CSHB 376(JUD): "An Act relating to services for and protection of vulnerable adults; and providing for an effective date."
00CS FOR HOUSE BILL NO. 376(JUD) 01 "An Act relating to services for and protection of vulnerable adults; and 02 providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 08.86.200(b) is amended to read: 05 (b) Notwithstanding (a) of this section, a psychologist or psychological 06 associate shall report to the appropriate authority incidents of child abuse or neglect 07 as required by AS 47.17.020, incidents of [ELDER] abuse of a vulnerable adult as 08 required by AS 47.24.010, and incidents of abuse of disabled persons disclosed to the 09 psychologist or psychological associate by a client. In this subsection "disabled 10 person" means a person who has a physical or mental disability or a physical or mental 11 impairment, as defined in AS 18.80.300. 12 * Sec. 2. AS 47.24.010(a) is amended to read: 13 (a) Except as provided in (e) and (f) of this section, the [THE] following 14 persons who, in the performance of their professional duties, have reasonable cause to
01 believe that a vulnerable adult suffers from abandonment, exploitation, abuse, 02 neglect, or self-neglect [AN ELDERLY PERSON HAS SUFFERED HARM] shall, 03 not later than 24 hours after first having cause for the belief, report the belief to the 04 department's central information and referral service for vulnerable adults 05 [HARM TO THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES]: 06 (1) a physician or other licensed health care provider; 07 (2) a mental health professional as defined in AS 47.30.915(11) [AND 08 INCLUDING A MARITAL AND FAMILY THERAPIST LICENSED UNDER 09 AS 08.63]; 10 (3) a pharmacist; 11 (4) an administrator of a nursing home, residential care or health care 12 facility; 13 (5) a guardian or conservator; 14 (6) a police officer; 15 (7) a village public safety officer; 16 (8) a village health aide; 17 (9) a social worker; 18 (10) a member of the clergy; 19 (11) a staff employee of a project funded by the Department of 20 Administration for the provision of services to older Alaskans, the Department of 21 Health and Social Services, or the Council on Domestic Violence and Sexual 22 Assault [OLDER ALASKANS COMMISSION]; 23 (12) an employee of a personal care [HOMEMAKER PROGRAM] or 24 home health aide program; 25 (13) an emergency medical technician or a mobile intensive care 26 paramedic; 27 (14) a caregiver of the vulnerable adult. 28 * Sec. 3. AS 47.24.010(b) is amended to read: 29 (b) A report [OF HARM] made under this section may include the name and 30 address of the reporting person [REPORTING THE HARM] and must [SHALL] 31 include
01 (1) the name and address of the vulnerable adult [ELDERLY 02 PERSON]; 03 (2) information relating to the nature and extent of the abandonment, 04 exploitation, abuse, neglect, or self-neglect [HARM]; 05 (3) other information that the reporting person [REPORTING THE 06 HARM] believes might be helpful in an investigation of the case or in providing 07 protection for the vulnerable adult [ELDERLY PERSON]. 08 * Sec. 4. AS 47.24.010(c) is amended to read: 09 (c) The department or its designee shall report to the Department of Law 10 any person required by (a) of this section to report who fails to comply with this 11 section. A person listed in (a) of this section who, because of the circumstances, 12 should have had reasonable cause to believe that a vulnerable adult suffers from 13 abandonment, exploitation, abuse, neglect, or self-neglect but who fails to comply 14 with this section is guilty of a violation as defined in AS 11.81.900(b). 15 * Sec. 5. AS 47.24.010(d) is amended to read: 16 (d) This section does not prohibit a person listed in (a) of this section, or any 17 other person, from reporting cases of abandonment, exploitation, abuse, neglect, or 18 self-neglect of a vulnerable adult [ECONOMIC OR PHYSICAL HARM TO AN 19 ELDERLY PERSON] that have come to the person's attention [IN A 20 NONPROFESSIONAL CAPACITY. THIS SECTION DOES NOT PROHIBIT ANY 21 OTHER PERSON FROM REPORTING ECONOMIC HARM TO AN ELDERLY 22 PERSON THAT THE PERSON HAS REASONABLE CAUSE TO BELIEVE IS A 23 RESULT OF THEFT, FRAUD, OR COERCION BY A CARETAKER OF THE 24 ELDERLY PERSON, OR PHYSICAL HARM TO AN ELDERLY PERSON THAT 25 THE PERSON HAS REASONABLE CAUSE TO BELIEVE IS A RESULT OF 26 ABUSE, NEGLECT, OR ABANDONMENT]. 27 * Sec. 6. AS 47.24.010(e) is amended to read: 28 (e) If a person making a report under this section believes that immediate 29 action is necessary to protect the vulnerable adult [ELDERLY PERSON] from 30 imminent risk due to abandonment, exploitation, abuse, neglect, or self-neglect and 31 the reporting person cannot immediately contact the department's central
01 information and referral service for vulnerable adults [HARM], the reporting 02 person may [SHALL] make the report [OF HARM] to a police officer or a village 03 public safety officer. The police officer or village public safety officer shall take 04 immediate action to protect the vulnerable adult [ELDERLY PERSON] and shall, at 05 the earliest opportunity, notify the department. 06 * Sec. 7. AS 47.24.010(f) is repealed and reenacted to read: 07 (f) A person listed in (a) of this section who reports to the long-term care 08 ombudsman under AS 44.21.232, or to the Department of Health and Social Services, 09 that a vulnerable adult has been exploited, abused, or neglected in an out-of-home care 10 facility is considered to have met the duty to report under (a) of this section. 