented and
6 grounded in an older adult's rights to self-determination.
7 As Secretary of the Pennsylvania Department of
8 Aging, it is my responsibility to uphold the provisions of
9 both the federal government's Older Americans Act, which
10 requires the Department to serve as a visible and effective
11 advocate for older Americans, and the Commonwealth's Older
12 Adults Protective Services Act which requires the
13 Department to maintain a statewide system of protective
14 services for the older adults who need them.
15 Of the duties entrusted to my care, this
16 particular responsibility to ensure that victims of elder
17 abuse have access to a coordinated community response that
18 adequately answers to and addresses their needs and
19 preserves their safety, dignity, and autonomy is paramount.
20 On a personal level, I share that it was 28 years
21 ago just last month that I was hired by my local Area
22 Agency on Aging in Lackawanna County as an agent care
23 manager, and I was assigned to the Protective Service Unit.
24 At that time, the Commonwealth's Older Adults Protective
25 Services Act was only two years old. While my personal 8
1 role in this protective services space advanced through the
2 years, where I served as a protective service supervisor,
3 an Area Agency on Aging Director, and County Director of
4 Human Services, despite those changes, several constant
5 variables were always present. This protective services
6 work was often challenging and emotionally taxing for the
7 older adults served as well as for myself and my fellow
8 protective service workers from across the 67 counties of
9 the Commonwealth of Pennsylvania.
10 This work has afforded me the opportunity to
11 uphold Pennsylvania's Protective Services Law which was
12 designed to promote the safety, independence and quality of
13 life for older Pennsylvanians who are either being
14 mistreated or who are in danger of mistreatment and who are
15 unable to protect themselves.
16 And with the duties now entrusted to me to lead
17 the state unit on Aging, it is my responsibility to work
18 with Pennsylvania's Aging Network which includes 52 local
19 area agencies on aging that cover the 67 counties of the
20 Commonwealth, and it is the Department's overall and my
21 professional obligation and personal passion to work with
22 every Area Agency on Aging as each agency administers the
23 provision of protective services under the law in its
24 particular planning and service area.
25 I strive to listen to the needs of our aging 9
1 network by meeting with the Protective Services Aging Care
2 managers and supervisors about their challenges, their
3 frustrations, and their successes; by engaging in open
4 dialogues with the Aging administrators about their current
5 needs, aggravations, and attainments; and by connecting
6 with the Department staff who are the ones responsible to
7 support me and my oversight of this incredible
8 responsibility to serve and protect older Pennsylvanians in
9 need of protective services. And it is through this
10 process that I and others realize that all of that effort
11 must delicately balance the need for protective services
12 with the older adult's right to self-determination.
13 Professionals who work in this space know that
14 while protective services needs of older adults vary
15 depending on unique circumstances of the case, there are
16 several constant factors whereby protective service
17 caseloads in Pennsylvania continue to increase as federal
18 and state funding has not kept up with this increase. With
19 gratitude, however, it is noted that the General Assembly
20 graciously supported the Wolf Administration's request for
21 additional protective services funds for the Aging Network
22 for this current fiscal year. It's also noted that
23 increased caseloads along with the complexity of in
24 particular financial exploitation cases requires us to
25 advocate for additional funding to implement the Older 10
1 Adults Protective Services Act as it currently stands. And
2 with respect, it's also noticed that we must ensure that we
3 account for supplemental funding that will be needed to
4 address any enhancements or revisions that the General
5 Assembly may desire to ultimately make to this act.
6 I very much appreciate the efforts that you,
7 Chairman Hennessey, and this committee have always taken in
8 consideration of any changes to the Act. This committee
9 has historically led the way to ensure that when needed,
10 amendments to the Act have been made to enhance
11 Pennsylvania's response to elder abuse. Such amendments
12 include, in particular, Act 169 of 1996, which pertains to
13 criminal history background checks, and Act 113 of 1997,
14 which pertains to mandatory abuse reporting.
15 With specific regard to Act 169 of 1996, it is
16 recognized that not all enhancements have been universally
17 supported and unchallenged. Specifically, I will refer to
18 December 30, 2015, the decision of the Commonwealth Court
19 and Peake v. Commonwealth which unanimously found that
20 Section 503a of the current Older Adults Protective
21 Services Act which imposed a lifetime prohibition on the
22 ability of individuals with particular convictions to be
23 employed in licensed nursing homes and other long-term care
24 facilities to be unconstitutional.
25 The Court ruled that the lifetime bans are not 11
1 substantially related, not substantially related, to the
2 purposes set forth in the Older Adults Protective Services
3 Act which is to provide for the detection and reduction,
4 correction or elimination of abuse, neglect, exploitation,
5 and abandonment, and to establish a program of protective
6 services for the older adults in need of them. Obviously,
7 it's imperative that a Peake fix is found.
8 To this end, though, there is no question that
9 protecting the elderly and the disabled who need long-term
10 services and supports is mutually shared. It is a mutually
11 shared interest in this Commonwealth. And while the
12 General Assembly may enact laws that restrict who may
13 provide these needed services and supports to them, the
14 Department believes that although the proposed legislation
15 does provide several important enhancements, due to
16 concerns with certain aspects of it, the Department of
17 Aging cannot currently support it.
18 In consideration of our limited time together
19 this morning, I will pivot to these main points of why that
20 support cannot be rendered today. These points are
21 maintaining victim-oriented values and principles,
22 reporting requirements, legal standing, and the structure
23 of the proposed employment bans and its waiver process.
24 For the past 31 years, Pennsylvania's Older
25 Adults Protective Services Act has stood as a model victim- 12
1 oriented law, a law that delicately balances the need to
2 take necessary steps to protect older adults in need of
3 protective services and to preserve that with their
4 inherent rights of choice, privacy, dignity, and self
5 determination. The department holds the rights of the older
6 adults in need of protective services with the utmost
7 primacy.
8 With respect to the proposed bill, this
9 legislation appears, it appears, to erode the current
10 rights and protections for the older adult victim during
11 the provision of protective services. For example, it
12 seems to require the Area Agencies on Aging can initiate
13 civil proceedings when law enforcement either defers or
14 does not pursue a criminal investigation or prosecution.
15 The department believes that we cannot make and cannot
16 carry out good policy about older adults who are the
17 victims of abuse unless we made a concerted effort to
18 include survivors of abuse in our work. A capacitated
19 older adult must have the right to consent to this action.
20 Not only does this proposed legislation appear to counter
21 the older adult's right to self-determination, it calls for
22 the Area Agencies on Aging to pursue civil or criminal
23 remedies for substantiated cases of abuse. Just as any
24 older American has the right to choose whether or not to
25 sue or to press charges against an individual who may or 13
1 may have not harmed them, an older Pennsylvanian also has
2 the right to determine if pursuing such remedies is right
3 for them.
4 Adding this requirement seemingly deviates from
5 the social services type model that the provision of
6 Protective Services and Pennsylvania is built upon, whereby
7 protective services workers focus on maximizing a
8 vulnerable older adult's independence and choice to the
9 extent possible based on that individual's capacity. Since
10 the Act's original passage, new types of facilities caring
11 for older adults have been created, but they have not yet
12 been codified under the Act's definition of a facility.
13 This bill does update the definition of facility to
14 include, in particular, the program of all-inclusive care
15 of the elderly, known as PACE, which in Pennsylvania is
16 called Living Independence for the Elderly, known as LIFE,
17 along with assisted-living residences.
18 This critical update will codify the mandatory
19 reporting requirement for staff in these licensed
20 facilities to report abuse. We are concerned, though, that
21 the proposed bill appears to require these mandatory
22 reporters to report financial exploitation and would
23 require financial service providers to report financial
24 exploitation to the Area Agency on Aging or to law
25 enforcement. 14
1 It is recognized without a doubt that experts
2 across the country have called elder financial exploitation
3 the crime of the 21st century, and developing effective
4 interventions has never been more important. Relatedly,
5 researchers tell us that older adults are attractive
6 targets as they often have assets and a regular source of
7 income. In addition, older adults may be especially
8 vulnerable due to isolation, cognitive decline, physical
9 disability, or chronic health conditions.
10 Experience tells us that elderly victims of
11 financial exploitation are often robbed of their resources,
12 their dignity, and their quality of life, often forever.
13 While pleased that this process for handling
14 financial exploitation is presented in the bill, the
15 Department is gravely concerned with our ability to ensure
16 that our Area Agencies on Aging have the capacity and the
17 resources to properly respond to the potential volume of
18 the reports of financial exploitation that would be
19 generated if financial exploitation is made a requirement
20 for mandatory reporters.
21 Reports of need for protective services have
22 increased from 2014-15 at 20,133 to 2016-17 of 28,633. And
23 of those reports in 2016-17, those 28,633, 28 percent of
24 them were financial exploitation. Financial exploitation
25 cases are typically more time consuming and costly for the 15
1 Area Agencies on Aging due to the amount of bank records
2 and other supporting documents that need to be gathered and
3 reviewed.
4 Consideration must be given to address the
5 responsibilities of the Department along with the staffing
6 and training realities of our aging network if we are
7 required to implement this provision in the proposed
8 legislation with this new mandatory reporting requirement.
9 Another concern in the realm of financial
10 exploitation is new standing. It is seemingly being given
11 to the financial service providers in court under this
12 legislation whereby it appears that a financial service
13 provider could go to court to obtain protective services
14 for an individual. Historically, this Act has given the
15 Department and its Area Agencies on Aging as the agents of
16 the Department under this Act the sole responsibility to
17 have standing in court for older adults who are reported to
18 be in need of protective services.
19 The provision of protective services for many and
20 varied reasons is sometimes met with resistance by an older
21 adult as during this process their personal life is
22 examined. Friends and relatives and other health care
23 professionals are questioned, and medical and financial
24 records are pored over, all in an effort to protect the
25 older adult. 16
1 While the Department and its network of Area
2 Agencies on Aging are indeed experts in the field of
3 protective services, additional help is needed from the
4 criminal justice professionals and the financial services
5 professionals to identify ways that we can enhance the
6 criminal justices system's capacity to respond to cases of
7 financial exploitation, to increase prosecution of elder
8 abuse cases, and to truly provide a pathway to elder
9 justice for Pennsylvania's seniors.
10 Far too often when law enforcement personnel or
11 prosecutors are presented with the situation from an Area
12 Agency on Aging where a perpetrator befriends an older
13 adult, borrows a large sum of money, and then does not
14 repay it, we need authorities to actually recognize this is
15 a crime rather than a consensual transaction.
16 The issues of elder abuse including financial
17 exploitation brings with it many challenges. Those
18 challenges are quite similar to those found in the areas of
19 child abuse, domestic violence, and sexual assault.
20 Moreover, the issue of elder abuse presents several rather
21 unique complexities surrounding the issues of capacity,
22 consent, and the need for long-term services and supports.
23 And without a doubt, we all recognize that elder abuse robs
24 our seniors of their safety, their health, and their
25 financial resources. And while we all agree that we need to 17
1 add more tools to the toolbox so to say, in order to
2 identify, prevent, and eliminate elder financial abuse when
3 it does occur, we strongly believe that the financial
4 service providers should not have standing in court in
5 order to order the provision of protective services under
6 the Commonwealth's Older Adults Protective Services Act.
7 Additionally, this bill states that a report to
8 the Department of Human Services HCSIS Incident Management
9 Program is sufficient for facilities to use as mandatory
10 reporting. Please know that this causes great concern for
11 the Department and its aging network as we are responsible
12 to receive reports of need for protective services at all
13 times, and we and they do not have access to HCSIS, which
14 is a tool used by our sister state agency at the Department
15 of Human Services. As proposed, the required use of HCSIS
16 would be a costly extra step and could potentially delay
17 the provision of protective services.
18 As referenced earlier, since the Commonwealth
19 Court's decision in Peake, the Department has advocated to
20 reinstate an employment process that protects care-
21 dependent persons from individuals who may do them harm.
22 With all respect to Peake, we recognize that the court gave
23 specific guidance on what the Commonwealth's prior
24 employment ban process lacked; it lacked consideration for
25 the offense an individual committed along with evidence of 18
1 their rehabilitation.
2 We believe that the remedy to this issue is
3 conveyed in both this House Bill and in Senate Bill 899
4 through a waiver process. A waiver request would be
5 considered by the Department to waive an employment ban
6 with an individual with a ban-qualifying offense. They
7 submit information showing that they have been successfully
8 rehabilitated and would not be a threat to care-dependent
9 persons.
10 House Bill 2549, however, does not currently
11 provide for the Department to review the relation of the
12 ban-qualifying offense to the job the individual is
13 seeking. We believe this is an important component to any
14 waiver process as it provides appropriate context for the
15 reviewers to make a proper decision. Moreover, the
16 Department is concerned that this bill starts the
17 employment ban at the date of conviction. The department
18 would prefer that the structure of the employment
19 protections mirror the employment language included in
20 Senate Bill 899 which begins any employment ban from the
21 date of release or the end of parole. We believe that this
22 structure respects the Court's decision while offering
23 added protections for care-dependent populations.
24 Lastly, we desire to enhance our current PA Link
25 to Community Care website which, when fully implemented, 19
1 will serve as a resource for older adults and their
2 families to search and to identify available home care
3 agencies and individuals who provide personal care and
4 related services to older adults and their community in
5 order to serve the older adult's care-related needs.
6 Since the creation of this website, the
7 Department has intended to include individuals who wish to
8 serve as a home care worker in the directory. In listening
9 to older adults, we recognize that they desire to decide
10 where and by whom they will receive their long-term care
11 services and supports. And most importantly, our seniors
12 deserve to have choice in where they live and how their
13 needed services will be provided. Many older adults prefer
14 to not use an agency model of care; rather, they prefer to
15 employ and to retain their own individual care workers.
16 In the absence of our directory, many seniors and
17 their families are securing home care workers through lots
18 of different means. Sometimes it's through word of mouth.
19 Sometimes it's through websites like Care.com or
20 Craigslist.com in order to find a caregiver. Such methods
21 are not always the safest or the most reliable option. We
22 prefer to add a safer, more reliable option to link or to
23 connect home care workers with older adults and older
24 adults with home care workers. We do not feel comfortable
25 doing so without requiring the same background checks that 20
1 are required by workers employed by an agency or in a state
2 licensed facility. We believe that in addition to the
3 Department's PA Link to Community Care directory under the
4 Act will provide a safer decision-making option for older
5 Pennsylvanians and their families. It will support consumer
6 choice and would uphold the older adult's right to self
7 determination.
8 With profound respect for the work that this
9 committee engages in to support, serve, and to protect
10 older Pennsylvanians, we agree with the Committee that our
11 current Older Adults Protective Services Act needs several
12 critical enhancements so that we can more effectively
13 uphold our responsibility to older Pennsylvanians. We
14 believe that this House Bill and Senate Bill 899 attempt to
15 make those enhancements. We believe that both bills which
16 already have so much in common is proof that all parties
17 involved are closer to a unified approach to these issues.
18 Yet, if I didn't raise these most critical issues
19 today during this testimony, I would be remiss and would
20 not be filling the duties entrusted to me on the day that I
21 took my oath of office. I must help raise awareness about
22 elder abuse, must help to develop proper responses to it,
23 and must work to end it. But, I, we, need your help as
24 underneath every word written in both the proposed
25 legislation and in my written testimony is the fact that 21
1 Pennsylvania's number of older persons continues to rise
2 and more older adults equates to the potential for more
3 elder abuse. And at the end of every decision we make is a
4 human life, a Pennsylvania senior. We are poised and
5 prepared to continue to communicate, collaborate, and
6 coordinate our efforts to ensure that every protective
7 service's action taken is balanced, that it's balanced by
8 the duty to protect the safety of the vulnerable older
9 adults with their right to self-determination, so that they
10 can live and age well from all types of abuse with the
11 dignity and respect they deserve.
12 Thank you for the opportunity to present this
13 testimony today. I look forward to working with you and the
14 rest of the General Assembly as we ensure that we have the
15 best Older Adults Protective Services Act in the
16 Commonwealth of Pennsylvania to protect our 3 million
17 seniors. Thank you.
