HB 376: "An Act relating to services for and protection of vulnerable adults; and providing for an effective date."
00HOUSE BILL NO. 376 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 47.24.010 is amended to read: 05 Sec. 47.24.010. PROTECTIVE REPORTS REGARDING VULNERABLE 06 ADULTS [REPORTS OF HARM]. (a) Except as provided in (e) and (f) of this 07 section, the [THE] following persons who, in the performance of their professional 08 duties, have reasonable cause to believe that a vulnerable adult suffers from 09 abandonment, exploitation, abuse, neglect, or self-neglect [AN ELDERLY PERSON 10 HAS SUFFERED HARM] shall, not later than 24 hours after first having cause for the 11 belief, report the belief to the department's central information and referral service 12 for vulnerable adults [HARM TO THE DEPARTMENT OF HEALTH AND SOCIAL 13 SERVICES]: 14 (1) a physician or other licensed health care provider;
01 (2) a mental health professional as defined in AS 47.30.915(11) [AND 02 INCLUDING A MARITAL AND FAMILY THERAPIST LICENSED UNDER 03 AS 08.63]; 04 (3) a pharmacist; 05 (4) an administrator of a nursing home, residential care or health care 06 facility; 07 (5) a guardian or conservator; 08 (6) a police officer; 09 (7) a village public safety officer; 10 (8) a village health aide; 11 (9) a social worker; 12 (10) a member of the clergy; 13 (11) a staff employee of a project funded by the Department of 14 Administration for the provision of services to older Alaskans, the Department of 15 Health and Social Services, or the Council on Domestic Violence and Sexual 16 Assault [OLDER ALASKANS COMMISSION]; 17 (12) an employee of a personal care [HOMEMAKER PROGRAM] or 18 home health aide program; 19 (13) an emergency medical technician or a mobile intensive care 20 paramedic; 21 (14) a caregiver of the vulnerable adult. 22 (b) A report [OF HARM] made under this section may include the name and 23 address of the reporting person [REPORTING THE HARM] and shall include 24 (1) the name and address of the vulnerable adult [ELDERLY 25 PERSON]; 26 (2) information relating to the nature and extent of the abandonment, 27 exploitation, abuse, neglect, or self-neglect [HARM]; 28 (3) other information that the reporting person [REPORTING THE 29 HARM] believes might be helpful in an investigation of the case or in providing 30 protection for the vulnerable adult [ELDERLY PERSON]. 31 (c) The department or its designees shall report to the Department of Law
01 any person required by (a) of this section to report who fails to comply with this 02 section. A person listed in (a) of this section who, because of the circumstances, 03 should have had reasonable cause to believe that a vulnerable adult suffers from 04 abandonment, exploitation, abuse, neglect, or self-neglect but who fails to comply 05 with this section is guilty of a violation as defined in AS 11.81.900(b). 06 (d) This section does not prohibit a person listed in (a) of this section, or any 07 other person, from reporting cases of abandonment, exploitation, abuse, neglect, or 08 self-neglect of a vulnerable adult [ECONOMIC OR PHYSICAL HARM TO AN 09 ELDERLY PERSON] that have come to the person's attention [IN A 10 NONPROFESSIONAL CAPACITY. THIS SECTION DOES NOT PROHIBIT ANY 11 OTHER PERSON FROM REPORTING ECONOMIC HARM TO AN ELDERLY 12 PERSON THAT THE PERSON HAS REASONABLE CAUSE TO BELIEVE IS A 13 RESULT OF THEFT, FRAUD, OR COERCION BY A CARETAKER OF THE 14 ELDERLY PERSON, OR PHYSICAL HARM TO AN ELDERLY PERSON THAT 15 THE PERSON HAS REASONABLE CAUSE TO BELIEVE IS A RESULT OF 16 ABUSE, NEGLECT, OR ABANDONMENT]. 