11 * Sec. 8. AS 47.24 is amended by adding new sections to read: 12 Sec. 47.24.011. DUTIES OF THE DEPARTMENT REGARDING SERVICES 13 AND PROTECTION FOR VULNERABLE ADULTS. In order to facilitate the 14 provision of supportive and protective services for vulnerable adults, the department 15 shall 16 (1) compile information on available supportive and protective services 17 for vulnerable adults in the state; 18 (2) establish, publicize, and maintain a central information and referral 19 service for vulnerable adults; 20 (3) develop and coordinate a statewide system to serve vulnerable 21 adults who are in need of protective services; 22 (4) establish criteria and procedures for the authorization and 23 supervision of other state agencies or community-based service providers to serve as 24 designees of the department under this chapter; 25 (5) in accordance with this chapter, designate other state agencies or 26 community-based service providers to deliver supportive and protective services to 27 vulnerable adults who are in need of protective services; 28 (6) develop within the central information and referral service for 29 vulnerable adults a central registry for reports of vulnerable adults in need of protective 30 services; 31 (7) maintain confidentiality of records as provided for in AS 47.24.050;
01 and 02 (8) adopt regulations to carry out the purposes of this chapter. 03 Sec. 47.24.013. REPORTS OF ABANDONMENT, EXPLOITATION, ABUSE, 04 NEGLECT, OR SELF-NEGLECT OF VULNERABLE ADULTS IN OUT-OF-HOME 05 CARE FACILITIES. (a) If a report received under AS 47.24.010 regards the 06 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult who is 07 60 years of age or older that is alleged to have been committed by or to have resulted 08 from the negligence of the staff or a volunteer of an out-of-home care facility, 09 including a facility licensed under AS 18.20, in which the vulnerable adult resides, and 10 if the Department of Health and Social Services licenses that type of facility, the 11 Department of Administration shall transfer the report for investigation to the long 12 term care ombudsman under AS 44.21.232 and the Department of Health and Social 13 Services. 14 (b) The department shall transfer to the Department of Health and Social 15 Services, for investigation, a report received under AS 47.24.010 regarding the 16 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult who is 17 less than 60 years of age that is alleged to have been committed by or to have resulted 18 from the negligence of the staff or a volunteer of an out-of-home care facility in which 19 the vulnerable adult resides, if the Department of Health and Social Services licenses 20 that type of facility. 21 (c) Upon receipt of a report from the department under (a) or (b) of this 22 section, the long term care ombudsman and the Department of Health and Social 23 Services shall 24 (1) conduct an investigation as appropriate under AS 44.21.232 or 25 AS 47, respectively; 26 (2) coordinate and cooperate in their responses to and investigations of 27 the report if their jurisdictions overlap; 28 (3) provide the results of their actions or investigations to the central 29 information and referral service of the department within 60 days after the receipt of 30 the report. 31 (d) If the long term care ombudsman or the Department of Health and Social
01 Services receives directly a report regarding the abandonment, exploitation, abuse, 02 neglect, or self-neglect of a vulnerable adult in an out-of-home care facility, the 03 ombudsman or the Department of Health and Social Services shall provide the report, 04 and the results of their actions or investigations regarding the report, to the central 05 information and referral service of the Department of Administration. The Department 06 of Administration may investigate the report as described in AS 47.24.015 if the 07 department determines that action is appropriate. 08 (e) If the results of an investigation by the long term care ombudsman or the 09 Department of Health and Social Services are provided to the Department of 10 Administration under (c) or (d) of this section, the Department of Administration may 11 make a final determination as described in AS 47.24.015(b), based on the investigation 12 results provided, regarding services to be offered to the vulnerable adult. 13 Sec. 47.24.015. ACTION ON REPORTS. (a) Upon the department's receipt 14 of a report under AS 47.24.010 that is not transferred under AS 47.24.013, the 15 department, or its designee, shall promptly initiate an investigation to determine 16 whether the vulnerable adult who is the subject of the report suffers from 17 abandonment, exploitation, abuse, neglect, or self-neglect. The department, or its 18 designee, shall conduct a face-to-face interview with the vulnerable adult who is the 19 subject of the report unless that person is unconscious or the department, or its 20 designee, has determined that a face-to-face interview could further endanger the 21 vulnerable adult. 22 (b) After the department conducts an investigation under (a) of this section, 23 the department shall prepare a written report of the investigation, including findings, 24 recommendations, and a determination of whether and what kind of supportive or 25 protective services are needed by and are to be offered to the vulnerable adult. After 26 the department's designee conducts an investigation under (a) of this section, the 27 designee shall prepare a written report of the investigation, including findings, 28 recommendations, and a proposed determination of whether and what kind of 29 supportive or protective services are to be offered to the vulnerable adult. The 30 department shall prepare, and attach to the designee's report, a final determination 31 regarding services to be offered to the vulnerable adult.