18 MAJORITY CHAIRMAN HENNESSEY: Thank you, Madam
19 Secretary. I should note that we have been joined by my
20 counterpart, Chairman Steve Samuelson from the Bethlehem
21 area of Pennsylvania and also by Representative Paul
22 Schemel from Franklin County. Welcome.
23 Madam Secretary, do you have time for questions?
24 SECRETARY OSBORNE: Absolutely.
25 MAJORITY CHAIRMAN HENNESSEY: Ok. Well, 22
1 yesterday we were having all the witnesses testify and then
2 take questions. Can you stay? If your schedule allows you,
3 we'd be happy to have you hear the other testifiers and
4 then answer questions, but if you need to leave, we'll
5 address our questions to you now.
6 SECRETARY OSBORNE: I'd be honored to stay and
7 hear the other testifiers testify on this important scope
8 of work and be available for questions at the end.
9 MAJORITY CHAIRMAN HENNESSEY: Okay. Thank you
10 very much.
11 SECRETARY OSBORNE: Thank you.
12 MAJORITY CHAIRMAN HENNESSEY: We appreciate your
13 presence here.
14 Our next testifier is Fred Shrimp, the director
15 of the STEP Office of Aging serving the Lycoming Clinton
16 County AAAs. And he's also chairperson of the P4A
17 Protective Services and Guardianship Committee. Fred,
18 you're no stranger to our committee. Welcome back and
19 we're anxious to hear what you have to say about House Bill
20 2549.
21 MR. SHRIMP: Thank you, Chairman Hennessy and
22 Chairman Samuelson and committee members for the
23 opportunity to speak today. And I want to thank Erin and
24 Lauren for their cooperation as we've talked about the bill
25 and changes that we would think would be necessary to help 23
1 us as AAAs actually implement the bill.
2 You have my written comments, and I'd like to
3 take a little liberty and talk a little bit about a couple
4 of things in addition to what's in the written testimony.
5 I remembered on the way down this morning from
6 Lycoming County that about five years after the law was
7 implemented, there was a hearing held by this committee
8 regarding "let's hear how it's actually working out in the
9 field," and I had the privilege of testifying at that time.
10 And the Older Adults Protective Services Act served such a
11 great purpose because one of the things that I said during
12 that testimony was that prior to this bill, I could think
13 of two people that perished that had protective services
14 been involved, we would have acted under that Act and the
15 authority given to us to approach the court and had
16 guardians appointed and these folks taken care of
17 appropriately. But instead, one who had severe mental
18 health issues and cognitive functioning issues died of
19 hypothermia and another gentleman who suffered, most
20 likely, from a severe dementia, perished in a fire in his
21 apartment set by his own cigarettes.
22 So the law has provided a lot of protection for
23 individuals who no longer can care for themselves, who are
24 neglected by caregivers, who were financially exploited by
25 strangers or relatives, and it's been a tremendous law and 24
1 I want to thank the Legislature and this committee for
2 having worked on this in the past and now looking at it as
3 a new amendment.
4 But, pointing out those who have been served by
5 it, I'd also like to point out that there's 60 to 65
6 percent of the reports that we receive are not
7 substantiated. So we go to a lot of houses and homes of
8 older adults where the older adult is not impaired at all,
9 but there is some type of report taking place and we go out
10 to them. And that's an area where -- and I addressed in my
11 comments -- I'm concerned about the balance that has to be
12 involved in respecting the older adult's rights versus the
13 invasive investigation of protective services. And I think
14 it's something we always have to keep in mind. I know
15 there's a few folks in this room who have gray hair -- I
16 know, it's premature -- but I'm at a place where I'm
17 covered by this law, have been for five years.
18 Now, let's just give a for instance because, like
19 I said, we have all those cases like I just mentioned, but
20 we have a lot of others where the motive for the report
21 isn't always the best or the purest. I'll just give you an
22 example. You're a 65-year-old. You have a daughter and two
23 sons. The daughter was married. Unfortunately, it ended in
24 a divorce and she has two children and has moved in with
25 you. Well, one of the sons decides she's getting all dad's 25
1 money, all mom's money. So they make a report that the
2 person is being financially exploited by the daughter. So
3 we go out to the home and go through the scenario in making
4 sure that the person wants the relationship with the
5 daughter in her home and that they're not being coerced and
6 all those things. No, it's just a dad or a mom taking care
7 of things that need to be taken care of.
8 So there's a balance in what we do because 60 to
9 65 percent of the referrals that we see we don't
10 substantiate, but we're looking at situations. And we
11 always have to keep in mind the older rights adult to make
12 choices for themselves. Many of us in this room may have
13 made a poor decision in the past. I'm sure I've made many
14 and my wife reminds me of some of them. But a poor
15 decision -
16 MAJORITY CHAIRMAN HENNESSEY: Does she let you
17 off the hook for the others or what?
18 MR. SHRIMP: The good ones I make, make up for
19 those.
20 MAJORITY CHAIRMAN HENNESSEY: Okay.
21 MR. SHRIMP: But it doesn't mean that I can't be
22 a good decision-maker in other situations or have the right
23 to make that poor decision and go down that road. And we
24 don't want to be in a place where we're seen as a police
25 agency. The Secretary mentioned in her testimony that the 26
1 original intent -- as at least it was explained -- because
2 I have been around that long -- to us when we first began
3 functioning under this law -- it was passed in 1987,
4 regulations written for a year, and then we implemented in
5 1989 -- that this was a social service intervention. And I
6 do get concerned that we become more police-oriented in the
7 way that we look at it.
8 Now, I understand crimes need to be reported and
9 the House and Senate just passed, and the governor signed -
10 - I don't remember the number -- but an update to the care-
11 dependent law of neglect of a care-dependent person which
12 requires reports to police. This law contains some reports
13 to police and we compromised with the idea that the serious
14 things that are being reported that are listed there,
15 serious bodily injuries, serious something-or-other -
16 serious bodily injury and serious physical injury -- and to
17 lawyers they mean something different; to social workers,
18 they probably don't -- suspicious death. So we're
19 reporting those directly to the police when we get a
20 report. But again, I can tell you that we've had some
21 hospitals take up the issue right now that anybody who
22 comes into their hospital with a bedsore from a nursing
23 home, they're making a report to us for caretaker neglect
24 by the facility. And as of yet, we have not found any
25 caretaker neglect because when we look into the situation, 27
1 all doctor's orders are being followed. You know, when
2 there's medical conditions, medications, skin integrity,
3 and all those things taken into account, it's not a serious
4 bodily injury, it's a person who's 93 years old, near the
5 end of their life, and their body just doesn't work as well
6 as it used to to do all the things that it should.
7 But when we receive that report now, we're going
8 to have to make that call to the police and then the police
9 are going to have to go out and investigate that situation.
10 So I wonder, you know, when we get into involving the
11 police before the AAA has an opportunity to investigate
12 those reports, whether we aren't wasting a lot of time of
13 police as well as other resources. And in my testimony I
14 mentioned a couple of things about that that would affect
15 the police and the AAA, like there's duplication of
16 reporting. The mandatory reporter has to report to the
17 police and to the AAA, but the AAA is also required to
18 report to the police. So if the AAA is making that report,
19 I wouldn't see a reason why the mandatory reporter would
20 have to do that because I think you can trust the AAAs to
21 make that report because we wouldn't have any reason to act
22 contradictory to that.
23 In getting back to the point of the rights of the
24 individual, I think it's very important that we look at
25 AAAs having access to records and information about the 28
1 individual on the basis of the consent of the older adult
2 unless that person is considered -- their competency is in
3 question or it's obvious that they're being coerced or
4 manipulated by someone. There is a remedy to that. We are
5 able to access the courts if we feel that those things are
6 taking place, but I think that access to financial records,
7 medical records, et cetera -- and there are provisions in
8 the HIPAA law actually to allow protective services to get
9 information, so that's kind of covered under some other
10 areas. But I would like to see a bill that has a strong
11 protection of the older adult's right to their self
12 determination in regards to the privacy of their records
13 and information about themselves, et cetera.
14 That's also kind of the area where I see that in
15 this amendment the word "risk" was added to the definition
16 of an older adult who's in need of protective services. Up
17 until now, it has been imminent risk. Imminent risk has a
18 kind of definition in that something is likely to happen if
19 there isn't an intervention. The term "risk," we are all at
20 risk of taking medication incorrectly, but only those that
21 have mental confusion or some type of disability are at
22 imminent risk of that and might need protective services.
23 We're all at risk of falling, but the only people who are
24 at imminent risk of falling are those with certain physical
25 disabilities and medical conditions that would make that a 29
1 possible imminent risk. So I would really be opposed to,
2 and AAAs are opposed to, expanding the definition to
3 include the word "risk" because it's a very broad term,
4 vague term. What does risk mean?
5 I just mentioned about receiving those reports
6 with ill intent. Imagine how many more we'll get with the
7 idea of risk and I can tell you, AAAs look at the reports
8 that come in. Protective services is not the only thing
9 that AAAs do, as you well know. So Older Adults Protective
10 Services should be a last resort approach to something,
11 unless, of course, we get a report. But as far as the AAA
12 looking at situations, if we can put in personal care,
13 Meals on Wheels, and so forth and solve the situation
14 that's called our attention outside of protective services,
15 all those things are going to be applied whenever there's a
16 report of need regardless of whether we consider it a
17 substantiated report or not. So AAAs are still acting in
18 behalf of older adults and providing services.
19 Maybe it's particularly my background since I
20 started implementing the protective services law when it
21 was passed, but everything that we do in our agency in the
22 back of my mind has to do with protective services. As I
23 tell my case work staff, it doesn't matter whether you
24 think some other agency should take care of this individual
25 or this should happen or that should happen. If they're 30
1 age 60, the Commonwealth has decided that we need to make
2 sure that there's no imminent risk that's taking place
3 without us at least investigating. So we use our resources
4 in that manner.
5 In that same line, in this law -- I don't know
6 whether maybe it was an editing issue or not because we
7 talked about it before -- when it comes to involuntary
8 action, the current bill uses the term that a
9 "preponderance of evidence" is the level of evidence that's
10 required in the court. Preponderance of evidence is too
11 low. The law originally passed had clear and convincing
12 evidence needed to be there to overrule a person's own
13 decision and the AAAs unanimously agreed that that needs to
14 remain clear and convincing evidence for an involuntary
15 intervention.
16 Most of the other things I've covered in the
17 report, but I wanted to especially call attention to the
18 idea that the older adult should be treated and have their
19 rights respected. Thank you.
20 MAJORITY CHAIRMAN HENNESSEY: Thank you, Mr.
21 Shrimp, for your testimony. Can you stay?
22 MR. SHRIMP: Yes.
23 MAJORITY CHAIRMAN HENNESSEY: Okay. Thank you
24 very much. Our next testifier then is Rebecca May-Cole
25 who's the Executive Director of the Pennsylvania 31
1 Association of Area Agencies on Aging, also known as P4A.
2 You'll hear Rebecca -- having heard praise, and I think we
3 all agree on this committee, that the AAA system in
4 Pennsylvania is indeed worthy of the praise that you get
5 and you've heard today. I think we all agree on that.
6 We're very blessed to have them around to serve our 67
7 counties, even though there's only 52 of them, and some of
8 them do double and sometimes triple duty, I think, in terms
9 of the counties they serve. They're an immense asset to
10 the Commonwealth and we've very happy to have you to
11 criticize or critique or praise House Bill 2549. So,
12 proceed whenever you're ready.
13 MS. MAY-COLE: Thank you, Representative and I am
14 honored to be able to represent such a wonderful group of
15 people who are truly committed to the well-being of older
16 adults. I don't think I've ever worked with a group that
17 has been more committed to what it is that they do on a
18 daily, an hourly basis.
19 I do appreciate, Chairman Hennessy and Chairman
20 Samuelson, the opportunity to come before you and the
21 members of the Committee on this very, very important
22 topic. I wanted to point out that AAAs, or actually P4A
23 has been in existence since the mid-1970s. We are the
24 organization that represents the views and needs of Area
25 Agencies on Aging across the Commonwealth. There are 52 of 32
1 us and I believe that we do a fantastic job and would like
2 to commend also the work that they do.
3 It's my pleasure to be here before you because
4 this is an area that is so incredibly important. And as you
5 heard already, we have talked quite a bit about that
6 balance, finding the balance between protection and the
7 individual's rights. There is no one right answer. There
8 are some judgment calls that need to happen and I
9 appreciate the desire of the Committee to find the best
10 possible way of finding what that balance is. I sincerely
11 appreciate the work that the staff of the Committee have
12 done for a number of years on this bill. We have always
13 been able to reach out to all of you and have our questions
14 heard and answer the questions that you have and it's been
15 an excellent relationship. It's one that I really respect.
16 You have a very good staff, both sides have an excellent
17 staff and I think that they should be recognized as well.
18 Considering the fact that this is such an
19 important bill and has such a great impact on the needs of
20 older adults, the fact that you have been so open to
21 stakeholder input has been remarkable.
22 You just heard Fred Shrimp who has been the Chair
23 of our Protective Services and Guardianship Committee for a
24 number of years -- he's been an AAA director for a number
25 of years -- representing his views and the views of AAAs 33
1 across the Commonwealth. As you know, the AAAs are the
2 boots on the ground. We are the ones who are there in your
3 communities, know the resources in your areas, to be able
4 to give services to people.
5 One example that I like to use, and it may seem
6 somewhat trite, is an example in one of the northwestern
7 counties of Pennsylvania. They found that there have been
8 older adults who have been sharing their food with their
9 pets because they didn't have enough money to buy pet food,
10 and so it was to the point where the person themselves
11 wasn't getting enough to eat. And they were able through
12 relationships with a local, I think, pet food company to
13 actually receive donations from the company to be able to
14 provide food to the pets so that the seniors are able to
15 eat the food that's given to them. It's those kinds of
16 relationships and being in your community that enables them
17 to be able to do that kind of thing.
18 I also want to point out the guidance and the
19 legislative responsibility that AAAs have. The AAAs do
20 feel very strongly and they do try to weigh that balance of
21 protection versus the rights of the individual. They will
22 always try to consider what is the least intrusive way of
23 meeting the person's needs. And sometimes they're able to
24 provide services in a way that they don't have to
25 necessarily move the person out of the home if it's a 34
1 situation of self-neglect. Sometimes they do need to find
2 emergency placement, a place for the person to live. They
3 balance the needs of the person with the funding that they
4 have. There is one pot of money basically -- or there has
5 been until this year -- one pot of money that funds all
6 block grant services. It's under the PENNCARE line item in
7 the state budget. And so protective services is a piece of
8 the pie, and you've got one pie. So if protective
9 services' needs are increased, you're taking more of that
10 slice of pie.
11 And so sometimes some of the services that could
12 almost be seen as a way of preventing some of these needs -
13 - sometimes you need adult day services to give the
14 caregiver the ability to have a little bit of respite -
15 you can prevent some of these needs of protective services.
16 And so I want to very clearly applaud the Legislature and
17 the Administration and the Secretary of Aging for
18 advocating for and obtaining $2.7 million for this very
19 critical service. We sincerely appreciate it.
20 I would also like to add, however -- and I don't
21 want to say however because I don't want to in any way
22 minimize the appreciation that we have -- we did do a
23 survey of AAAs asking them what do you need in order to
24 meet the needs of protective services folks who are
25 involved in protective services doing the investigations 35
1 and all of that. What do you need today to be able to meet
2 those needs, those requirements? And they reported that it
3 was approximately $8 million.
4 I have outlined in some parts of my testimony the
5 ways that some of these funds would be used. I'm jumping
6 around a little bit trying to not read exactly. Some of
7 the things that they would use those funds for -- and the
8 Department is actually in the process of gathering those
9 requests right now for that $2.7 million. The deadline is
10 tomorrow so if any AAAs are listening, don't forget to put
11 in your request. Some of the things that the AAAs reported
12 that they would need are funds to replace resources that
13 were diverted from other things. As I said, that pie is
14 only so big. So when you have to increase the pie,
15 something else has to suffer. And I have to say also, AAAs
16 have done an amazing job of using their funds wisely and
17 finding a way to make ends meet in very difficult financial
18 times. So senior centers, adult day centers, home-
19 delivered meals, congregate meals, those are all the kinds
20 of things that if we're able to provide additional funds
21 directly for protective services, it can help to allow
22 those other services to be continued.
23 Hiring more protective services workers. In some
24 of the areas of the state, they've had a very difficult
25 time hiring staff, in part, because it's a job that is 36
1 extremely taxing, as you can imagine. It's extremely
2 draining to see these kinds of situations. It's also
3 extremely rewarding; however, at times they're not able to
4 find people because they're able to find jobs that pay
5 higher and have much less tax -- you know, it's not as
6 taxing on them themselves. So additional funds would be
7 helpful there.