17 (e) If a person making a report under this section believes that immediate 18 action is necessary to protect the vulnerable adult [ELDERLY PERSON] from 19 imminent risk due to abandonment, exploitation, abuse, neglect, or self-neglect and 20 the reporting person cannot immediately contact the department's central 21 information and referral service for vulnerable adults [HARM], the reporting 22 person may [SHALL] make the report [OF HARM] to a police officer or a village 23 public safety officer. The police officer or village public safety officer shall take 24 immediate action to protect the vulnerable adult [ELDERLY PERSON] and shall, at 25 the earliest opportunity, notify the department. 26 (f) A person listed in (a) of this section who reports to the long term care 27 ombudsman under AS 44.21.232, or to the Department of Health and Social 28 Services, that a vulnerable adult has been exploited, abused, or neglected in an 29 out-of-home care facility is considered to have met the duty to report under (a) 30 of this section. [A PERSON WHO, IN GOOD FAITH MAKES A REPORT OF 31 ECONOMIC OR PHYSICAL HARM TO AN ELDERLY PERSON UNDER
01 AS 47.24.010 - 47.24.100, OR WHO PARTICIPATES IN JUDICIAL PROCEEDINGS 02 RELATED TO THE SUBMISSION OF REPORTS UNDER AS 47.24.010 - 03 47.24.100, IS IMMUNE FROM ANY CIVIL OR CRIMINAL LIABILITY THAT 04 MIGHT OTHERWISE BE INCURRED OR IMPOSED.] 05 (g) [FAILURE TO MAKE A REPORT UNDER SUBSECTIONS (a) AND (d) 06 OF THIS SECTION IS NOT THE BASIS OF CIVIL LIABILITY UNLESS 07 OTHERWISE PROVIDED BY LAW.] 08 (h) [IF A PERSON MAKES A GOOD FAITH REPORT OF HARM UNDER 09 THIS SECTION, AN EMPLOYER OR SUPERVISOR OF THE PERSON, OR A 10 PUBLIC OR PRIVATE AGENCY OR ENTITY THAT PROVIDES BENEFITS, 11 SERVICES, OR HOUSING TO THE PERSON, MAY NOT DISCHARGE, DEMOTE, 12 TRANSFER, REDUCE THE PAY OR BENEFITS OR WORK PRIVILEGES OF, 13 PREPARE A NEGATIVE WORK PERFORMANCE EVALUATION OF, DENY OR 14 WITHHOLD BENEFITS OR SERVICES, EVICT, OR TAKE OTHER 15 DETRIMENTAL ACTION AGAINST THE PERSON BECAUSE OF THE REPORT. 16 THE PERSON MAKING THE REPORT MAY BRING A CIVIL ACTION FOR 17 COMPENSATORY AND PUNITIVE DAMAGES AGAINST AN EMPLOYER, 18 SUPERVISOR, AGENCY, OR ENTITY THAT VIOLATES THIS SUBSECTION. 19 IN THE CIVIL ACTION THERE IS A REBUTTABLE PRESUMPTION THAT THE 20 DETRIMENTAL ACTION WAS RETALIATORY IF IT WAS TAKEN WITHIN 90 21 DAYS AFTER THE REPORT OF HARM WAS MADE.] 22 * Sec. 2. AS 47.24 is amended by adding new sections to read: 23 Sec. 47.24.011. DUTIES OF THE DEPARTMENT REGARDING SERVICES 24 AND PROTECTION FOR VULNERABLE ADULTS. In order to facilitate the 25 provision of supportive and protective services for vulnerable adults, the department 26 shall 27 (1) compile information on available supportive and protective services 28 for vulnerable adults in the state; 29 (2) establish, publicize, and maintain a central information and referral 30 service for vulnerable adults; 31 (3) develop and coordinate a statewide system to serve vulnerable
01 adults who are in need of protective services; 02 (4) establish criteria and procedures for the authorization and 03 supervision of other state agencies or community-based service providers to serve as 04 designees of the department under AS 47.24; 05 (5) in accordance with this chapter, designate other state agencies or 06 community-based service providers to deliver supportive and protective services to 07 vulnerable adults who are in need of protective services; 08 (6) develop within the central information and referral service for 09 vulnerable adults a central registry for reports of vulnerable adults in need of protective 10 services; 11 (7) maintain confidentiality of records as provided for in AS 47.24.050; 12 and 13 (8) adopt regulations to carry out the purposes of this chapter. 