01 (c) The department, or its designee, shall immediately terminate an 02 investigation under this section upon the request of the vulnerable adult who is the 03 subject of the report made under AS 47.24.010. However, if the investigation to that 04 point has resulted in reasonable cause to believe that the vulnerable adult is in need 05 of protective services, 06 (1) the department may petition the court as set out in AS 47.24.019; 07 or 08 (2) the department or its designee may refer the report made to the 09 department under AS 47.24.010 to a police officer for criminal investigation. 10 (d) Upon request, a person who made a report to the department under 11 AS 47.24.010 regarding a vulnerable adult shall be notified of the procedural status of 12 the investigation conducted under (a) of this section regarding that vulnerable adult. 13 Sec. 47.24.016. SURROGATE DECISION MAKERS FOR VULNERABLE 14 ADULTS. (a) If the department determines under AS 47.24.015 that a vulnerable 15 adult is in need of protective services, but the department cannot obtain the vulnerable 16 adult's consent to receive the services because the vulnerable adult is unable to consent 17 or lacks decision making capacity, and has no guardian or attorney in fact to serve as 18 the vulnerable adult's surrogate decision maker, the department may select from the 19 following list, in the order of priority listed, an individual who is willing to be the 20 vulnerable adult's surrogate decision maker for the purpose of deciding whether to 21 consent to the vulnerable adult's receipt of protective services: 22 (1) the vulnerable adult's spouse, unless 23 (A) the vulnerable adult and the spouse have separate domiciles; 24 or 25 (B) the vulnerable adult or the spouse have initiated divorce or 26 dissolution proceedings; 27 (2) an individual who lives with the vulnerable adult in a spousal 28 relationship or as a domestic partner and who is 18 years of age or older; 29 (3) a son or daughter of the vulnerable adult who is 18 years of age or 30 older; 31 (4) a parent of the vulnerable adult;
01 (5) a brother or sister of the vulnerable adult who is 18 years of age 02 or older; or 03 (6) a close friend or relative of the vulnerable adult who is 18 years of 04 age or older. 05 (b) An individual from the list in (a) of this section may not be selected as a 06 surrogate decision maker if 07 (1) the department determines that individual does not possess decision 08 making capacity; or 09 (2) there are allegations that individual is a perpetrator of the 10 abandonment, exploitation, abuse, or neglect of the vulnerable adult. 11 (c) If the department intends to select a surrogate decision maker from a 12 priority level in the list in (a) of this section and there is more than one individual at 13 that priority level who is willing to be the surrogate decision maker, those individuals 14 (1) may select from amongst themselves, by majority vote, an 15 individual to serve as the surrogate decision maker; or 16 (2) as a group may serve as the surrogate decision maker and reach 17 decisions by consensus. 18 Sec. 47.24.017. DELIVERY OF PROTECTIVE SERVICES FOR 19 VULNERABLE ADULTS. (a) If the department determines under AS 47.24.015 that 20 a vulnerable adult is in need of protective services and either the vulnerable adult, the 21 vulnerable adult's guardian or attorney in fact, or a surrogate decision maker selected 22 under AS 47.24.016 consents to receipt of the protective services, and to the extent 23 that resources are available, the department shall ensure that the protective services for 24 the vulnerable adult are provided by the department or its designee within 10 working 25 days after the department received the report under AS 47.24.010 regarding the 26 abandonment, exploitation, abuse, neglect, or self-neglect of the vulnerable adult. 27 However, if circumstances beyond the control of the department or the department's 28 designee make it impossible to provide the protective services within the 10 working 29 days, the department shall ensure that the services are provided as soon as possible 30 after that time. 31 (b) Notwithstanding (a) of this section, if the department determines that an