8 Training is needed. Being able to hire or
9 contract for legal services. I would point out the
10 dramatic increase in the number of financial abuse cases
11 being reported. If you think about the traditional or
12 typical social worker, typically they're not in it to start
13 looking through bank records or doing the kind of work
14 accounting -- folks who are accountants do. And so the
15 AAAs have to find a way of being able to do those
16 investigations, and some have been very creative. Some
17 have actually used their financial staff, their accounting
18 staff, trained them to be able to do some of this work
19 because that's something that is kind of in line with their
20 training. Others will need to either hire or contract out
21 for those services. And so that's another piece that's
22 very important, especially with the increase in the number
23 of financial abuse cases that we're hearing about.
24 Supportive services like court fees, behavioral
25 health services, emergency housing that I mentioned, those 37
1 are all things that would be extremely helpful. And I also
2 want to point out -- and I think the Secretary also
3 mentioned this -- this is as it is today. So we have this
4 bill before us that you're considering, and hopefully we'll
5 be able to see the changes to the Older Adults Protective
6 Services Act. Any changes or improvements that are made
7 will have some sort of financial implication. And so, that
8 $8 million that I quoted, very well will change based on
9 what ends up being passed. So I'd just like to point that
10 out to you.
11 I don't want to repeat what others have said, so
12 let me just go through and see what else I wanted to make
13 sure to mention. I did talk a little bit about the fact
14 that protective services workers have an incredibly
15 demanding job, and I do want to recognize their dedication
16 and their passion. It takes a special person to be able to
17 do this. We have some folks who've been able to do this
18 for many, many, many years. And so the fact that the
19 Department recognizes those protective services workers,
20 the fact that the Agencies are so supportive of those
21 workers is incredible and I know we feel that appreciation
22 from you, so I also want to thank you for that.
23 I also want to recognize the fact that the
24 Department and that this Secretary in particular has been
25 so dedicated to protective services. It's obvious that 38
1 this is something that means a lot to her. It's her
2 background, and I think that that's important to realize,
3 that we have a secretary who really truly understands this
4 field of protective services and we so very much appreciate
5 her advocacy in getting the additional dollars that we
6 received.
7 AAAs are there on the ground in each of your
8 communities 24 hours a day, seven days a week, on-call for
9 any call that may come. Their commitment is noteworthy and
10 we need to make sure that they have the resources that they
11 need to be able to continue doing this important work.
12 They need the complete array of tools and this bill goes a
13 long way toward enabling AAAs to be able to have the tools
14 needed. I don't want to only focus on the fact that
15 additional funding is needed. I'm sure you hear that on a
16 regular basis; however, you know, this bill does go a long
17 way in providing some of the additional assistance needed
18 to be able to help AAAs do the work that they need to do.
19 We, as AAAs, are more than willing to continue to
20 work with you, to work with your staffs, in making changes
21 to this bill, making changes to the law to improve services
22 to seniors, and finding that balance that we need to find
23 to be able to protect individuals who need protection while
24 also honoring the fact that sometimes they make decisions
25 that we may not necessarily agree with. 39
1 I think of my grandmother who sometimes would
2 make decisions that I and my mother certainly wouldn't
3 agree with. I know at one point, my grandmother, she had
4 some issues with circulation and so her leg below the knee
5 had to be amputated. And so my mother went in and she
6 moved things in the cabinets down low so my grandmother
7 could get them, and she was not happy because of the fact
8 that it wasn't her decision in her house to move those
9 things. And she felt that she was fine, she'd be able to
10 do it. So while my mom and I may not have agreed, she
11 moved everything back up so that my grandmother had that
12 ability to make that decision for herself. Some may say
13 that wasn't a smart idea, but would any of you want
14 somebody to come in and change things around on your behalf
15 without your permission? It's something that's critically
16 important.
17 So I thank you very much for your attention to
18 this. Many times, I think seniors are nameless. They
19 don't get the attention that they deserve. This Committee
20 does bring to light the needs of seniors and it's such an
21 incredible, incredible, important work that the AAAs do and
22 that may of the folks do who provide services in home, who
23 provide adult day services, the nursing facilities, the
24 home-delivered meals providers, all of them, we really
25 recognize them in working together as a whole entire 40
1 network to meet the needs of AAAs.
2 I thank you for your time today. I thank you for
3 the important work that you do and I'll be able to stay
4 afterward for questions.
5 MAJORITY CHAIRMAN HENNESSEY: Okay. Thank you
6 very much, Rebecca.
7 MS. RAUB: And I just want to thank Rebecca and
8 Fred and JR. We've done a conference call that was really
9 productive, specifically speaking out about the bill and
10 addressing some of their issues. So thank you for being
11 open to meeting with staff. Lauren, too, was on the e
12 mail.
13 MS. MAY-COLE: Thank you.
14 MAJORITY CHAIRMAN HENNESSEY: Thank you very
15 much. Our next testifier is Desiree Hung. She's the
16 acting Government Relations Manager for AARP in
17 Pennsylvania. And we've been joined by Representative Eric
18 Nelson from Westmoreland County. Welcome.
19 MS. HUNG: I grew up in Washington County so we
20 were neighbors.
21 All right. Thank you very much. Thank you for
22 the opportunity to appear before the House Aging and Older
23 Adult Services Committee today to discuss AARP's
24 perspective on House Bill 2549 which is legislation to
25 update the Older Adult Protective Services Act. My name is 41
1 Desiree Hung and I'm the Associate State Director for
2 Advocacy at AARP Pennsylvania.
3 AARP has 1.8 million members over the age of 50
4 in Pennsylvania, and the issue of ensuring that older
5 Pennsylvanians are protected from all forms of abuse,
6 whether it's physical, psychological, or financial, is of
7 the utmost importance to them. AARP regards the updating
8 of the Older Adult Protective Services Act as a critical
9 and urgent need in Pennsylvania.
10 AARP's public policy book make the following
11 recommendations for state action on adult protective
12 services: States should enact, implement, and fully fund
13 adult protective service laws that apply in the community
14 and long-term care settings and provide for prompt
15 investigation; access to the alleged victim by agency
16 personnel, law enforcement, and other relevant entities;
17 intervention in emergency and non-emergency situations of
18 abuse, neglect, or exploitation of vulnerable individuals;
19 use of the least restrictive protective action that meets
20 the specific needs of the vulnerable individual; a
21 balancing of the individual's autonomy and self
22 determination with the state's need to protect those people
23 who cannot protect themselves; and programs for abusive
24 family members and caregivers aimed at curbing further
25 abuse. States should also work to ensure that domestic 42
1 violence and adult protective service agencies are
2 responsive to the particular needs of older abuse spouses
3 and partners.
4 While physical abuse of an older Pennsylvanians
5 is a horrid crime that draws attention and action when it
6 is discovered, the most prevalent elder abuse is financial
7 exploitation. AARP's public policy book notes that growing
8 numbers of older Americans, especially those with cognitive
9 impairments, are at a heightened risk for financial abuse.
10 About 15 percent of Americans age 70 and older
11 are living with dementia and this figure is projected to
12 rise rapidly. The prevalence of dementia is expected to
13 double by 2050. House Bill 2549 is an important step
14 forward in meeting AARP's principles for fighting elder
15 abuse and recognizing the growing need to protect against
16 financial exploitation. AARP knows that a great deal of
17 work was put into crafting this legislation to ensure it
18 meets the needs of people it is designed to protect and can
19 pass constitutional muster in the Commonwealth.
20 As the Committee begins to consider this
21 legislation, AARP would like to make a number of comments
22 about some of the details of the bill. First, the General
23 Assembly recently passed legislation that was signed into
24 law regarding the neglect and/or abuse of a care-dependent
25 person that defined a caretaker and care-dependent person. 43
1 That new law defines a caretaker and a care-dependent
2 person, but the language in House Bill 2549 defining these
3 two categories is different. AARP believes it is important
4 to have a standard definition.
5 AARP would also like to note concerns we have
6 about some of the provisions which make it easier for
7 workers to begin jobs before being fully cleared of
8 previous criminal activity. AARP understands the balance
9 we need to seek in order to fill the many positions that
10 are needed to care for individuals who need assistance, but
11 we also have a responsibility to ensure that those needing
12 assistance are protected.
13 In general, we believe House Bill 2549 achieves a
14 balance between these two goals, but there are two areas we
15 would like to highlight. Our policy also does not agree
16 with allowing someone who has already been working for over
17 a year to self-attest that they have not been convicted of
18 a crime. We believe current employees should be required
19 to have an initial background check. We also disagree with
20 the provisional employment period while background checks
21 are being completed which is against the AARP policy.
22 Having pointed out these concerns, I would like
23 to re-emphasize AARP's general support for this
24 legislation. In light of the increased reports of financial
25 exploitation against older Americans with the need to set 44
1 firm rules for hiring in place so older Pennsylvanians and
2 their families can feel secure that they and their loved
3 ones will be safely cared for, it is urgent that the
4 General Assembly move legislation to update the Older Adult
5 Protective Services Act, moving forward as soon as
6 possible.
7 AARP urges this committee to consider the
8 testimony that is presented during these two days of
9 hearings and make any necessary changes to strengthen the
10 bill and move it forward in the legislative process.
11 Thank you again for the opportunity to be here
12 and I'll be glad to answer any questions you have, and I'm
13 happy to stay until the end of the testifiers.
14 MAJORITY CHAIRMAN HENNESSEY: Okay. Thank you,
15 Desiree. We appreciate that.
16 MS. HUNG: Thank you.
17 MAJORITY CHAIRMAN HENNESSEY: With that, we'll
18 call up Diane Menio, who's the executive director of CARIE.
19 Good morning, Diane.
20 MS. MENIO: Good morning. Good morning, Chairman
21 Hennessy, Chairman Samuelson, and the members of the
22 Committee, and the staff.
23 MAJORITY CHAIRMAN HENNESSEY: Can you stand a
24 little closer to the mic if you can?
25 MS. MENIO: Okay, I'm trying. 45
1 MAJORITY CHAIRMAN HENNESSEY: Thank you.
2 MS. MENIO: Thank you all. And I appreciate that
3 you've spent so much time on this legislation and also your
4 service to this committee and your commitment to folks who
5 are aging in Pennsylvania including me.
6 MAJORITY CHAIRMAN HENNESSEY: Some of us show it
7 more than others.
8 MS. MENIO: Well, you know, I am covered under
9 the Act and I have been for a while, so I share some of
10 Fred's concerns. Actually when I think about this, I often
11 think about myself and my family and how I want things to
12 happen for myself. You have my written comments and I just
13 want to go a little bit off script as some others did.
14 First of all, I want to say that I am so proud of
15 our Secretary of Aging. I believe that she is a true
16 advocate. I am supportive of many of the things that were
17 in her testimony. She also reminded me of my past
18 experience as she talked about hers.
19 When I got out of college, I had my first job,
20 was at Northampton County MHMR. I worked there for about
21 eight years, and one of the things I did was civil
22 commitments. They were difficult to do, but especially the
23 most difficult ones that I had to do were on the people who
24 were elderly. There were people who were in the 90s roaming
25 the streets. We had a lady who was exploited terribly by 46
1 some young man she met. And what happened to those people
2 was that we committed them and we put them in state
3 hospitals or local mental health units of hospitals.
4 I was a young person at the time, I was in my
5 20s, but it was very upsetting to me. I thought, why do we
6 have to treat these people this way? They're not getting
7 the treatment that they need when they go into these
8 facilities and they're being labeled. These are people that
9 didn't have mental health problems all their lives. They
10 were people who had dementia, most likely, and other things
11 that caused them to have this problem being exploited or
12 neglected or self-neglecting. And so at that time, I said,
13 what could we do about this? And I didn't think as far as
14 protective services at that time.
15 So fast forward a bit, and I came to CARIE just
16 after the Protective Services Law was passed. And I want
17 to say, to talk a little bit about CARIE. Our
18 organization, the Center for Advocacy for the Rights and
19 Interests of the Elderly, was founded in 1977 by a
20 gentleman named Eli Cohen who was a strong advocate and
21 actually the Director of Aging Services in Pennsylvania
22 prior to that, before we had a Department of Aging. He was
23 in the Department of Public Welfare.
24 So we come from good roots and shortly
25 thereafter, my boss was hired, the first Executive 47
1 Director, Bernice Soffer. And so I think about her as well
2 and she was so compassionate about these issues. I know
3 more about the history of how this legislation came about
4 from her than anyone else. And so she was very passionate
5 about, for instance, the mandatory reporting. I also want
6 to add that she was very proud of this legislation when it
7 passed. As I said, our organization was instrumental in
8 having this happen, and Bernice had a picture of herself
9 with Senator Casey signing the bill and she was so proud of
10 that photograph.
11 Well, I saw that photograph a couple months ago
12 at Bernice's funeral. She died just short of her 92nd
13 birthday, and by the way, she always counted up on her
14 birthday so I could probably say 92. But she was, until
15 the end, very proud of the work that she and our
16 organization was able to do and the entire Aging network
17 until very close to that. In fact, I was sitting here today
18 thinking, you know, if Bernice were still here and well,
19 I'd have her sitting next to me because she was just the
20 most wonderful lady, and I thank her.
21 But what she did back in the early 80s was to -
22 she got a federal grant, and with that federal grant, she
23 created task forces across Pennsylvania. It was a
24 statewide grant. We had staff offices in various places,
25 and the purpose of that was to discuss this issue of elder 48
1 abuse and what we can do about it. And so I think the
2 grant was two years and we spent a long time. We came up
3 with -- by the way, the final report is a book this big.
4 We didn't have online then. Everything was typed -- but
5 with that project, we talked to the community. We had
6 coalitions of groups across the state and all the counties
7 you are in, and we talked to both consumers and the
8 practitioners, people who had been in the Area Agencies. I
9 remember the first people in our Area Agency on Aging in
10 Northampton County was very committed to helping older
11 adults. They were as concerned as I was about what was
12 happening to older people.
13 And so we worked with all of these groups to come
14 up with some ideas about what this should be, because at
15 the time, Pennsylvania was a little late in having
16 protective services legislation. Many states had
17 legislation long before Pennsylvania. But what they did
18 was they basically took out their Child Protective Services
19 Act and they changed the words. Well, that was one of the
20 biggest issues for Bernice. She said to me, older people
21 aren't children, and I can tell you, she was not like a
22 child when she was 92 years old and nor am I. And so we do
23 feel very, very strongly that older adults do need to have
24 self-determination, that they can make decisions for
25 themselves, good, bad, or otherwise. 49
1 I also want to say while we came out at the end
2 of all that process and said no mandatory reporting, and
3 the bill as it first was passed had no mandatory reporting,
4 whatsoever.
5 After I started working at CARIE, and this was
6 around the early 90s, my ombudsman staff came into my
7 office and said they had these issues around people who
8 were being severely neglected in nursing homes. And I
9 don't want to go into all the gory details, but they were
10 in terrible condition. And the people that we were talking
11 about were not able to advocate for themselves. They
12 didn't have families. Many of them were nonverbal. They
13 were laying in their beds not being repositioned and
14 developing severe bedsores. And so it was devastating to
15 my staff to go out and see these people and not have a good
16 response.
17 So they referred to Protective Services and they
18 referred to the Department of Health, and really, I hate to
19 say it, but nothing happened. I will say that at the time
20 I don't think Protective Services was where it is today,
21 where it can get clinical folks involved and so on in these
22 things. It just wasn't happening, and so the frustration
23 for my ombudsman was we already used our tools. We went to
24 the licensing agency and we went to Protective Services and
25 nothing's happening. 50
1 So the next thing we did was we went to law
2 enforcement. And it ended up the situations that we were
3 involved in actually didn't get prosecuted, but they led to
4 prosecution and they were prosecuted by the Attorney
5 General's office. And at that point in time, we were also
6 concerned, became concerned, about how can we make this
7 change?
8 A couple things happened, actually. Those of you
9 who know Ron Costen likes to talk about this because he was
10 the prosecutor in the case, and he sent an undercover
11 person out to one of the nursing homes. And he got his
12 nurse aid training, and he went in and started pulling
13 records and taking little photographs of people's records
14 and found a lot of people with criminal backgrounds. So
15 that's part of the reason that we supported that issue.
