Older Adults Protective Services Act

Older Adults Protective Services Act

Older Adults Protective Services Act

In the case of McLaughlin v. Garden Spot Village of Akron d/b/a Maple Farm Nursing Center, the Pennsylvania Superior Court denied the defendant nursing home's attempt to shield its employee from testifying about the employee's report of abuse of an elderly resident to the Lancaster County Office of Aging. Plaintiffs, Ms. Vickie McLaughlin and Carol L. MacConnell, as co-administratrices of the estate of Dorothy L. Brace, sued the nursing home, and Glenn Hershey, a former resident of the nursing home after Hershey sexually assaulted Brace during their residency.  Hershey was a registered sex offender before he assaulted Brace. Hershey subsequently pled guilty to involuntary deviate sexual intercourse and received a sentence of eight to 20 years of incarceration. Brace passed away 10 months after the assault from unrelated causes. Plaintiffs alleged that the nursing home was aware of the threat Hershey posed to Brace. Plaintiffs sought to depose Carrie Kneisley, a nursing home employee, and examine her about what she told the office of aging.  The nursing home filed a motion for a protective order, arguing Kneisley’s testimony is privileged under the Older Adults Protective Services Act, 35 P.S. § 10225.101 (the "Act"). The trial court denied the nursing home's motion and permitted the deposition to go forward under seal. The nursing home filed an immediate appeal to the PA Superior Court. Section 302(d) of the Act provides, “Any person participating in the making of a report or who provides testimony in any administrative or judicial proceeding arising out of a report shall be immune from any civil or criminal liability on account of the report or testimony unless the person acted in bad faith or with malicious purpose.” 35 P.S. § 10225.302(d). Analyzing § 302(d), the court determined that Section 302(d) protects persons who become witnesses in a judicial proceeding from criminal or civil liability based on their testimony, but does not preclude their testimony. Chapter seven of the Act (“Reporting Suspected Abuse by Employees”) addresses employee reports of abuse of recipients. 35 P.S. § 10225.701(a)(1).  Section 701 requires an employee to report suspected abuse of a recipient to the agency and potentially to law enforcement. 35 P.S. § 10225.701(a), (b). Section 705 governs the confidentiality of reports made under Chapter 7. The court held that if Kneisley made such a report, §705 protects the confidentiality of that report. § 705(e) also precludes the “release of data” that would identify the reporter. 35 P.S. § 10225.705(e). In this case however, the court concluded that § 705 cannot support the nursing home's argument because Plaintiffs are not seeking an agency report.  The court found nothing in § 705(e) that prevents Kneisley from testifying in a civil action arising from the alleged abuse.