Tuesday, July 3, 2018

Act 53 Expands Pennsylvania Law on Neglect and Abuse of Care Dependent Persons

[The following article was written by Tammy A Weber, Managing Attorney of Marshall, Parker and Weber. Ms. Weber is currently the chair of the  Pennsylvania Bar Association’s Elder Law Section].

Neglect and abuse of care-dependent persons by caretakers is an unfortunate and sad reality.  Act 53 of 2018 expands the scope of the criminal offense of certain neglect or abuse of a care-dependent person by a caretaker as well as the definition of caretaker.  The legislation was introduced May 5, 2017 as HB 1124, was unanimously passed by the House last session, amended by the Senate on June 18, signed in the Senate and in the House after unanimous votes, presented to the Governor on June 22, and signed by him on June 28, 2018.  Act 53 takes effect in 60 days. 

Under the current section 2713 of the Crimes Code, a caretaker commits the offense of neglect of a care-dependent person if the caretaker intentionally, knowingly or recklessly causes bodily injury by failing to provide treatment, care, goods or services necessary to the health, safety or welfare of the care-dependent person or intentionally or knowingly uses physical restraint, chemical restraint or isolates a care-dependent person contrary to law or regulations such that bodily injury results.

According to the legislation, “[t]he General Assembly finds and declares that it is the legislative intent in enacting this act that a distinction should be recognized between intentional acts and negligent acts, particularly when this act is enforced against family members of a care-dependent person who are not trained to provide care.”

Act 53 adds an additional offense definition under 2713(a)(3) in which a caretaker would commit the offense of neglect.  That is, if the caretaker “intentionally, knowingly or recklessly endangers the welfare of a care-dependent person for whom he is responsible by failing to provide treatment, care, goods or services necessary to preserve the health, safety or welfare of the care-dependent person.”  A violation of this would be a second degree misdemeanor, punishable by up to two (2) years’ imprisonment and/or a fine of $5,000.00.  If there is a determination of a course of conduct of this offense, the penalty increases to a third degree felony, punishable by up to seven (7) years’ imprisonment and/or a fine of up to $15,000.00.

The caretaker definition is expanded and now includes “an adult who resides with a care-dependent person and who has a legal duty to provide care or who has voluntarily assumed an obligation to provide care because of a familial relationship, contract or court order” and “an adult who does not reside with a care-dependent person but who has a legal duty to provide care or who has affirmatively assumed a responsibility for care, or who has responsibility by contract or court order.”

The new offense under 2713.1 is triggered by a caretaker who acts with the intention to harass, annoy or alarm a care-dependent person and who:

(i)      strikes, shoves, kicks or otherwise subjects or attempts to subject a care-dependent person to or threatens a care-dependent person with physical contact;
(ii)     engages in a course of conduct or repeatedly commits acts that serve no legitimate purpose;
(iii)     communicates to a care-dependent person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures; or
(iv)    communicates repeatedly with the care-dependent person at extremely inconvenient hours.

If the person is convicted under this new subsection, it would be a first degree misdemeanor, punishable by up to five (5) years’ imprisonment and/or a fine of up to $10,000.00.  Act 53 establishes a third degree felony for a caretaker who commits the offense of stalking against a care-dependent person.

If during an investigation, the Departments of Aging, Health or Human Services have reasonable cause to believe a caretaker has violated this section, a report shall be made immediately to local law enforcement or to the Office of the Attorney General. 

According to 2016 sentencing data from the Pennsylvania Commission on Sentencing, there were 11 convictions under Section 2713, 10 were misdemeanors of the first degree and one was a felony of the first degree.  Nine of those convicted received probation; one received county intermediate punishment and one received a county jail prison sentence.

We are hopeful that more caretakers who commit the above-described acts will be held accountable.

Tammy A. Weber is a Certified Elder Law Attorney and the Managing Attorney of the law firm of Marshall, Parker & Weber, LLC with offices in Williamsport, Wilkes-Barre, Jersey Shore and Scranton. For more information visit www.paelderlaw.com or call 1-800-401-4552.

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