14 Sec. 47.24.013. REPORTS OF ABANDONMENT, EXPLOITATION, ABUSE, 15 NEGLECT, OR SELF-NEGLECT OF VULNERABLE ADULTS IN OUT-OF-HOME 16 CARE FACILITIES. (a) If a report received under AS 47.24.010 regards the 17 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult who is 18 60 years of age or older that is alleged to have been committed by or to have resulted 19 from the negligence of the staff or a volunteer of an out-of-home care facility, 20 including a facility licensed under AS 18.20, in which the vulnerable adult resides, and 21 if the Department of Health and Social Services licenses that type of facility, the 22 Department of Administration shall transfer the report for investigation to the long 23 term care ombudsman under AS 44.21.232 and the Department of Health and Social 24 Services. 25 (b) The department shall transfer to the Department of Health and Social 26 Services, for investigation, a report received under AS 47.24.010 regarding the 27 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult who is 28 less than 60 years of age that is alleged to have been committed by or to have resulted 29 from the negligence of the staff or a volunteer of an out-of-home care facility in which 30 the vulnerable adult resides, if the Department of Health and Social Services licenses 31 that type of facility.
01 (c) Upon receipt of a report from the department under (a) or (b) of this 02 section, the long term care ombudsman and the Department of Health and Social 03 Services shall 04 (1) conduct an investigation as appropriate under AS 44.21.232 or 05 AS 47, respectively; 06 (2) coordinate and cooperate in their responses to and investigations of 07 the report if their jurisdictions overlap; 08 (3) provide the results of their actions or investigations to the central 09 information and referral service of the department within 60 days after the receipt of 10 the report. 11 (d) If the long term care ombudsman or the Department of Health and Social 12 Services receives directly a report regarding the abandonment, exploitation, abuse, 13 neglect, or self-neglect of a vulnerable adult in an out-of-home care facility, the 14 ombudsman or the Department of Health and Social Services shall provide the report, 15 and the results of their actions or investigations regarding the report, to the central 16 information and referral service of the Department of Administration. The Department 17 of Administration may investigate the report as described in AS 47.24.015 if the 18 department determines that action is appropriate. 19 (e) If the results of an investigation by the long term care ombudsman or the 20 Department of Health and Social Services are provided to the Department of 21 Administration under (c) or (d) of this section, the Department of Administration may 22 make a final determination as described in AS 47.24.015(b), based on the investigation 23 results provided, regarding services to be offered to the vulnerable adult. 24 Sec. 47.24.015. ACTION ON REPORTS. (a) Upon the department's receipt 25 of a report under AS 47.24.010 that is not transferred under AS 47.24.013, the 26 department, or its designee, shall promptly initiate an investigation to determine 27 whether the vulnerable adult who is the subject of the report suffers from 28 abandonment, exploitation, abuse, neglect, or self-neglect. The department, or its 29 designee, shall conduct a face-to-face interview with the subject of the report unless 30 that person is unconscious or the department, or its designee, has determined that a 31 face-to-face interview could further endanger the vulnerable adult.