16 And then the other thing he saw was extremely poor care.
17 And so we became convinced that we needed some
18 form of mandatory reporting for those people that I'm
19 talking about, people who can't speak for themselves, they
20 don't have anyone who's going to speak for them. And so we
21 were very strongly in favor of Act 28 which was the neglect
22 of a care-dependent elder. So that was very important and
23 we find -- I think that we've had mixed experience with
24 these things. We also advocated for Act 13 as well. We
25 thought that was very important, and Act 14, which was the 51
1 bill that required training for long-term care staff in
2 elder abuse. We actually were able to write the training
3 for that program because we do abuse prevention training
4 and we've developed a program that is evidence-based and
5 does have a good impact.
6 Unfortunately, at the time that that bill was
7 passing, we were advocating for additional training for
8 staff, and it turned out not to happen. What happened was
9 it was part of that small amount of training, eight hours
10 became a part of that training rather than separate from
11 the training.
12 And I talk about that because I want to talk
13 about my concern about some of the issues in the bill. One
14 of them is the background checking. I do think that, you
15 know, there has been -- obviously, and the Secretary talked
16 about this and others -- things have changed dramatically
17 over the years where we have new kinds of programs, new
18 things happening. The consumer-directed model was
19 something that was happening mainly with the folks under
20 60. We didn't have waiver, and so thinking about how much
21 has changed and how workers have changed, I think we do
22 need to look at new things. But one of the things that
23 we've done some work around direct-care workers as well
24 because we know that good direct-care workers are needed to
25 help older adults as well. 52
1 I saw a number a couple weeks ago that the
2 average wage of a direct-care worker is $11 an hour. Now,
3 I know I couldn't live on $11 an hour, and I don't think
4 many of us could. It's very difficult. So we have an
5 issue here where we're providing low pay, not much
6 training, and we expect people to do all the work of this
7 job. The background checking is important, as I said, but
8 we need to make sure that it's right. I do think that if
9 we could boost these jobs, we might be able to recruit
10 people and not have this much of that problem.
11 I also will say that a number of cases that I've
12 been involved in where there was serious abuse that got to
13 law enforcement, the person didn't have a criminal
14 background. I think that speaks to the training issue, to
15 the supervision issue, to just a lot of the issues that we
16 deal with. We have these things called Memory Care Units
17 now. The last three that I know about, these criminal
18 cases, were in those facilities, and their staffing -
19 they're working under the personal care home licensing -
20 and their staffing is very low, but yet their caring for
21 these very, very vulnerable people. And so we really need
22 to look at our systems. And I just go also back to the
23 funding issue which others have talked about. If we can't
24 finance some of these things, we're not going to be able to
25 successfully do them. 53
1 So I think we all want this to be successful, but
2 it takes some work to do that. I don't want to go on too
3 long because I know you have questions and I'm glad to
4 answer those, but some of the things that we're concerned
5 about as well are in the bill. One of the things that we
6 noticed was that there was language stricken in the bill
7 around perpetrators. We don't usually advocate for
8 perpetrators, but nevertheless, taking away the appeal
9 right. What we see is families fighting with one another,
10 for instance. One family member might report the other one
11 as an abuser. It may or may not be so. It may even get
12 substantiated, but there may be other evidence that should
13 be looked at, so we have to be careful not to throw people
14 under the bus because they, you know, have been reported as
15 an abuser. They may be the person who is actually taking
16 care of the person. And so I think that language is
17 important. I don't think it's been used a lot, and so it
18 should be there to protect those who are innocent and
19 that's our concern.
20 And I want to also just ditto Secretary Osborne's
21 recommendation around looking at victim services. We also,
22 by the way, do victim services and we help people in court.
23 And the people that we help in court are, by and large,
24 able to speak for themselves. We don't go ahead and do
25 anything without them, you know, consenting. But having us 54
1 there, by the way, helps them get through this process more
2 easily. They don't back out quite as often.
3 We also do, by the way, have an advocate who goes
4 into long-term care and helps people who have been victims
5 in those settings as well because, again, one of the
6 concerns we have is that often crimes that happen in
7 facilities are too difficult for police to understand. You
8 know, they have a perpetrator who's maybe compromised in
9 one way or another because they're a resident of a facility
10 as well as the person who was abused, so they don't really
11 know how to do it. And then, you know, it's just like,
12 well, this is something that is too hard. And I'm not
13 sure, I'm not saying that's the reason they do it, but it
14 just is a very challenging situation. So we're doing as
15 much as we can to advocate for those cases to get -- we
16 want those people to have justice as well, and so we're
17 working on that. So I will just stress that.
18 And thank you again. I also want to say we're
19 glad to work with you on this. Thank you.
20 MAJORITY CHAIRMAN HENNESSEY: Thank you very
21 much, Diane, for your comments and the critique of the
22 bill.
23 I should also mention that I introduced you as
24 the Executive Director of CARIE. For purposes of our
25 viewing audience, I should say, that's an acronym for the 55
1 Center for Advocacy for the Rights and Interest of the
2 Elderly. Thank you for the work that you do in that
3 capacity. Thanks for your testimony today.
4 Our last testifier -- and you can stay for
5 questions? Okay. Thank you.
6 Our last testifier is Janet Ginzberg. She's a
7 senior staff attorney at Community Legal Services, I guess,
8 based in Philadelphia, right?
9 ATTORNEY GINZBERG: Yes, that's right.
10 MAJORITY CHAIRMAN HENNESSEY: Okay.
11 ATTORNEY GINZBERG: Representative Hennessey,
12 members of the House Aging and Older Adult Services
13 Committee, thank you for this opportunity to speak with you
14 on the subject of the criminal records provisions.
15 MAJORITY CHAIRMAN HENNESSEY: You might want to
16 get a little closer to the microphone.
17 ATTORNEY GINZBERG: Is that okay?
18 MAJORITY CHAIRMAN HENNESSEY: That's fine,
19 thanks.
20 ATTORNEY GINZBERG: I'm going to be speaking
21 specifically about the criminal records provisions. My
22 name is Janet Ginzberg. I'm a senior staff attorney in the
23 employment unit at Community Legal Services. Our unit
24 represents low-income Philadelphians in a broad variety of
25 job-related issues; discrimination, wage theft, 56
1 family/medical leave, disability benefits, and mainly
2 barriers to employer for our clientele. That's really the
3 biggest issue in finding work.
4 CLS is proud to have played a role in Peake v.
5 Commonwealth of Pennsylvania in which the Commonwealth
6 Court struck down the lifetime employment bans contained in
7 OAPSA. I would like to add as an aside that I was hired at
8 CLS 19 years ago specifically to challenge the criminal
9 records bans so I have personal interest in the legislature
10 amending OAPSA in light of Peake. I'd like you to get it
11 done so I could move on to another issue. However, we do
12 have some concerns with the language contained in House
13 Bill 2549.
14 I do want to stress that CLS, like everybody
15 here, cares deeply about protecting care-dependent people.
16 We have families who are care dependents and older. We are
17 likely to be so ourselves, but we also believe that the
18 safety and well-being of care-dependent individuals can be
19 safely balanced with the needs and the rights of people
20 with criminal records.
21 CLS has represented -- my testimony says scores
22 of individuals; I'm sure by now it's actually thousands of
23 individuals -- whose livelihoods have been detrimentally
24 affected by an irrebuttable presumption that a past mistake
25 automatically classifies them forever a danger. The people 57
1 who come into our office have criminal records that are 5,
2 10, 20 years old that are still affecting their ability to
3 get employment, and all they want is to be able to work.
4 All they want is to be able to be productive members of
5 society. They come to us because they say, this was a
6 really long time ago, and I want to be able to work and
7 provide for my family.
8 Moreover, the negative effects of criminal
9 records issues, and OAPSA in particular, are not limited to
10 those precluded from employment. The prohibition on
11 employing individuals who have remote convictions also has
12 a detrimental effect on the staffing of nursing homes and
13 other long-term care facilities. Resources for Human
14 Development is a social services provider in Philadelphia
15 that was a plaintiff for us in Peake because they want to
16 be able to hire people with criminal records. They feel
17 that they do excellent work, that they provide a role model
18 to many of their clientele, and that, quite frankly, they
19 often had trouble finding people for $11 an hour who didn't
20 have criminal records to work in their facilities.
21 From the consumer's point of view, elderly and
22 disabled patients are denied caregivers who have provided
23 dedicated and responsible service to them and upon whom
24 they have come to trust and rely.
25 First, I'd like to address the lookback period 58
1 suggested in House Bill 2549. Generally speaking, CLS
2 supports a tiered system that recognizes that different
3 offenses should be treated differently. One of the
4 problems with OAPSA as it was originally written, or at
5 least since the 1997 amendments, was that individuals with
6 minor crimes, including the theft of library books, were
7 treated the exact same as people with murder convictions.
8 All were banned for life from working in facilities covered
9 by OAPSA. The tiered system with different lookback
10 periods recognizes that hiring restrictions should be more
11 narrowly tailored to address the actual risks associated
12 with particular offenses.
13 At the same time, we believe that some aspects of
14 the proposed tiered system are problematic. For example,
15 the bill still contains a lifetime ban for some crimes. It
16 also contains a 25-year ban which, for all practical
17 purposes, is a lifetime ban. The average work life of an
18 American is 45 years, so a 25-year ban is more than half of
19 the work life and has drastic repercussions on people's
20 ability to support themselves and their families.
21 This is particularly important in light of the
22 fact that all of the social science research that is coming
23 out now about recidivism shows that after a certain number
24 of years, the chances of somebody committing another crime
25 goes down almost to the point of someone who's never had a 59
1 conviction before. And depending on the research you read,
2 that period of time is four to seven years in length. So
3 to have lifetime bans and 25-year bans, and some would
4 argue, 10- or 15-year bans, is not rational in light of
5 this unchallenged social science research about recidivism.
6 Finally, the lifetime and 25-year restrictions
7 include some crimes that we believe should not bar people,
8 essentially for life, from employment. For example, while
9 aggravated assault sounds really serious and often is
10 really serious, the circumstances under which people get
11 convicted of aggravated assault and other crimes like
12 endangering the welfare of a child -- which also sounds
13 terrible but often when you hear the circumstances, are not
14 as bad as they seem. So we feel that some of the crimes
15 that are on the 25-year ban should not be there and should
16 be on the 10-year ban. Or perhaps, there could be some
17 other way of mitigating the restriction based on the
18 circumstances. For example, if somebody has one aggravated
19 assault, maybe they're on the 10-year ban, maybe they don't
20 go on the 25-year ban until there are two aggravated
21 assault convictions.
22 And finally in terms of the tiered systems, House
23 Bill 2549 would prohibit the employment of individuals
24 convicted of a number of driving-related offenses including
25 low-level misdemeanor DUIs. I propose that this low-level 60
1 offense be removed from the list of restricted offenses
2 unless the position being sought requires driving a motor
3 vehicle. An individual who's been convicted of DUI simply
4 does not present any risks to persons under their care
5 during the course of regular non-driving related
6 employment, and banning them from working is purely
7 punitive.
8 House Bill 2549 seeks to address the
9 Commonwealth's holding in Peake with regard to lifetime
10 bans and the 25-year bans by permitting an individual who
11 would otherwise be barred from employment to apply to the
12 Department for a waiver; however, in order to meet the
13 constitutional requirements set by the Pennsylvania courts,
14 I would argue, the exemption process needs to be meaningful
15 and accessible. It also needs to be quick in order to
16 preserve job opportunities or jobs themselves in the case
17 of current employees affected by this amendment. The
18 proposed waiver process in House Bill 2549 is none of these
19 things.
20 Our concerns about the proposed waiver process is
21 as follows: First, we believe that employers, and not the
22 government, should be making the decisions about whom they
23 hire. Employers have an interest in hiring the very best
24 employees that they can. That includes employees who are
25 qualified, competent, caring, and present as little risk as 61
1 possible to clients and coworkers. The process of
2 determining which job applicants would be suitable for
3 employment is one that employers and their HR departments
4 have perfected over time within the context of their
5 particular fields.
6 In the two years since the Peake decision, and
7 indeed in the many years since the criminal records
8 restrictions were first passed, employers have taken their
9 responsibilities to their clients and their workplace
10 seriously and have successfully weighed job applicants'
11 abilities and backgrounds, including their criminal
12 history. In light of the studies that I raised showing
13 that people with old criminal convictions are no more
14 likely to commit another crime than people who have never
15 been convicted, employers are able to rationally and safely
16 weigh the risks entailed by hiring individuals with
17 criminal record without inefficient and, perhaps, even
18 costly government intervention.
19 Second, the waiver process as set forth in this
20 bill is one that is not likely to be accessible for many
21 people. In order to apply for the waiver, individuals have
22 to be aware that the process exists, be provided with the
23 appropriate forms for applying for it, and have the
24 literacy and wherewithal to fill out the forms or the
25 resources to find help in doing so. 62
1 We regularly encounter employers who two years
2 after the criminal records provisions were struck down by
3 Peake are completely unaware that the criminal records
4 provisions of OAPSA no longer act as a bar to their
5 employing the people that they want to hire. Similarly,
6 before the Peake decision when employers were allowed to
7 hire certain individuals under what was known as the
8 interim policy, employers were not aware of this policy and
9 not aware that there were exemptions to the OAPSA criminal
10 records provisions.
11 We at CLS over the years have been able to assist
12 many people with getting employment by advocating on their
13 behalves with employers and with writing letters explaining
14 the state of the law and explaining why a particular person
15 is eligible for employment using many of the factors listed
16 in House Bill 2549. But many people around the
17 Commonwealth have not had the source of resources that CLS
18 provided, and undoubtedly, countless people across the
19 Commonwealth have been unable to obtain employment and
20 employers have lost many dedicated and qualified employees
21 due to lack of information about the status of OAPSA and
22 inability to advocate on their own behalves. We're very
23 concerned that many employers and job applicants will be
24 equally uninformed about the proposed waiver process and
25 that job opportunities will be lost to many because of 63
1 this.
2 Third, thirty days is a very long time to wait
3 for a determination affecting someone's employment. In our
4 experience, employers will not wait to find out whether
5 they can hire an applicant. They will move on to another
6 applicant. Many of the jobs covered by OAPSA, furthermore,
7 are low-wage work, and individuals applying for them can't
8 afford to wait to see whether the Department is going to
9 grant them a waiver, let alone the lengthy appeals process.
10 We are happy to see that there's an appeals process in this
11 bill, but we're doubtful that it's going to really be
12 helpful to many people.
13 I will say that House Bill 2549 is preferable to
14 the Senate bill version of the waiver process in that that
15 is attached to a specific job. And we can tell you from
16 our experience that by the time somebody applies for the
17 waiver process, that specific job is long gone and the
18 person will just have to reapply and reapply and reapply
19 for that waiver for every job that they seek.
20 Finally, under House Bill 2549 facilities stand
21 to lose caring and able current employees who have already
22 proven their value and dedication to their clients. While
23 the general rule of the bill in the beginning appears to
24 apply only to job applicants, the bill later appears to
25 cover current employees as well. As a result, health care 64
1 employers may lose fine employees whom they have no desire
2 to fire, and the families of these workers would face
3 financial hardship and uncertainty.
4 Again, we do recognize the need to ensure the
5 safety of care-dependent individuals and to protect their
6 property. At the same time, we believe that thousands of
7 citizens of Pennsylvania who want nothing more than to be
8 productive members of society will be denied the
9 opportunity to put their mistakes behind them and be
10 gainfully employed. As ex-offenders are increasingly
11 barred from the necessities of life, what the recidivism
12 studies do show is that one of the main things that helps
13 them keep on track and not commit other crimes is the
14 ability to gain and to keep gainful employment. And we
15 would like to see House Bill 2549 amended in such a way
16 that it won't unnecessarily restrict the ability of people
17 with criminal records to find employment, that the vast
18 majority of them are able to do in a dedicated and safe
19 manner.
20 Thank you very much for the opportunity to allow
21 me to speak today.
22 MAJORITY CHAIRMAN HENNESSEY: Janet, thank you
23 very much for your testimony. That concludes the prepared
24 testimony that people are offering to the Committee, so I'm
25 going to invite the panelists to please come back, and 65
1 you're going to have to share mics, but if you'd all take
2 seats here on the table, we'll try to fire some questions
3 at you to figure out how we can better manicure this bill
4 and make it a little more acceptable.