01 emergency life threatening situation exists that necessitates temporary provision of 02 protective services to a vulnerable adult, the department may temporarily provide the 03 necessary protective services in a manner determined by the department to be the most 04 appropriate in light of the emergency situation, regardless of whether the vulnerable 05 adult or any other person has consented to receipt of the services. 06 (c) To the extent practicable, protective services provided under this section 07 shall be delivered in a culturally relevant manner that protects the vulnerable adult's 08 right to the least restrictive environment and maximizes that person's own decision 09 making capabilities. 10 Sec. 47.24.019. PETITIONING COURT FOR CERTAIN PROTECTIVE 11 SERVICES. (a) If, after investigation under AS 47.24.015, the department has 12 reasonable cause to believe that a vulnerable adult is in need of protective services and 13 is an incapacitated person, the department may petition the court under AS 13.26 for 14 appointment of a guardian or temporary guardian for the vulnerable adult for the 15 purpose of deciding whether to consent to the receipt of protective services for the 16 vulnerable adult. 17 (b) If, after an investigation under AS 47.24.015, the department has 18 reasonable cause to believe that a vulnerable adult is mentally ill and as a result either 19 is likely to cause serious harm to self or others or is gravely disabled, the department 20 may petition the court under AS 47.30.700 to initiate an involuntary commitment 21 proceeding. 22 (c) If a vulnerable adult who has consented to receive protective services, or 23 on whose behalf consent to receive protective services has been given, is prevented by 24 a caregiver from receiving those services, the department may assist the vulnerable 25 adult or the person who consented to the vulnerable adult's receipt of the services to 26 petition the superior court for an injunction restraining the caregiver from interfering 27 with the provision of protective services to the vulnerable adult. 28 * Sec. 9. AS 47.24.040 is repealed and reenacted to read: 29 Sec. 47.24.040. MONITORING. If ongoing protective services are provided 30 to a vulnerable adult under AS 47.24.017, the department shall monitor the adult's 31 situation, as the department considers appropriate, until the department determines that
01 the protective services are no longer needed. 02 * Sec. 10. AS 47.24.050 is amended to read: 03 Sec. 47.24.050. CONFIDENTIALITY OF REPORTS. (a) Investigation 04 reports and reports of the abandonment, exploitation, abuse, neglect, or self-neglect 05 of a vulnerable adult [HARM] filed under this chapter [AS 47.24.010 - 47.24.100] 06 are confidential and are not subject to public inspection and copying under 07 AS 09.25.110 - 09.25.125. However, in accordance with this chapter [AS 47.24.010 - 08 47.24.100] and regulations adopted under this chapter [AS 47.24.010 - 47.24.100], 09 investigation reports may be used by appropriate [GOVERNMENTAL] agencies or 10 individuals inside and outside the state, in connection with investigations or judicial 11 proceedings involving the abandonment, exploitation, abuse, neglect, or self-neglect 12 of a vulnerable adult [HARM TO AN ELDERLY PERSON]. 13 (b) The department shall disclose a report of the abandonment, exploitation, 14 abuse, neglect, or self-neglect of a vulnerable adult [HARM] if the vulnerable adult 15 [ELDERLY PERSON] who is the subject of the report consents in writing. The 16 department shall, upon request, disclose the number of verified reports of 17 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult 18 [HARM] that occurred at an institution that provides [FOR] care for vulnerable 19 adults [OF THE ELDERLY]. 20 * Sec. 11. AS 47.24.070 is repealed and reenacted to read: 21 Sec. 47.24.070. REGULATIONS. Before adoption by the department, 22 regulations to implement this chapter shall be provided to the Older Alaskans 23 Commission established under AS 44.21.200 for review. 24 * Sec. 12. AS 47.24.120 is amended to read: 25 Sec. 47.24.120. IMMUNITY FROM LIABILITY; RETALIATION 26 PROHIBITED. (a) A person who in good faith makes a report under AS 47.24.010 27 [AS 47.24.110], regardless of whether the person is required to do so, is immune from 28 civil or criminal liability that might otherwise be incurred or imposed for making the 29 report. 30 (b) An employer or supervisor of a person who in good faith makes a report 31 under AS 47.24.010 [AS 47.24.110] may not discharge, demote, transfer, reduce pay