01 (b) After the department conducts an investigation under (a) of this section, 02 the department shall prepare a written report of the investigation, including findings, 03 recommendations, and a determination of whether and what kind of supportive or 04 protective services are needed by and are to be offered to the vulnerable adult. After 05 the department's designee conducts an investigation under (a) of this section, the 06 designee shall prepare a written report of the investigation, including findings, 07 recommendations, and a proposed determination of whether and what kind of 08 supportive or protective services are to be offered to the vulnerable adult. The 09 department shall prepare, and attach to the designee's report, a final determination 10 regarding services to be offered to the vulnerable adult. 11 (c) The department, or its designee, shall immediately terminate an 12 investigation under this section upon the request of the vulnerable adult who is the 13 subject of the report made under AS 47.24.010. However, if the investigation to that 14 point has resulted in reasonable cause to believe that the vulnerable adult is in need 15 of protective services, 16 (1) the department may petition the court as set out in AS 47.24.019; 17 or 18 (2) the department or its designee may refer the report made to the 19 department under AS 47.24.010 to a police officer for criminal investigation. 20 (d) Upon request, a person who made a report to the department under 21 AS 47.24.010 regarding a vulnerable adult shall be notified of the status of the 22 investigation conducted under (a) of this section regarding that vulnerable adult. 23 Sec. 47.24.016. SURROGATE DECISION MAKERS FOR VULNERABLE 24 ADULTS. (a) If the department determines under AS 47.24.015 that a vulnerable 25 adult is in need of protective services, but the department cannot obtain the vulnerable 26 adult's consent to receive the services because the vulnerable adult is unable to consent 27 or lacks decision making capacity, and has no guardian or attorney in fact to serve as 28 the vulnerable adult's surrogate decision maker, the department may select from the 29 following list, in the order of priority listed, an individual who is willing to be the 30 vulnerable adult's surrogate decision maker for the purpose of deciding whether to 31 consent to the vulnerable adult's receipt of protective services:
01 (1) the vulnerable adult's spouse, unless 02 (A) the vulnerable adult and the spouse have separate domiciles; 03 or 04 (B) the vulnerable adult or the spouse have initiated divorce or 05 dissolution proceedings; 06 (2) an individual who lives with the vulnerable adult in a spousal 07 relationship or as a domestic partner and who is 18 years of age or older; 08 (3) a son or daughter of the vulnerable adult who is 18 years of age or 09 older; 10 (4) a parent of the vulnerable adult; 11 (5) a brother or sister of the vulnerable adult who is 18 years of age 12 or older; or 13 (6) a close friend or relative of the vulnerable adult who is 18 years of 14 age or older. 15 (b) An individual from the list in (a) of this section may not be selected as a 16 surrogate decision maker if 17 (1) the department determines that individual does not possess decision 18 making capacity; or 19 (2) there are allegations that individual is a perpetrator of the 20 abandonment, exploitation, abuse, or neglect of the vulnerable adult. 21 (c) If the department intends to select a surrogate decision maker from a 22 priority level in the list in (a) of this section and there is more than one individual at 23 that priority level who is willing to be the surrogate decision maker, those individuals 24 (1) may select from amongst themselves, by majority vote, an 25 individual to serve as the surrogate decision maker; or 26 (2) as a group may serve as the surrogate decision maker and reach 27 decisions by consensus. 28 Sec. 47.24.017. DELIVERY OF PROTECTIVE SERVICES FOR 29 VULNERABLE ADULTS. (a) If the department determines under AS 47.24.015 that 30 a vulnerable adult is in need of protective services and either the vulnerable adult, the 31 vulnerable adult's guardian or attorney in fact, or a surrogate decision maker selected
01 under AS 47.24.016 consents to receipt of the protective services, and to the extent 02 that resources are available, the department shall ensure that the protective services for 03 the vulnerable adult are provided by the department or its designee within 10 working 04 days after the department received the report under AS 47.24.010 regarding the 05 abandonment, exploitation, abuse, neglect, or self-neglect of the vulnerable adult. 06 However, if circumstances beyond the control of the department or the department's 07 designee make it impossible to provide the protective services within the 10 working 08 days, the department shall ensure that the services are provided as soon as possible 09 after that time. 10 (b) Notwithstanding (a) of this section, if the department determines that an 11 emergency situation exists that necessitates provision of protective services to a 12 vulnerable adult, the department may provide the necessary protective services in a 13 manner determined by the department to be the most appropriate in light of the 14 emergency situation, regardless of whether the vulnerable adult or any other person has 15 consented to receipt of the services. 16 (c) To the extent practicable, protective services provided under this section 17 shall be delivered in a culturally relevant manner that protects the vulnerable adult's 18 right to the least restrictive environment and maximizes that person's own decision 19 making capabilities. 20 Sec. 47.24.019. PETITIONING COURT FOR CERTAIN PROTECTIVE 21 SERVICES. (a) If, after investigation under AS 47.24.015, the department has 22 reasonable cause to believe that a vulnerable adult is in need of protective services and 23 is an incapacitated person, the department may petition the court under AS 13.26 for 24 appointment of a guardian or temporary guardian for the vulnerable adult for the 25 purpose of deciding whether to consent to the receipt of protective services for the 26 vulnerable adult. 27 (b) If, after an investigation under AS 47.24.015, the department has 28 reasonable cause to believe that a vulnerable adult is mentally ill and as a result either 29 is likely to cause serious harm to self or others or is gravely disabled, the department 30 may petition the court under AS 47.30.700 to initiate an involuntary commitment 31 proceeding.