5 We'll collect a list of people who want to ask
6 questions. Janet, since you testified last, I'm going to
7 direct my attention to you. I gather from your references
8 to the social service surveys and your testimony in
9 general, you don't approve of a lifetime ban for any crime,
10 or 25-year ban. How about a 10-year ban? Actually, in the
11 past we've had iterations where we went 25, 15, 10, and 5.
12 Somebody yesterday testified having four tiers, as we have
13 in 2549, which is lifetime, 25, 10, and 5, was too
14 confusing even though it's based on convictions of specific
15 crimes. And they're relatively easy to find out what the
16 conviction was for and then you simply plug it into a
17 category.
18 Tell me, from CLS's point of view, do you approve
19 of a 10-year ban? Do you think everything should be a 5-
20 year ban? And the more difficult question, I think, is how
21 would we as a committee or as legislators justify a 5-year
22 ban on something like criminal homicide or trafficking in
23 people, human trafficking? It would seem to me that there
24 are certain crimes, not necessarily all homicides because
25 some are done in passion and things like that, but they're 66
1 all things which the public would look at and say, oh my
2 God, how would we hire someone to take care of an elderly
3 dependent person if they have a conviction for some of
4 these crimes? I think it was homicide, rape, and
5 trafficking in human beings. It would seem to me that some
6 of those crimes just, you know, you don't belong. I would
7 think if you're convicted of that, you don't belong in that
8 kind of a personal services industry.
9 ATTORNEY GINZBERG: I would say that — can you
10 hear me?
11 MAJORITY CHAIRMAN HENNESSEY: Yeah.
12 ATTORNEY GINZBERG: I would say that CLS
13 recognizes -
14 MAJORITY CHAIRMAN HENNESSEY: Well, actually, I
15 don't know. Just push the button there. You'll see a
16 light. Now you got it.
17 ATTORNEY GINZBERG: Okay. CLS would recognize
18 that both politically speaking and from the standpoint of
19 whether something would pass constitutional muster that
20 there are bans that are appropriate. We would not think
21 that a 15-, a 10-, a 5-year tiered system would be
22 unreasonable.
23 MAJORITY CHAIRMAN HENNESSEY: I'm sorry. I have
24 a hearing problem myself.
25 ATTORNEY GINZBERG: I'm sorry. 67
1 MAJORITY CHAIRMAN HENNESSEY: So it's a little
2 hard... You wouldn't think that they were what?
3 ATTORNEY GINZBERG: Unreasonable. We would not
4 think that a 15, 10, and 5 -- that a tiered system of
5 perhaps 15, 10, 5 years would be unreasonable.
6 MAJORITY CHAIRMAN HENNESSEY: You're saying that
7 would be reasonable.
8 ATTORNEY GINZBERG: It would be reasonable.
9 MAJORITY CHAIRMAN HENNESSEY: Okay. Thank you.
10 ATTORNEY GINZBERG: Sorry for my lawyer-speak.
11 We do it in a double negative sometimes so that we're not
12 pinned down. But -
13 MAJORITY CHAIRMAN HENNESSEY: If I could think of
14 a double negative right now, I'd throw it back at you, but
15 I can't.
16 ATTORNEY GINZBERG: So we don't think it's
17 unreasonable to have tiers. We recognize that it is both
18 politically unpalatable and probably unwise for people with
19 the more serious crimes to be working five or even ten
20 years outside of their conviction and quite frankly,
21 employers aren't going to hire them, right? So it's not
22 like having lower bans means that the floodgates are going
23 to be open and people with the more serious crimes are
24 suddenly going to be employed everywhere.
25 MAJORITY CHAIRMAN HENNESSEY: Just if can 68
1 interrupt you for a second. I remember the headlines right
2 after the Peake decision was issued back in 2015. Early
3 ' 16 , my phone started ringing off the hook by people
4 calling and saying, "Oh my God. You're going to be allowed
5 -- it says in the newspaper you can hire murders to care
6 for my grandmother." You know, some of this thing has a
7 very difficult public perception issue that we all have to
8 deal with.
9 ATTORNEY GINZBERG: I understand that, which is
10 why I did not include in my testimony that the Commonwealth
11 Court has even said that a lifetime ban against someone
12 with a murder conviction was unconstitutional. Because I
13 do recognize that politically speaking, it doesn't sound
14 good. It doesn't look good. It's not something that most
15 people would feel comfortable with.
16 MAJORITY CHAIRMAN HENNESSEY: Right.
17 ATTORNEY GINZBERG: But given the social science
18 research and given what the Commonwealth Court has
19 consistently said about criminal records, we would argue
20 and we would -- probably the studies are very complicated
21 so most constituents, most of our clients, wouldn't
22 understand them, but the restrictions still need to be
23 rational. And while the lifetime bans and the 25-year bans
24 feel good and look good, they're just not rational given
25 what the social science research says. 69
1 We were very happy when we saw language a year or
2 so ago and some of the providers have drafted legislation
3 that had 15- and 10- and 5-year bans in them. Even those
4 bans we still think should be subject to a waiver process
5 because -
6 MAJORITY CHAIRMAN HENNESSEY: And they would be.
7 ATTORNEY GINZBERG: -- because they're always
8 individualized circumstances, even within those bans.
9 MAJORITY CHAIRMAN HENNESSEY: So even in the, I
10 guess, the lifetime and the 25-year ban as proposed in the
11 bill, they would be subject to the waiver process as well,
12 right?
13 ATTORNEY GINZBERG: They would be, yes.
14 MAJORITY CHAIRMAN HENNESSEY: Thank you. Anybody
15 else want to comment on that. We'll just move it along
16 then. Chairman Samuelson has a question for someone. Get
17 ready all.
18 MINORITY CHAIRMAN SAMUELSON: Oh my goodness.
19 I'll start with a question for Janet. You talked about
20 having the bans more related to the type of work that folks
21 were doing in a facility for seniors or care-dependent
22 person, and you pointed out the example of a DUI for a job
23 that doesn't involve driving. I would be interested if you
24 have other suggestions on the list that's contained in
25 House Bill 2549 for things that we should take another look 70
1 at that might not be directly related to the work that the
2 person would be doing.
3 ATTORNEY GINZBERG: Well, I certainly think that
4 the legislature for the most part has taken a list of
5 crimes that they see as presenting specific risks to care-
6 dependent individuals. A lot of them are theft-related.
7 Certainly theft is a big issue for older adults and
8 particularly those in facilities. Obviously, there's
9 crimes that appear to be violence-related. I think there
10 are some crimes, such as prostitution -- I will admit that
11 I am not involved enough in the facility world and the
12 older adult world to know whether somebody convicted of
13 prostitution is a huge risk, but I think at least that
14 should be tailored narrowly to whether they're working
15 directly with individuals. There's certain crimes that I
16 think someone isn't necessarily a risk if they're working
17 in the nutrition department or in a cafeteria and aren't
18 coming into direct contact with individuals.
19 MINORITY CHAIRMAN SAMUELSON: Okay. You also
20 talked about the length of time for an appeal, that folks
21 who are on one of these lists could appeal to the
22 Department of Aging, but you said 30 days was too long
23 because the employer is not going to hold a job open for 30
24 days waiting for that appeal process. Would it be
25 possible, in your view, to have an appeal that was 71
1 portable, that if somebody was approved for an appeal, it
2 wouldn't just be for one specific job, that you could use
3 it and not have to go through the 30 days each time you
4 apply for a job?
5 ATTORNEY GINZBERG: I have two responses to that.
6 One is that House Bill 2549 as written does allow people -
7 it is portable, but only for a maximum of three years. My
8 second response is that I suppose if there was some way for
9 people to apply for a general waiver even before they apply
10 for jobs. If people know that they want to work in
11 facilities and they can get a waiver that says they can
12 work in any covered facility, I would argue that it
13 shouldn't be connected to the three years, because once
14 someone has been deemed to be rehabilitated, assuming they
15 don't commit another crime in those three years, I don't
16 see why they would be any less rehabilitated three years
17 later.
18 I do repeat my concern, though, that people
19 aren't going to know about this process. They're not going
20 to know that they can go and get deemed eligible to work.
21 We do work with pardons all the time. We help people apply
22 for pardons, and the vast majority of our clients come into
23 our office not knowing that there is such a thing as the
24 pardon process and knowing that they can apply for a
25 pardon. They come into us because they're unable to get a 72
1 job and we say, "Your minor conviction is 20 years old.
2 Let's help you apply for a pardon."
3 So my concern, even with a preemptive waiver
4 process, is that people are just not going to know about it
5 and it won't be meaningful.
6 MINORITY CHAIRMAN SAMUELSON: And then I did have
7 a question for Diane Menio from CARIE. So I will -
8 Appreciate your tribute that you had for Bernice Soffer.
9 We saw the article this summer that talked about her life's
10 work and how she was on the forefront. Thirty years ago
11 she was talking about financial exploitation and care for
12 the socially neglected and the physically abused and also
13 spoke a long time ago about how we have to anticipate the
14 baby boomers becoming older. And I know you set up an
15 endowment fund at CARIE in her honor, so thank you for your
16 words.
17 You talked about her being an advocate for
18 mandatory reporting. We got into this subject a little bit
19 yesterday, her concerns about mandatory reporting. We were
20 talking about how to make sure that reports were received -
21 - and we were talking with some of the financial
22 institutions yesterday -- and make sure that the reports
23 were not missed because sometimes the teller, the person at
24 the counter, is the person who spots some unusual
25 transactions, some unusual withdrawals. And we went back 73
1 and forth about some of the laws that are in other states
2 about reporting. Just interested in your perspective on
3 that issue, how we make sure we don't miss some of those
4 cases that need attention.
5 MS. MENIO: I think we do support mandatory
6 reporting by banks. We've seen too many people come
7 through. We get calls from people who experience this kind
8 of fraud. One lady lost $350,000 to a scam and it was her
9 broker. You know, she was taking money from a brokerage
10 account. And you'd think that he might have noticed this
11 little lady who was elderly and kind of using up her life
12 savings over the course of about six months.
13 And so that shouldn't happen, and I think it gets
14 frustrating to some of us when we see this happening. When
15 I've talked to bankers about this, they said, well we can't
16 -- our bankers are our customer's privacy.
17 I know that I was traveling with my business card
18 once and I'm sitting in California and I pull out my card
19 to use it for the restaurant, and they come back to me and
20 say, oh, we can't use it. And then I find out that it was
21 stopped by the credit card company for some reason. It was
22 a fraud alert. I was using it, but anyway, I learned then
23 that I had to get them to send me a text to let me know so
24 I could tell them it's okay. But nevertheless, they're
25 watching that. I don't understand why they can't be 74
1 watching these accounts.
2 You're talking about tellers. We've had tellers
3 report, and I think that some of them are afraid, or they
4 don't understand even what's happening. A lot of them are
5 young and don't know how to discriminate from one
6 transaction to another. They definitely need training at
7 that level. But I also think we have to be all aware that
8 increasingly people aren't going to banks and using
9 tellers, and that's part of the reason. I think there
10 should be some kind of surveillance, some kind of way to
11 look at these accounts to see.
12 We had a lady -- this was actually, I think,
13 reported by the teller -- a lady in Philadelphia who lost
14 most of her money, and I think it was about $85,000. And
15 she had some guy move in with her. He said, I'll take care
16 of you, and she gave him access to her bank account to pay
17 her bills for her. She trusted him. And then the next
18 thing you know, he got a MAC card, an ATM card. Now this
19 lady never had an ATM card. That's not the way she banked.
20 So then he was going to the casinos. Somehow he must have
21 had a deal with somebody who worked at the ShopRite who
22 helped him get cash out of that card again and again and
23 again, a lot of money.
24 And so, those are the kind of things that you
25 would expect could be prevented if there was a little more 75
1 attention being paid. At least that one came as a report
2 from a teller because she was concerned about the money
3 going out of the account and this guy coming in and taking
4 money. So I do think that we need to -- mandatory is
5 always a challenge, but there needs to be some hook to get
6 these financial institutions to make these reports.
7 MAJORITY CHAIRMAN HENNESSEY: Okay.
8 Representative Nelson. I should also mention, we've been
9 joined by Dawn Keefer from York County and Cumberland
10 County is it?
11 HONORABLE DAWN WETZEL KEEFER: Yes.
12 MAJORITY CHAIRMAN HENNESSEY: Welcome. Eric, go
13 ahead.
14 REPRESENTATIVE NELSON: Thank you, Mr. Chairman.
15 MAJORITY CHAIRMAN HENNESSEY: Sure.
16 REPRESENTATIVE NELSON: I have a couple of
17 questions for the Committee. My first is a short one for
18 the AARP. When you had said that the inclusion of
19 background checks in a period for somebody to be hired
20 while they're waiting for their background check to come
21 through was something AARP opposes. In yesterday's
22 testimony, they talked about the new provider and the
23 excessive delays and struggles that employers are having in
24 getting that information. Is that opposition a hard "no"
25 that if this is included to try to achieve a balance to get 76
1 that reentry person a job and get this process rolling?
2 How hard is your "no" with that element?
3 MS. HUNG: That's contrary to our public policy.
4 We disagree with provision in the bill that provides for an
5 employment period while background checks are being
6 completed. I hope that answers your question.
7 REPRESENTATIVE NELSON: In following up, so does
8 that place your organization in direct opposition to the
9 bill if that remains?
10 MS. HUNG: No, that is one provision of the bill
11 that we have concerns with.
12 REPRESENTATIVE NELSON: Okay.
13 MS. HUNG: And I did state later on in my
14 testimony that we were supportive of these efforts, but we
15 just had a few concerns.
16 REPRESENTATIVE NELSON: Okay. I'm just trying to
17 envision as it comes to the floor and AARP opposes these
18 protections and, you know, often times a complex bill,
19 people can latch on to one thing and I can see myself
20 trying to explain to people -- well really, there's a
21 balance we're trying to achieve. So thank you very much.
22 MS. HUNG: Thank you.
23 REPRESENTATIVE NELSON: The second question is
24 associated with the elements of the ban, and I'm remiss in
25 missing your testimony earlier, but in your written 77
1 testimony, you had talked about the start date. Which I
2 thought was very good to be able to consider when we would
3 begin to apply those dates. It's something that we would
4 want to be able to include. But the lifetime ban elements,
5 or the 25-year ban, an individual who would be convicted of
6 a sexual assault against a senior would be a person that I
7 feel very strongly we would want to not run the risk that a
8 report says in seven years they wouldn't want to do it
9 anymore. I think there are certain elements that we do
10 want to have some longer controls about. And based off of
11 your earlier responses, is that something that you would be
12 in agreement to, or is it no -- 25 years? Because of the
13 scenario mentioned, if I'm a 22-year-old convicted rapist
14 of a senior, I'm out again. And if I don't fall into the
15 bell curve of a 7-year no longer wanting to do that again,
16 I could return. That's an area of concern for me. Can you
17 touch on that, please?
18 ATTORNEY GINZBERG: Sure. You know, I completely
19 understand the concern of wanting people with certain
20 crimes basically, to be barred essentially for life. I
21 guess what I would say is that that list of crimes would
22 have to be very, very narrow and very narrowly tailored.
23 As it stands, there are crimes, as I said, on the 25-year
24 ban -- it's a long list, and it's a long list of crimes
25 that people get convicted of all the time for reasons that, 78
1 as I said -- maybe you missed my testimony -- the
2 circumstances just aren't as serious as they sound.
3 Aggravated assault, endangering the welfare of children,
4 which sounds terrible. It really does. I have children.
5 You know, I understand the concern, but I have clients -
6 it is not unusual for people to get convicted of that
7 because the kid was in the room when they had a physical
8 fight with the other spouse, that sort of thing.
9 So, you know, could we live with the 25-year ban?
10 I would probably say, I'm not going to take it to court
11 again, partly because I'd like to retire one day, but also
12 partly because -- but for the very most serious crimes,
13 probably, I'd think, yes, I could see politically leaving
14 those in. But the list would have to be a lot narrower and
15 a lot shorter than it is now.