01 or benefits or work privileges of, prepare a negative work performance evaluation of, 02 or take other detrimental action against the person because the person made the report. 03 The person making the report may bring a civil action for compensatory and punitive 04 damages against an employer or supervisor who violates this subsection. In the civil 05 action there is a rebuttable presumption that the detrimental action by the employer or 06 supervisor was retaliatory if it was taken within 90 days after the report was made. 07 * Sec. 13. AS 47.24 is amended by adding a new section to read: 08 Sec. 47.24.900. DEFINITIONS. In this chapter, 09 (1) "abandonment" means desertion of a vulnerable adult by a 10 caregiver; 11 (2) "abuse" means 12 (A) the wilful, intentional, or reckless nonaccidental, and 13 nontherapeutic infliction of physical pain, injury, or mental distress; or 14 (B) sexual assault under AS 11.41.410 or 11.41.420; 15 (3) "caregiver" means 16 (A) a person who is providing care to a vulnerable adult as a 17 result of a family relationship, or who has assumed responsibility for the care 18 of a vulnerable adult voluntarily, by contract, or by court order; or 19 (B) an employee of an out-of-home care facility who provides 20 care to one or more vulnerable adults; 21 (4) "decision making capacity" means the ability to understand and 22 appreciate the nature and consequences of a decision and the ability to reach and 23 communicate an informed decision; 24 (5) "department" means the Department of Administration; 25 (6) "designee" means another state agency or a community-based 26 program, individual, or provider of supportive services that has been licensed, or 27 authorized by agreement with the department, to provide one or more services to 28 vulnerable adults; 29 (7) "exploitation" means unjust or improper use of another person or 30 another person's resources for one's own profit or advantage; 31 (8) "incapacitated person" means a person whose ability to receive and
01 evaluate information or to communicate decisions is impaired to the extent that the 02 person lacks the ability to provide or arrange for the essential requirements for the 03 person's physical health or safety without court-ordered assistance; 04 (9) "neglect" means the intentional failure by a caregiver to provide 05 essential care or services necessary to maintain the physical and mental health of the 06 vulnerable adult; 07 (10) "police officer" has the meaning given in AS 18.65.290; 08 (11) "protective services" means services that are intended to prevent 09 or alleviate harm resulting from abandonment, exploitation, abuse, neglect, or self-neglect and that are provided to 10 a vulnerable adult in need of protection; "protective 11 services" includes protective placement; 12 (12) "self-neglect" means an act or omission by a vulnerable adult that 13 results, or could result in the deprivation of essential services necessary to maintain 14 minimal mental, emotional, or physical health and safety; 15 (13) "supportive services" means the range of services delivered by 16 public and private organizations and individuals that assist the elderly and vulnerable 17 adults with their social, health, educational, recreational, transportation, housing, 18 nutritional, financial, legal, or other needs; 19 (14) "unable to consent" means refusal to, or inability to, accept 20 services because 21 (A) the person is an incapacitated person or apparently is an 22 incapacitated person; 23 (B) of coercion by or fear of reprisal from the perpetrator of 24 abandonment, exploitation, abuse, or neglect; 25 (C) of dependency on the perpetrator of abandonment, 26 exploitation, abuse, or neglect for services, care, or support; or 27 (D) of an inability to perceive that refusal to consent results in 28 an imminent and substantial danger of death or irreparable harm to self or 29 others; 30 (16) "vulnerable adult" means a person 18 years of age or older who, 31 because of physical or mental impairment, is unable to meet the person's own needs
01 or to seek help without assistance. 02 * Sec. 14. AS 08.63.200(b)(2); AS 47.24.010(g), 47.24.010(h), 47.24.020, 47.24.030, 03 47.24.060, 47.24.075, 47.24.100, and 47.24.110 are repealed. 04 * Sec. 15. TRANSITION. (a) Contracts, rights, liabilities, and obligations created by or 05 under a law repealed by this Act and in effect on June 30, 1994, remain in effect 06 notwithstanding this Act's taking effect. Records, equipment, appropriations, and other 07 property of agencies of the state whose functions are transferred under this Act shall be 08 transferred to implement the provisions of this Act. 09 (b) Litigation, hearings, investigations, and other proceedings pending under a law 10 repealed by this Act, or in connection with functions transferred by this Act, continue in effect 11 and may be continued and completed notwithstanding a transfer, amendment, or repeal 12 provided for in this Act. 13 (c) The Department of Administration may proceed to adopt regulations necessary to 14 implement the changes made by this Act. The regulations may not take effect before July 1, 15 1994. 16 * Sec. 16. Section 15(c) of this Act takes effect immediately under AS 01.10.070(c). 17 * Sec. 17. Sections 1 - 14, 15(a), and 15(b) of this Act take effect July 1, 1994.