01 (c) If a vulnerable adult who has consented to receive protective services, or 02 on whose behalf consent to receive protective services has been given, is prevented by 03 a caregiver from receiving those services, the department may assist the vulnerable 04 adult or the person who consented to the vulnerable adult's receipt of the services to 05 petition the superior court for an injunction restraining the caregiver from interfering 06 with the provision of protective services to the vulnerable adult. 07 * Sec. 3. AS 47.24.040 is repealed and reenacted to read: 08 Sec. 47.24.040. MONITORING. If ongoing protective services are provided 09 to a vulnerable adult under AS 47.24.017, the department shall monitor the adult's 10 situation, as the department considers appropriate, until the department determines that 11 the protective services are no longer needed. 12 * Sec. 4. AS 47.24.050 is amended to read: 13 Sec. 47.24.050. CONFIDENTIALITY OF REPORTS. (a) Investigation 14 reports and reports of the abandonment, exploitation, abuse, neglect, or self-neglect 15 of a vulnerable adult [HARM] filed under this chapter [AS 47.24.010 - 47.24.100] 16 are confidential and are not subject to public inspection and copying under 17 AS 09.25.110 - 09.25.125. However, in accordance with this chapter [AS 47.24.010 - 18 47.24.100] and regulations adopted under this chapter [AS 47.24.010 - 47.24.100], 19 investigation reports may be used by appropriate [GOVERNMENTAL] agencies or 20 individuals inside and outside the state, in connection with investigations or judicial 21 proceedings involving the abandonment, exploitation, abuse, neglect, or self-neglect 22 of a vulnerable adult [HARM TO AN ELDERLY PERSON]. 23 (b) The department shall disclose a report of the abandonment, exploitation, 24 abuse, neglect, or self-neglect of a vulnerable adult [HARM] if the vulnerable adult 25 [ELDERLY PERSON] who is the subject of the report consents in writing. The 26 department shall, upon request, disclose the number of verified reports of 27 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult 28 [HARM] that occurred at an institution that provides [FOR] care for vulnerable 29 adults [OF THE ELDERLY]. 30 * Sec. 5. AS 47.24.070 is repealed and reenacted to read: 31 Sec. 47.24.070. REGULATIONS. Before adoption by the department,
01 regulations to implement this chapter shall be provided to the Older Alaskans 02 Commission (AS 44.21.200) for review. 03 * Sec. 6. AS 47.24.120 is amended to read: 04 Sec. 47.24.120. IMMUNITY FROM LIABILITY; RETALIATION 05 PROHIBITED. (a) A person who in good faith makes a report under AS 47.24.010 06 [AS 47.24.110], regardless of whether the person is required to do so, is immune from 07 civil or criminal liability that might otherwise be incurred or imposed for making the 08 report. 09 (b) An employer or supervisor of a person who in good faith makes a report 10 under AS 47.24.010 [AS 47.24.110] may not discharge, demote, transfer, reduce pay 11 or benefits or work privileges of, prepare a negative work performance evaluation of, 12 or take other detrimental action against the person because the person made the report. 13 The person making the report may bring a civil action for compensatory and punitive 14 damages against an employer or supervisor who violates this subsection. In the civil 15 action there is a rebuttable presumption that the detrimental action by the employer or 16 supervisor was retaliatory if it was taken within 90 days after the report was made. 17 * Sec. 7. AS 47.24 is amended by adding a new section to read: 18 Sec. 47.24.900. DEFINITIONS. In this chapter, 19 (1) "abandonment" means desertion of a vulnerable adult by a 20 caregiver; 21 (2) "abuse" means 22 (A) the wilful, intentional, or reckless