16 REPRESENTATIVE NELSON: One more question Mr.
17 Chairman?
18 MAJORITY CHAIRMAN HENNESSEY: Sure, go ahead.
19 REPRESENTATIVE NELSON: Thank you. Madam
20 Secretary, the aspect of your testimony with maintaining
21 victim-oriented values and principles, you know, the spirit
22 of what we're wanting to achieve, is there an example or a
23 way that you could kind of expand something that, you know,
24 that you have a concern that you would like to see included
25 in this to better underscore those values? 79
1 SECRETARY OSBORNE: Sure. I very much appreciate
2 that, and those who work most closely with me in this
3 space, they're going to say underneath their breaths right
4 now that I'm like a broken record. So they'll bear with
5 me.
6 To your really good question, I appreciate it.
7 When I started in this work, as I mentioned when I first
8 started my testimony, it was 28 years ago last month. I
9 still have my first two original training manuals. When
10 training manuals weren't online, they were training
11 manuals. And if I could have carried it over here today, I
12 would have. It's in my office. It's been with me for the
13 last 30 years now.
14 That being said, when the Older Adults Protective
15 Services Act was first passed, there was a major policy
16 piece written that underscored what the government, what
17 Pennsylvania, what the General Assembly and the
18 Administration at that time wanted to do with this law.
19 And that was very clear to me, both from the day of my
20 training to all these years later, in terms of the victim-
21 orientedness of the act, even with the amendments that have
22 occurred, constantly pivoting back to the older adult.
23 With some of the provisions as we read them, and reading
24 them and understanding them, I read this bill as I did
25 Senate Bill 899, as if this was passed today, how does the 80
1 Department of Aging with its network of Area Agencies on
2 Aging implement it? That's the lens of which we began our
3 review.
4 And doing that exercise was difficult at times
5 because of our reading of the Bill and our interpretation
6 of the Bill, and fifteen people can interpret the Bill
7 fifteen different ways at this point. But I was getting
8 down to, if we needed to implement it, then what's going to
9 be in that training manual, although training manuals today
10 are done a lot differently than they were all those years
11 ago. What's the underlying policy provision? What do we
12 want this law to be? What is its policy to pivot back to,
13 the needs, rights, protections of older Pennsylvanians? So
14 that's what I would like to work on with all of the
15 stakeholders who are in this room, those who testified
16 yesterday, and members of this committee who couldn't be
17 here today, of what we desire this to be because that to me
18 was missing. I couldn't quite hit that mark of good
19 enhancements that we want to get to. But where in the
20 midst of this is the voice of the senior? And that I think
21 we were all missing. And how are we going to get that back
22 into whatever Pennsylvania desires this law to be? So I
23 appreciate that.
24 REPRESENTATIVE NELSON: Thank you. Thank you for
25 the answers. Thank you, Mr. Chairman. 81
1 MAJORITY CHAIRMAN HENNESSEY: Thank you.
2 Representative Dush.
3 REPRESENTATIVE DUSH: Thank you, Chairman. I have
4 two questions, well, actually, one comment and a question.
5 Diane, you had it in your written testimony but it wasn't
6 touched on during your spoken... I think your idea of adding
7 under the sexual abuse should be amended to include
8 nonconsensual sexual contact with an older adult and any
9 sexual contact with an older adult not able to give
10 consent. That, I think, is an excellent provision that I'd
11 like to see added to this. Over the years since this law
12 was first enacted, there have been some revisions just
13 because of the sexual assaults and this stuff coming to
14 light. We've had some significant changes to the law, and
15 I think this is an excellent provision, and I wanted to
16 thank you for that.
17 Secretary, I can't think of a better way to
18 describe your advocacy than what Rebecca did. I can't
19 think of a better person to have been brought in to do
20 this. But I also want to hold up a mirror to the AAAs as
21 well. Your comments also reflect back to them.
22 This committee for me is my bright spot. We do
23 have a lot of people working together on this, and I want
24 to thank everybody.
25 My question to you, Secretary, is you raised a 82
1 concern about the financial services being given standing
2 in the court. Many times those financial institutions are
3 at the very forefront. They see it initially. And to
4 prevent the drains, like the three hundred and some
5 thousand dollars that took place, Diane described here
6 recently, I think having that standing and be able to go in
7 and put a stop to that immediately, I think, is important.
8 And I was wondering what your specific, and the
9 Administration's specific, oppositions are to that and any
10 suggestions we might have that would eliminate that
11 opposition.
12 SECRETARY OSBORNE: Sure. I appreciate, first,
13 your kind words. They mean a lot. Thank you.
14 To the standing part, for those of us who work
15 with the law for many years, and for those of us who
16 perhaps just started working with the law and were trained
17 last week, everything within the Older Adults Protective
18 Services Act pivots to the work of the Area Agencies on
19 Aging serving as the agent for the Pennsylvania Department
20 of Aging to uphold the provisions of the Older Adults
21 Protective Services Act. That being said, see great
22 opportunity and need for constant collaboration,
23 communication, coordination, my three favorite Cs, to work
24 with financial service entities as well as a myriad of
25 other stakeholders in this space such as a law enforcement 83
1 officials, such as judges, such as nurses, doctors, so on
2 and so forth. This is a multifaceted issue of how we're
3 going to solve the crimes against elderly. It's not just
4 about the Area Agency on Aging. We are just one piece of
5 it. Our agents are just one piece of it in terms of at the
6 end of the day, we're there to -- under the law as it
7 currently stands -- to take the steps necessary to reduce
8 or eliminate the risk, not to prosecute cases. That being
9 said, we desire a pathway to elder justice. That's why we
10 encourage counties across the Commonwealth to engage in
11 interdisciplinary teams on elder abuse, elder abuse task
12 forces, so that you're getting the people in your community
13 together so that regardless if you're in Potter County,
14 Indiana County, or Philadelphia County, any of the 67
15 counties, that your community is working together to meet
16 the needs of its older Pennsylvanians.
17 On my ride home last night, I did an event for
18 Senator Schwank and her district, and I had the opportunity
19 to read all the testimony that was rendered yesterday on my
20 ride back. I did not have that opportunity prior to
21 writing my testimony. I share that because in one of the
22 three banking testimonies that was rendered yesterday, and
23 I don't have it right here with me, but I read the example
24 that was shared in terms of how the banking entities were
25 getting their head around why they felt that this standing 84
1 in court was the best thing to do. And the testimony that
2 you all heard yesterday was specific testimony that pivoted
3 to laws in Florida.
4 When I read that last night, I couldn't get my
5 head around why that seemed like a good provision in this
6 bill. Not having that information prior to my testimony,
7 it is what it is; however, I think moving forward, which is
8 the beauty of hearings like this, that you're able to try
9 to get into the head a little bit more of all the advocates
10 who are incredibly passionate about this need. As one of
11 my dear mentors taught me, if passion in the room can solve
12 all of our problems, we would have no problems to solve.
13 So with all of the passion that's in this space,
14 with specific regard to your question, I'm not familiar
15 with the laws of Florida. I don't know if that particular
16 law that that particular person yesterday testified to is
17 embedded in its Older Adults Protective Services Act. I
18 don't know that. Or is it somewhere in a crimes act in
19 Florida. I don't know that, but to me, it's worth
20 pursuing.
21 My concern, though, to try to more directly
22 answer your question is, if our Act in Pennsylvania has
23 specifically given standing to the Area Agencies on Aging
24 as agents for the Department to go into court, whether it's
25 petitioning for an access to records, an access to persons, 85
1 an emergency involuntary intervention, or a petition to
2 enjoin interference, that's all the Area Agency on Aging
3 going in serving as that advocate, those boots on the
4 ground as Rebecca testified to, but to then have a
5 financial services entity that can go into court under the
6 provision of Protective Services. I agree, I think it's a
7 great and noble opportunity, but I worry about how that
8 meshes into current law. And as I mentioned to the good
9 question that was asked before, I look at that provision
10 and how do we implement this? If we're responsible, if
11 this is passed tomorrow and the governor signs it tomorrow,
12 that's the degree that I go to. Okay, my responsibility is
13 now to implement this law. How are we going to do that?
14 So I think there's great opportunity with, again,
15 the testimony that was rendered, everybody getting their
16 heads around where all of the feelings and emotions come
17 into this so that we can continue to move forward, and I
18 think we have a great opportunity to do that, as I said in
19 my testimony, under both bills. I think we're closer than
20 we probably realize that we are, in terms of how we as a
21 Commonwealth are going to ensure that our law is pivoting
22 to the needs, wants, desires, protections of older
23 Pennsylvanians under this massive umbrella of financial
24 exploitation hurting many of our seniors.
25 REPRESENTATIVE DUSH: Thank you, Madam Secretary. 86
1 I know Erin's got some explanations. Because she's been
2 working so tightly on this, I wouldn't mind, if she
3 wouldn't mind, explaining a little bit. But I am grateful
4 because I know you have been willing to work with everybody
5 to get this stuff done properly. And I do see, just with
6 Frank Ryan -- Representative Ryan and I were talking about
7 this last evening -- and there are some opportunities here,
8 I think, where some of the financial institutions -- It
9 would be a benefit for the immediacy in, like I said, with
10 a quick draining of somebody's account, for these financial
11 institutions to have that kind of standing, to go into the
12 court immediately instead of having to jump through some
13 additional steps.
14 That being said, I would appreciate if Erin
15 wouldn't mind touching on some of the things that she's
16 learned.
17 MS. RAUB: Yeah, sure. I can say that the
18 financial exploitation piece that is currently in the Bill
19 has been a proposal from the PA Bankers Association, the
20 credit unions association, and the community banks, and I
21 can certainly put you in touch with Ray Lynch who testified
22 on their behalf yesterday. He's kind of known around the
23 nation to know all of the different laws and how they are
24 enacted and how they affected those states. He made a
25 promise to us that he was going to stick around and help us 87
1 do some of those things. So he'd be more than willing,
2 we'd be more than willing to put you in touch with him so
3 we can continue that conversation since you weren' t able to
4 be here yesterday.
5 MAJORITY CHAIRMAN HENNESSEY: Madam Secretary,
6 I'm going to, sort of, add on to what Cris has indicated
7 and Eric. I'm a little confused, frankly, why the
8 Department of Aging would -- we're hearing that there's
9 been an increasing number of complaints over the 4-year
10 period from 2014 to 2018, from 20,000 to 28,000 call-ins,
11 complaints, and a large, a substantial number -- I don't
12 want to say large -- but a substantial number of financial
13 crimes or financial exploitation complaints.
14 We can solve that problem in a couple of ways.
15 Number one, we can increase the funding through the
16 Department so that we can hire more people, or try to
17 increase the training for the existing people, the existing
18 staff in the Department of Aging. Or we can try to, in a
19 sense, borrow from the financial services industry their
20 expertise, at least in the beginning. Because as we heard
21 yesterday time and time again, time is of the essence in
22 some of these situations where somebody's, their accounts,
23 their life savings is being quickly dissipated by an
24 avaricious son or nephew or niece or whoever. They need to
25 stop it, and they need to stop it quickly. If we say that 88
1 those people who see this happening have to come and
2 convince someone in the Department of Aging, who's
3 probably, in my experience, would be somebody who would
4 say, well, let me look into it and I'll get back to you.
5 And by the time they get back to them two days, three days,
6 four days later or a week later, there's more money missing
7 from that lady's account.
8 It just seems to me that we should employ the
9 expertise that's being offered by the banking industry and
10 say we can do this; we can do it quickly. We'll go in and
11 get a stop order from a court. We, perhaps, could handle
12 it, I'm thinking as I'm trying to think this through, that
13 we could allow them to have standing as far as going in and
14 getting the initial orders and then condition the retention
15 of standing on convincing someone in the Department of
16 Aging's bureau that this was a serious, a substantiated
17 complaint. I think sort of going along the lines of what
18 Mr. Shrimp had said, we should only allow the police
19 department to get involved or to require the AAAs to report
20 to police once they've made the initial determination that
21 it is a substantial complaint that's being filed.
22 When I read the testimony before the hearing this
23 morning, it sounds like we're setting up a turf war between
24 the Department of Aging and financial services industry as
25 to who should have the right to go in and seek a court 89
1 order. I think the answer to that is why don't we let the
2 financial services industry go in, get the court order
3 where it's necessary, and then if they want to prosecute
4 the case later on, have to convince someone in the
5 Department of Aging's bureau that this is a serious
6 intrusion on somebody's finances and work together with the
7 financial services industry to move the case along.
8 SECRETARY OSBORNE: Sure. I apologize if I added
9 any confusion when I presented my testimony as you read it.
10 That certainly wasn't my intention.
11 MAJORITY CHAIRMAN HENNESSEY: I wasn't confused.
12 I was just thinking that it sounds like a turf war.
13 SECRETARY OSBORNE: You started your comment, Mr.
14 Chairman, by saying you were confused when you read my
15 testimony, so I apologize for that.
16 MAJORITY CHAIRMAN HENNESSEY: Well, I was
17 surprised, maybe I should say that, because it just seemed
18 to me that we were talking about a turf war as opposed to
19 using the expertise that's available on a quick basis.
20 SECRETARY OSBORNE: Sure. I appreciate that, and
21 I have absolutely no desire whatsoever to be part of any
22 turf war with any stakeholder in this space. It is just
23 way too important. My concern in standing is the way that
24 the legislation is written, and we're only reading the
25 legislation and reacting to it. There's been no dialogue 90
1 as to how this gets implemented and what this means and
2 where we go moving forward. As I just explained to the
3 Representative, my concern is that historically for the
4 past 31 years, the standing to go into court on behalf of
5 the older adult has rested with the Department of Aging and
6 its agents. If there's a desire to change that, and
7 apparently there is in this space, in terms of financial
8 exploitation and banks. I agree, every day banks and their
9 tellers and their entities, whether they're doing online
10 banking or offline banking, have opportunity to review.
11 They have requirements under federal law to report. I
12 appreciate that and respect that very much.
13 And I don't know what the trigger is going to be
14 that a financial service entity is going to say, we now
15 have enough on our own without ever even seeing what else
16 is going on in this older adult's life, because that's not
17 their role; that's ours. So my desire is how are we going
18 to work together collaboratively in this space to
19 understand what those triggers are that the financial
20 institutions would implement? Right now, all I have is a
21 piece of legislation that says they can go into court and
22 petition for the provision of protective services. That to
23 me is the holder of the protective service law and the
24 Commonwealth of Pennsylvania. Until I better understand
25 what that means, how could I possibly say yes? Right now I 91
1 can only express my concerns about it.
2 We also know that every day Area Agencies on
3 Aging contact financial institutions across the 67 counties
4 of the Commonwealth and say, hey, we have concern that
5 money is being drained from this entity. Sometimes, the
6 response from any particular bank may be, you know what?
7 It was only $500. It was only $1000. You know, we're
8 good. I mean, it's not consistent in the responses that we
9 get. So I very much appreciate the opportunity to continue
10 dialogue with the banking institutions as to how this will
11 be consistently implemented across the 67 counties of the
12 Commonwealth and with the banks that rest within it.
13 I desire to have a law that's going to be there
14 for older Pennsylvanians and to use every tool in the
15 toolbox in order to get to that point. So my testimony
16 wasn't to create a rift or a turf war. My testimony was to
17 raise concern of the issues and then to set a standard for
18 how we're going to walk together in this journey moving
19 forward, to get a piece of legislation in Pennsylvania
20 that's going to benefit older Pennsylvanians using every
21 tool within that toolbox available to us. That includes
22 the financial institutions. It also includes law
23 enforcement. It also includes every stakeholder in every
24 community that's there to advocate on behalf.
25 So my testimony was to encourage additional 92
1 conversation and I'm grateful for that opportunity for that
2 to happen.
3 MAJORITY CHAIRMAN HENNESSEY: Okay. Another real
4 quick question. Have you been hearing anything about a
5 group called IdentoGO? We heard a number of people
6 yesterday complain about long delays in terms of processing
7 their paperwork, long delays and limited access to sites
8 that IdentoGO would accept fingerprinting from, which is, I
9 guess, the kick start of the background checks. People
10 were saying that the state has hired IdentoGO, but IdentoGO
11 is very limited in terms of where you can go to get your
12 fingerprints taken so that you can get your background
13 checks started and as a result of that, a long delay in
14 getting the background checks turned around so they can be
15 hired. Have you heard about that? If not, I just
16 mentioned it to you so you can look into it. But it was
17 new to us in terms of hearing it. I heard it for the first
18 time when they brought it to the attention of the Committee
19 yesterday.
20 SECRETARY OSBORNE: Right.
21 MAJORITY CHAIRMAN HENNESSEY: But you should be
22 aware that if you haven't -- maybe you're already on top of
23 that. I don't know.
24 SECRETARY OSBORNE: With any change, as the one
25 that was made to go to this new vendor, there is -- 93
1 Regularly with any change, there's concerns of
2 implementation and process and orientation so on and so
3 forth. So those concerns I have heard about since the
4 change was made; however, reading all of the testimony as I
5 just indicated that I did on my way back to Harrisburg last
6 night, I read with great cause and concern what you just
7 shared and have every commitment to share that testimony
8 with my sister state agency that's overseeing that procured
9 contract with that entity.
10 MAJORITY CHAIRMAN HENNESSEY: Okay. Can you tell
11 us, how long has IdentoGO been engaged by the Commonwealth?
12 SECRETARY OSBORNE: I believe it just took place
13 within the last year. Was it December 3rd? July 1 of last
14 year? This year?
15 MAJORITY CHAIRMAN HENNESSEY: So we're talking
16 two months then.
17 SECRETARY OSBORNE: With the last legislation
18 that was passed at the end of last year, correct Dave?
19 Right. Yeah. So it's not that long, yeah.
20 MAJORITY CHAIRMAN HENNESSEY: Okay. Well, I just
21 wanted you to be aware of it because people mentioned it to
22 us yesterday.
23 SECRETARY OSBORNE: Right. I would definitely
24 bring that back.
25 MAJORITY CHAIRMAN HENNESSEY: Representative 94
1 DeLissio.
2 REPRESENTATIVE DELISSIO: Thank you, Mr.
3 Chairman. One thing I'd like to reiterate -- I was glad to
4 hear the testifiers mention this today -- whether we're 20
5 or 90, we're entitled to make bad decisions. And there
6 should be nothing that intervenes with that ability to make
7 that bad decision. That is one thing I will be on the
8 lookout and high alert for as this legislation kind of
9 morphs, perhaps, over the next couple of weeks or months,
10 probably weeks. We don't really have months. And that
11 that individual's rights don't change because they're 90
12 than when they were 20.
13 And so often older adults are somehow perceived
14 as automatically in need of guidance, support, et cetera,
15 and that is just not the fact. So I really appreciated
16 hearing that time and again this morning a lot.
17 I want to focus on law enforcement a little bit
18 as I did yesterday. And I know that Erin has committed to
19 circle back to law enforcement, but I want a better
20 understanding of it, or to hear from you. Law enforcement
21 seems to have a role in this, yet, they aren't at the
22 table. My concern is that they're not exactly trained for
23 how nuanced this is. I almost liken it to some of the
24 conversations I've heard over the last eight years I've
25 been in office, to domestic abuse situations. Officers 95
1 show up at the door. They just are not trained. This is
2 an extremely nuanced, extremely specialized, this isn't
3 apprehending a would-be thief at the local five-and-dime
4 kind of thing.
5 So where this proposed legislation asks mandatory
6 reporters to report to law enforcement and lists no less
7 than eight or nine law enforcement possibilities, including
8 out-of-state law enforcement, my concern is there isn't a
9 gatekeeper. What if somebody reports to multiple law
10 enforcement because they got anxious and they called the DA
11 and the local precinct and the Attorney General's office?
12 Who's taking the lead? Law enforcement resources are so
13 limited now. I can't imagine people expending effort and
14 energy in a duplicative way.
15 So I need to understand what law enforcement's
16 role is in this, particularly as the Secretary describes
17 the AAAs as the agent as the law currently stands, where
18 this proposed legislation may be expanding that, maybe yes,
19 maybe no. What do you understand law enforcement's role
20 is, and how would that be coordinated or how would that
21 work to achieve the ultimate goal, which is protection and,
22 where appropriate, prosecution?
23 SECRETARY OSBORNE: Just yesterday,
24 Representative, I was with a group of really esteemed
25 colleagues, and if Chairman Hennessey didn't have to 96
1 oversee this hearing yesterday, he would have been with me
2 with the Supreme Court and the Elder Justice Advisory
3 Council that the Supreme Court has.
4 During a break that we had, there were several of
5 us that were speaking about a particular case in a
6 particular county. And I won't talk about that at this
7 given moment, but we talked about exactly what you just
8 said in terms of the role of law enforcement in cases of
9 financial exploitation and in cases of serious neglect of a
10 care-dependent person. And for all the years that I've
11 been engaged in this work, I've seen many positive things
12 happen, and I've seen opportunities where improvement needs
13 to be made.
14 To be certain, at the local level, each Area
15 Agency on Aging and the counties that they serve, the
16 planning and service areas that they serve, they're
17 required under the law to develop relationships with
18 entities, the stakeholders within their planning and
19 service areas, such as law enforcement, in terms of how
20 their plan, their local protective service plan, is going
21 to address the protective service needs of older adults in
22 their district. In many areas that works well, and in
23 other areas we know that there's dramatic improvement that
24 needs to be made.
25 When we read through the Bill, as I indicated, we 97
1 did a very rigorous -- I didn't use that word earlier -- we
2 did a very rigorous review, as we do with any legislation.
3 And for those who work on my staff, they might often be
4 ready to hang me on any given day because I require a line-
5 by-line item review. Always with the end of it, if we have
6 to implement this particular piece of legislation that
7 comes under our purview tomorrow, how are we going to do
8 it?
9 So I agree with you that law enforcement is
10 mentioned very regularly in the proposed legislation. And
11 we ask the same question of, how does law enforcement feel
12 about this? What's their reaction to this? And from law
13 enforcement in Pennsylvania, as we all know, there's many
14 good and noble and excellent law enforcement entities to
15 local communities across the Commonwealth. There's many
16 parts of our Commonwealth that rely upon the Pennsylvania
17 State Police in order to provide their law enforcement
18 protections.
19 We utilize Temple University Institute on
20 Protective Services. The Department has done this for
21 many, many years with an awesome relationship that we have
22 with them. In this space, though, of financial
23 exploitation, there's been a void of investigators for
24 police, whether it's the state police or a local police
25 entity, of not being trained, not being prepared, not 98
1 knowing how to handle these elder financial exploitation
2 cases. So for many years, we have paid via our contract to
3 Temple, because the Area Agencies on Aging couldn't simply
4 keep up with the demand and the expertise that these cases
5 require. And in some cases, we were kind of -- I was a
6 little worried about tipping the pendulum that we were
7 looking more for presenting a case to law enforcement that
8 they can prosecute and not always keeping our eye on the
9 ball of how to protect that older adult in need of
10 protective services. So we're striking that delicate
11 balance to provide a resource to law enforcement through
12 our contract with Temple so that -- Ron Costen's name was
13 mentioned a little bit earlier -- so that Ron and other
14 members of that staff -- and Ron is not a full-time member
15 of that staff anymore, but other folks that are there
16 working for Temple Institute continue to be a resource to
17 law enforcement when they get these elder financial
18 exploitation cases reported to them and how they're going
19 to do it. But our resources -- that's one person for 67
20 counties. And they're regularly trying to respond to
21 district attorneys, to Pennsylvania State Police, to other
22 law enforcement entities -- that we can provide that
23 resource to them.
24 There are some Area Agencies on Aging in order to
25 help law enforcement with that investigation that they're 99
1 doing while we're also ensuring that the needs of the older
2 adult is being assured of. There are some Area Agencies on
3 Aging that are also looking to their own fiscal officers,
4 and having them go through specific training where they are
5 forensic auditors -- they're trained now in forensic
6 auditing -- that they can then help the Area Agencies on
7 Aging staff, who is trained in protective services which
8 financial exploitation is a piece of our training, but it's
9 not the critique of law enforcement in terms of okay, this
10 happened, we can reduce or eliminate it via the tools that
11 we have in protective services including potentially a
12 financial institution being able to make a decision that
13 they can go into court. And how is all that going to work
14 together? And then what is the role of law enforcement and
15 do they understand it?
16 We've been working really closely with the
17 Pennsylvania State Police started under Colonel Blocker's
18 watch and continuing now under Lieutenant Colonel
19 Evanchick's watch with regard to how we get into their
20 training modules, how we get into the barracks across the
21 Commonwealth to train them on what is older adults
22 protective services. What tools do we have? Why is an
23 Area Agency on Aging calling them to say can you come out
24 on this call with me? Not just to do a wellness check, but
25 many of the homes that our Area Agency on Aging protective 10
1 service workers go into, they're at risk themselves going
2 into the home in various portions of our Commonwealth.
3 So we are trying to increase and enhance our
4 efforts in this space so that we are more of a partner with
5 law enforcement on the training front as well as the
6 execution front of the Older Adults Protective Services
7 Act. And again, the last piece of that is that pathway to
8 elder justice. So we all do have a role in it. And my
9 three favorite words that I'll pivot back to again, our
10 coordination, communication, collaboration has got to be
11 greatly enhanced in this space. And I think this committee
12 is a great opportunity to do that.
13 For example, even with our opportunity to talk to
14 the District Attorneys Association of Pennsylvania. They
15 have a stake in this too. We have many great district
16 attorneys who are part of elder justice task forces in many
17 areas of the Commonwealth as Representative Dush knows. We
18 have others that aren't. How are we going to get everybody
19 to the table because this is a Pennsylvania problem?
20 So I agree with you. We have a lot of work to
21 do, and we at the Department are but a piece of it. But
22 any ideas, thoughts, suggestions that members of the
23 Committee here today or who aren't here can give us
24 guidance and support in trying to get folks together at the
25 table as we will, as Erin mentioned, with banking 10
1 securities as well as with our DAs, as well as with other
2 law enforcement entities that I'm probably not just
3 thinking of right now. I think our opportunities are there
4 and with your help, we can forge better relationships and
5 make sure that they're trained and prepared for what this
6 new provision of Older Adults Protective Services Act
7 potentially could be.
8 MAJORITY CHAIRMAN HENNESSEY: Diane?
9 MS. MENIO: Would you mind? I wanted to just
10 respond to the first thing Representative DeLissio said was
11 that worrying about how many places people refer to
12 different -- which law enforcement agency or multiple. I
13 think we don't have the problem generally of reports to
14 multiple law enforcement. The problem we have is no
15 reports to law enforcement.
16 One of Janet's colleagues did some work on using
17 the open records law to get some police reports over a
18 course of, I think, about three years. And what he was
19 looking at was calls from nursing homes about reporting
20 sexual assault. And there were -- I don't know all the
21 numbers, but it was a significant number of calls that were
22 coming from nursing homes. What he tried to do was to
23 correlate that with complaints that went to the Department
24 of Health. Because they're required in nursing homes, not
25 only by state law to report, but also by federal law. And 1
1 there was no correlation whatsoever. And that's a serious
2 problem.
3 And so I will say, and I don't know if I should
4 say this, but when we went to the Department of Health,
5 they said well, it could have been a staff person who was
6 raped. Well, you know, it didn't seem that that could be
7 happening as many times as we saw these calls coming in.
8 So there is definitely a need for this training,
9 but I think that we also have to understand how to make the
10 rest of the -- we can talk about law enforcement and they
11 definitely need training, but we also need to make people
12 understand what their reporting responsibilities are. This
13 bill increases reporting responsibilities. And if we don't
14 take it seriously, they're not going to get reported.
15 Because I can tell you, many of them are not reported now.
16 So that's, I think, the big problem.
17 MS. RAUB: And Representative DeLissio, I believe
18 you already know this, but there are elder abuse task
19 forces in, I think, about 30 counties across the state. We
20 actually did an LBFC study on it a couple years ago if you
21 want to go back and look at that. And the Temple Institute
22 on Protective Services actually offers that to counties
23 that if they're looking to establish that type of
24 multidisciplinary task force that includes the AAAs and the
25 DA and local law enforcement and local advocacy groups, 1
1 they will assist in setting that up as well.
2 I know last session when we did discuss the law
3 enforcement issue, we did have Representative Jozwiak on
4 the Committee, and he, being a former state trooper for
5 twenty-five years, did mention that one of the courses
6 offered in MPOETC for the municipal officers for their
7 continuing education, that elder abuse is one of the
8 courses they do offer, but there are a multitude of
9 continuing education options for them. But he did mention
10 that as well. And the Temple Institute on Protective
11 services offers training for solicitors and DAs as well on
12 elder abuse.
13 MR. SHRIMP: If I could comment. From a AAA point
14 of view, I know locally, our state police, local police
15 forces, have always been very responsive to calls from our
16 office. And that's one of the things that AAAs are
17 concerned about when it comes to mandatory reporting to
18 police, is if there hasn't already been -- if there's not a
19 reason to definitely call them, why call them and involve
20 them when they have other duties that they need to be
21 performing to protect the community? So that's why in
22 general, in most cases, AAAs want to have the opportunity
23 to do a protective service investigation first before
24 having to call the police because we don't want the police
25 to get worn out with calls that turn out to be frivolous or 1
1 somebody trying to -- a disgruntled employee complaining
2 about a facility.
3 I can tell you that locally, we've had several
4 police -- the facilities have told us themselves because
5 they overdo the mandatory reporting that for almost
6 anything that they report to the Office of Aging, they make
7 a report to the Department of Aging and they make a report
8 to the local police. And the local police often tell them,
9 don't call us. This is a waste of our time to have to come
10 up here because there's nothing that's happened.
11 So from a AAA point of view, we don't want to
12 ruin our relationship, that we currently have with police,
13 by having them involved in things where they're going to
14 come and say, why are we here?
15 MAJORITY CHAIRMAN HENNESSEY: Madam Secretary, I
16 have a question. I was interested in your comments about
17 the Community Care website that the Department of Aging is
18 developing. If somebody comes in to me and says, I want to
19 be involved in the provision of home services. How does a
20 person -- what do they do? Do they just go to the website
21 and register?
22 SECRETARY OSBORNE: Well, right now when we
23 propped up the website on the PA Link to Community Care, it
24 is only right now functional for agencies, agencies that
25 provide a whole array of home and community-based services 1
1 in their particular community.
2 MAJORITY CHAIRMAN HENNESSEY: Okay.
3 SECRETARY OSBORNE: Our desire is to have the
4 functionality expanded. Whereby in the PA Link to
5 Community Care, if -- I'll use myself as an example. If
6 I'm a person who loves to serve as a caregiver and I took
7 care of my mom and provided all of her care needs at home.
8 She hired me under the consumer employee program and my mom
9 passed away. But I found I had a passion for this. And I
10 know some other older adults within my community that I
11 think I could be available to them. How do they know that
12 I'm available? The functionality of what we desire, the PA
13 Link to Community Care would be, that I could go on the
14 website. There's tutorial built within it -- well, when
15 that site is functioning. Right now, we're concerned about
16 the lack of a criminal history background check piece and
17 we couldn't add functionality to that because of the
18 Commonwealth Court decision, so we had to hold that side up
19 of implementing that piece of the functionality of the PA
20 Link to Community Care. But there is a tutorial that if I
21 want to have my information on the PA Link to Community
22 Care, the Commonwealth's website, to link older adults with
23 caregivers available in their community on the consumer
24 employee model, that I would go through the tutorial.
25 There's a vetting process that's in place between our 10
1 office at the Department of Aging or Aging and Disability
2 Resource Centers in collaboration with the Office of Long
3 Term Living, then after that vetting process is over, my
4 information would be built into this PA Link to Community
5 Care.
6 MAJORITY CHAIRMAN HENNESSEY: The person, the
7 individual, if it wasn't -- you apply, because of your
8 experience with your mother, you're going to be approved.
9 But if Mary Jacobs out of Cumberland County applies, she's
10 got to go through a process? And essentially, she has to
11 be approved by the Department of Aging before she would be
12 allowed to be put on this list?
13 SECRETARY OSBORNE: Anybody has to go through the
14 vetting process whether you've engaged in this work before
15 or no. And the services -
16 MAJORITY CHAIRMAN HENNESSEY: And what is the
17 vetting process? That's what I'm asking. I'm trying to
18 figure out whether or not I could say, I want to do this -
19 SECRETARY OSBORNE: Sure.
20 MAJORITY CHAIRMAN HENNESSEY: If I ever retire
21 from here, right?
22 SECRETARY OSBORNE: Yeah. We might be in the —
23 MAJORITY CHAIRMAN HENNESSEY: Do I have to be
24 certified by someone?
25 SECRETARY OSBORNE: Sure. 1
1 MAJORITY CHAIRMAN HENNESSEY: Do I have to bring
2 in credentials to tell you that, you know what, Hennessey
3 might be a good person to be on this list and so we'll
4 approve him or disapprove him for whatever reason.
5 SECRETARY OSBORNE: Sure. I appreciate that, and
6 we'll certainly follow up with the Committee with the exact
7 vetting process that folks would go through. This piece of
8 the PA Link to Community Care website is not functioning at
9 this particular point in time.
10 MAJORITY CHAIRMAN HENNESSEY: It's still in
11 development. Yeah, I understand.
12 SECRETARY OSBORNE: It's something that we desire
13 to prop up. But there is a vetting process. We have it.
14 I can't speak articulately to it as I sit here before you
15 today, but we'll get it over to the Committee.
16 MAJORITY CHAIRMAN HENNESSEY: I think it would be
17 interesting to know because -
18 SECRETARY OSBORNE: Absolutely.
19 MAJORITY CHAIRMAN HENNESSEY: -- obviously for the
20 agencies that are there, do you screen them as well?
21 SECRETARY OSBORNE: That'll be in the same
22 information that we send over to you. Yes.
23 MAJORITY CHAIRMAN HENNESSEY: Okay. But that's
24 already in existence?
25 SECRETARY OSBORNE: Correct. The agency model 10
1 side is already in existence.
2 MAJORITY CHAIRMAN HENNESSEY: So we'll have
3 something to work from.
4 SECRETARY OSBORNE: Right.
5 MAJORITY CHAIRMAN HENNESSEY: Okay. Thank you.
6 Chairman Samuelson, you had a question.
7 MINORITY CHAIRMAN SAMUELSON: Sure. Do you need
8 references?
9 MAJORITY CHAIRMAN HENNESSEY: It depends on what
10 job you're referring me for.
11 MINORITY CHAIRMAN SAMUELSON: On that same
12 question, the PA Link to Community Care, I think you said
13 you're right now prohibited from adding a background check
14 piece to that, the home care registry is a possibility?
15 SECRETARY OSBORNE: No -
16 MINORITY CHAIRMAN SAMUELSON: Is that something
17 we can address in this legislation?
18 SECRETARY OSBORNE: -- not a formal prohibition.
19 Nobody said, don't do this because of this. It was our
20 concern that when December 30, 2015 came, and we were
21 developing the website at that time, and said that this
22 section of our law 503 -- which is the daily number that I
23 play every day since December 30, 2015 -- that 503a was
24 determined to be unconstitutional. We kind of paused to
25 say, okay, we need to fix what's currently in existence 10
1 with criminal history background checks before we ever give
2 functionality to this. So it wasn't a formal prohibition
3 that anybody said, don't do this.
4 MINORITY CHAIRMAN SAMUELSON: Okay.
5 SECRETARY OSBORNE: It was our own internal
6 thinking of what's going to work best for the protection of
7 older Pennsylvanians?
8 MINORITY CHAIRMAN SAMUELSON: Two-four-one-eight
9 is the day the Eagles won, so just...
10 SECRETARY OSBORNE: Is that the number you're
11 playing? As long as you're playing.
12 MINORITY CHAIRMAN SAMUELSON: Are you saying that
13 we could add a section to this bill to say that we should
14 have the background checks on the registry?
15 SECRETARY OSBORNE: In Senate Bill 899, actually,
16 the home care directory is part of that particular piece of
17 legislation. It is not currently in this House bill.
18 MINORITY CHAIRMAN SAMUELSON: Okay. We'll take a
19 look at that.
20 MS. MENIO: I do think we do support that. We
21 put that in our testimony as well. Consumers need to know
22 that they can trust the people that they hire, -
23 MINORITY CHAIRMAN SAMUELSON: Okay.
24 MS. MENIO: -- or that they can ask questions of
25 them. 11
1 MINORITY CHAIRMAN SAMUELSON: Two more questions,
2 one about consent, and one about resources. On consent, I
3 heard, I think from a couple, the Secretary, Mr. Shrimp,
4 about -- are you saying that the ability -- that this bill
5 might have a change in current law where currently the
6 senior has to consent to an investigation, the access to
7 their financial records, and whether or not there's
8 prosecution or civil action, and this would open up the
9 door where it could be done without the victim's consent?
10 SECRETARY OSBORNE: I didn't testify to that
11 specifically. I think Fred touched on it in his verbal.
12 MR. SHRIMP: It could be that the language -- in
13 reading it as a non-lawyer -- the language says that the -
14 and Erin has it there -- that the AAA has access to the
15 information regarding the older adult in number one, and
16 then in number two, it says with the consent of the older
17 adult. So it just leaves a vagueness there as to whether
18 we have rights to records apart from their consent or only
19 with their consent. And I would just -
20 MS. RAUB: Right, Chairman, and we did discuss
21 that with him last week so we are going to address that
22 because that does add some type of confusion.
23 MINORITY CHAIRMAN SAMUELSON: Okay. And the
24 final thing I wanted to point out is that probably a
25 parallel discussion we should have about resources. I 11
1 heard in the Secretary's testimony about the number of
2 requests for protective services going from 20,000 to
3 28,000 in just a 2-year period, a 42 percent increase, and
4 the challenge of dealing with that with current resources.
5 And I know Rebecca May-Cole testified from the AAAs about
6 how we had a new infusion of $2.1 million dollars in the
7 state budget. The good news, we were doing the math over
8 here and we figured out that's only 41,000 per Area Agency
9 on Aging which doesn't go far if you're planning a long
10 term enhancement of resources.
11 So I realize that's probably more of a budget
12 discussion, but I think you both were testifying about the
13 current need, notwithstanding what might be added with this
14 legislation. I just wanted to give you an additional
15 opportunity to comment on the need for resources, or that
16 we should pay continued attention to that.
17 SECRETARY OSBORNE: I appreciate that, and I
18 thank both this body as well as the entire General Assembly
19 as I journeyed through my four years of budget hearings
20 both in the Senate and the House. It's something that I've
21 had opportunity to touch on with regard to both the Older
22 Americans Act funding that we receive from the federal
23 government, which is approximately 25 percent of our
24 budget, versus the 75 percent that comes from the lottery
25 fund, and our gratitude to those loyal lottery players that 1
1 ensure that we have funds in order to utilize them well and
2 wisely, not just for protective services, but as Rebecca
3 testified to, to the array of services that Area Agencies
4 on Aging are required to provide under the Older Americans
5 Act as well as other responsibilities to Pennsylvania code.
6 To that end, absolutely we were grateful, as I
7 mentioned, and Rebecca also touched on it, with regard to
8 advocating for an increase in very tight times that the
9 Commonwealth is experiencing. So the 2.1 million that was
10 earmarked specifically in our budget for Area Agencies on
11 Aging -- it wasn't for the Department of Aging
12 administrative costs, it was Area Agency on Aging to get
13 this money out. And in my commitment an every conversation
14 I had with P4A leadership about this was that if we
15 successfully secure these funds, we need to be as creative,
16 as diligently as we can, to be as flexible as we can.
17 Realizing if we simply said we received $2.1 million and
18 everybody gets a fair share of the pie -- I had other AAAs
19 say to me, but apply the funding formula. Well, if we
20 apply the funding formula, we would have one particular
21 Area Agency on Aging receive well over $1.5 million of
22 $2.1.
23 So that's why Rebecca mentioned, we like to
24 communicate with the network in terms of what are your
25 needs. We have some Area Agencies on Aging that are 11
1 struggling to be in conformity and compliance with the law
2 and we want to be supportive to them. We have others that
3 have some creative thoughts, as I mentioned earlier, in
4 terms of using their forensic auditor that helps them
5 ensure that every dollar is being spent well and wisely.
6 They have some skills and some resources that can help the
7 rest of the agency and use money to do that.
8 Anyway, we're trying to be as creative as
9 possible. Obviously, we're already going into the next
10 budget year. And already we're laying foundation with the
11 governor's budget office with regard to the needs of our
12 department including building upon that. That's been our
13 advocacy approach that we talked about with P4A and with
14 other stakeholders that are willing to work with us.
15 MINORITY CHAIRMAN SAMUELSON: I guess I should
16 ask the timeframe for the distribution of the $2.1 million
17 from the current budget year.
18 SECRETARY OSBORNE: We expect to hear from all
19 the Area Agencies on Aging. We've heard from a lot of them
20 already, but our deadline, so to say, of our request was to
21 let us know by tomorrow so that we can review them
22 internally, have additional conversations with P4A, and
23 then get that money out on the street because we're already
24 -- it's September, so for all intents and purposes, the
25 first quarter of the fiscal year -- we want to get that 11
1 money out sooner rather than later, so we will do that
2 without delay, as diligently as possible.
3 MAJORITY CHAIRMAN HENNESSEY: Thank you. I don't
4 see any other questions except for mine. I have one, at
5 least a comment. You have a question? Go ahead.
6 REPRESENTATIVE DUSH: Thank you, Chairman.
7 Secretary, you said about forensic auditors and one of the
8 things that the elder abuse, financial abuse, some of those
9 examinations can take some skill and specialized training.
10 How are we as far as having people that are trained and
11 certified forensic accountants, that sort of thing, that
12 are capable? Do we have the resources to the AAAs? Are
13 there sufficient people out there, because I know in some
14 other areas, it seems to be lacking?
15 SECRETARY OSBORNE: Sure. I appreciate that and
16 some of my peers yesterday, as I mentioned, that we were at
17 our Supreme Court Elder Justice Advisory Committee meeting,
18 commented to me that there's lots of resources available
19 and here are some suggestions of how to tap into them. So
20 we have some work to do.
21 Currently, however, and I would certainly look to
22 P4A to help me with this, I know of one Area Agency on
23 Aging that probably when I go back to my office would have
24 already left me a message saying thank you for not
25 mentioning my county by name, so I'm not going to do that. 11
1 But this particular county that shared with us how they
2 were stuck with their investigators understanding how to
3 investigate a case and realizing that there's financial
4 exploitation that occurred and taking a quick step to
5 reduce or eliminate it, but feeling that there's more
6 underneath the surface of what was going on and that a
7 crime was probably committed. Well, law enforcement will
8 regularly say to us -- and that's a pretty broad stroke I
9 just made. I'm sensitive to that. -- Law enforcement will
10 regularly say to the Aging networks, we need more; can you
11 do this, can you do this, can you get these records, can
12 you get... So while we're protecting the older adults, then
13 that work is evolving in terms of trying to be supportive
14 to law enforcement. Whereas forensic auditors, we feel,
15 have special experience and expertise. Unless we want to
16 take the step that we're going to enhance our training so
17 much that every protective service worker across the
18 Commonwealth is going to be trained to be a forensic
19 auditor. I mean these are the things that we talk about.
20 That's why we -- years ago it wasn't our doing in
21 this current administration -- but we continued the
22 tradition and want to increase it where we can but every
23 increase cost dollars, so we're sensitive to that as well.
24 Which is why we've been using Temple Institute on
25 Protective Services for the assistance to law enforcement 11
1 on financial exploitation cases of the elderly as well as
2 the other things that Erin just so well described. In
3 terms of, we want to have resources available to our
4 counties to have an elder justice advisory committee or
5 have an elder justice task force.
6 And many counties are doing it, we'd love to have
7 one in every county. So that's what Temple is doing for
8 us. So maybe it's through Temple. Maybe it's through the
9 Area Agency on Aging. Maybe it's through forensic
10 auditors. Maybe it's through a partnership that we haven't
11 identified yet. But it's a big problem in Pennsylvania,
12 and we need to better with it. And so we could certainly
13 survey the network and see -- other than the one I
14 mentioned and won't through under the bus here -- but we
15 can continue to explore those opportunities. Because I do
16 think that they're there, we just need to capitalize upon
17 them.
18 REPRESENTATIVE DUSH: Thank you.
19 MAJORITY CHAIRMAN HENNESSEY: Representative
20 DeLissio.
21 REPRESENTATIVE DELISSIO: Just a quick idea,
22 Secretary, when you say how do we deliver the service. The
23 Department delivers a pretty successful APPRISE program
24 currently, primarily with volunteers, also with some paid
25 staff. There are a lot of retired people who have 11
1 accounting backgrounds. Maybe the APPRISE model could be
2 that model to produce those forensic auditor types who
3 could be trained and super-focus on this and be a resource.
4 So, my two cents' worth.
5 SECRETARY OSBORNE: I appreciate that. With 2.5
6 million Medicare beneficiaries, it's a lot of volunteers
7 that we rely upon across the 67 counties to help them
8 navigate through that system. And I'm grateful to have
9 this dialog in a setting such as this and a hearing such as
10 this. So for all those folks that are watching on PCN, I'm
11 trusting that folks will reach out to us and say here's a
12 potential solution. So I'm grateful for the forum.
13 MAJORITY CHAIRMAN HENNESSEY: Sure. I have one
14 final question to wrap this up, and that I'm going to
15 direct it to Janet, but I realize that I'm standing between
16 the rest of the panel and lunch and all that kind of stuff,
17 so I'll try to make it rather quick.
18 There was some question raised yesterday about
19 whether or not the time limits, the 10-year, the 5-year
20 ban, the 25-year, should run from the date of conviction,
21 from the date that somebody's released from confinement,
22 whether or not they're on supervision for a period of time
23 after that.
24 You have situations where someone could get
25 sentenced to 3 to 23 months in jail. When I was with the 11
1 public defender's office, it was routine that simply most
2 county judges would say it was a 23-month sentence in terms
3 of the maximum. But it was not uncommon for judges to say
4 and after that we're going to put a 5-year consecutive
5 probation, which would have the effect of saying if we ran
6 it from the end of the 23 months, a 5-year ban becomes
7 essentially a 7-year ban. If we run it from the end of the
8 5-year consecutive probation, it becomes -- a 5-year ban
9 becomes, I guess, a 12-year ban. I'll do the math in my
10 head fast.
11 You know, there doesn't seem to be any
12 consistency in the way we would look at that. In a state
13 sentence, somebody might give 2-5 years, somebody else
14 might give 2-10 years. Some other judge might just want to
15 have what we call a longer tail on somebody.
16 That's why we chose the date of conviction.
17 Because that's easy for everybody to understand and makes
18 it much more definite in terms of employers looking at it.
19 They know when the time limit would expire as opposed to
20 sending them off to the courts to try to figure out whether
21 or not this person has really been released from parole or
22 probation supervision.
23 That's why we -- and I would think, given the
24 bent of your testimony, you would probably weigh in on the
25 side of staying with the date of conviction as probably the 11
1 easiest start date from that time-limit ban to figure out.
2 ATTORNEY GINZBERG: I could tell you that in our
3 experience it's almost impossible for people to prove the
4 date of release.
5 MAJORITY CHAIRMAN HENNESSEY: I'm sorry.
6 ATTORNEY GINZBERG: In our experience it's almost
7 impossible for people to prove the date of release or the
8 date of the end of a sentence. Documents are not held well
9 by either the prisons or the probation and parole offices.
10 So we support the date of conviction as being the date,
11 both because it's simpler and cleaner and also because most
12 people who have convictions don't spend any time in jail so
13 date of release is not even a relevant statistic for them,
14 they don't have one.
15 MAJORITY CHAIRMAN HENNESSEY: Well, release from
16 supervision -
17 ATTORNEY GINZBERG: -- or from supervision. We
18 have had -- it's not unusual for employers to come to our
19 clients and say we want to know when your supervision or
20 sentence ended. And they'll come to us for help and it's
21 very difficult to find out what that date is.
22 MAJORITY CHAIRMAN HENNESSEY: Well, I just want
23 you to -- that's why we chose the date of conviction
24 because it's simply easier to access.
25 ATTORNEY GINZBERG: Right. 12
1 MAJORITY CHAIRMAN HENNESSEY: With that, I don't
2 see any other questioners, so let me thank you all for your
3 testimony today. Your testimonies, in addition to what we
4 heard yesterday, I think will help us take another hard
5 look at this bill and maybe come up with an even better
6 bill. But I thank you for the time you've spent here, and
7 I hope we didn't delay you too long, and thank you again
8 for your testimony. And with that, our meeting is
9 adjourned.
10
11 (Hearing concluded at 12:18 p.m.)
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C E R T I F I C A T E
I hereby certify that the foregoing proceedings are a true and accurate transcription produced from audio on the said proceedings and that this is a correct transcript of the same.
Jennifer J. Ferenz
Transcriptionist
Opti-Script, Inc.