non-accidental, and non-therapeutic infliction of physical pain, injury, 23 or mental distress; or 24 (B) sexual assault under AS 11.41.410 or 11.41.420; 25 (3) "caregiver" means 26 (A) a person who is providing care to a vulnerable adult as a 27 result of a family relationship, or who has assumed responsibility for the care 28 of a vulnerable adult voluntarily, by contract, or by court order; or 29 (B) an employee of an out-of-home care facility who provides 30 care to one or more vulnerable adults; 31 (4) "decision making capacity" means the ability to understand and
01 appreciate the nature and consequences of 222a decision and the ability to reach and 02 communicate an informed decision; 03 (5) "department" means the Department of Administration; 04 (6) "designee" means another state agency or a community-based 05 program, individual, or provider of supportive services that has been licensed, or 06 authorized by agreement with the department, to provide one or more services to 07 vulnerable adults; 08 (7) "exploitation" means unjust or improper use of another person or 09 another person's resources for one's own profit or advantage; 10 (8) "incapacitated person" means a person whose ability to receive and 11 evaluate information or to communicate decisions is impaired to the extent that the 12 person lacks the ability to provide or arrange for the essential requirements for the 13 person's physical health or safety without court-ordered assistance; 14 (9) "neglect" means the intentional failure by a caregiver to provide 15 essential care or services necessary to maintain the physical and mental health of the 16 vulnerable adult; 17 (10) "police officer" has the meaning given in AS 18.65.290; 18 (11) "protective services" means services that are intended to prevent 19 or alleviate harm resulting from abandonment, exploitation, abuse, neglect, or self-neglect and that are provided to 20 a vulnerable adult in need of protection; "protective 21 services" includes protective placement; 22 (12) "self-neglect" means an act or omission by a vulnerable adult that 23 results, or could result in the deprivation of essential services necessary to maintain 24 minimal mental, emotional, or physical health and safety; 25 (13) "supportive services" means the range of services delivered by 26 public and private organizations and individuals that assist the elderly and vulnerable 27 adults with their social, health, educational, recreational, transportation, housing, 28 nutritional, financial, legal, or other needs; 29 (14) "unable to consent" means refusal to, or inability to, accept 30 services because 31 (A) the person is an incapacitated person or apparently is an
01 incapacitated person; 02 (B) of coercion by or fear of reprisal from the perpetrator of 03 abandonment, exploitation, abuse, or neglect; 04 (C) of dependency on the perpetrator of abandonment, 05 exploitation, abuse, or neglect for services, care, or support; or 06 (D) of an inability to perceive that refusal to consent results in 07 an imminent and substantial danger of death or irreparable harm to self or 08 others; 09 (16) "vulnerable adult" means a person 18 years of age or older who, 10 because of physical or mental impairment, is unable to meet the person's own needs 11 or to seek help without assistance. 12 * Sec. 8. AS 47.24.020, 47.24.030, 47.24.060, 47.24.075, 47.24.100, and 47.24.110 are 13 repealed. 14 * Sec. 9. TRANSITION. (a) Contracts, rights, liabilities, and obligations created by or 15 under a law repealed by this Act and in effect on June 30, 1994, remain in effect 16 notwithstanding this Act's taking effect. Records, equipment, appropriations, and other 17 property of agencies of the state whose functions are transferred under this Act shall be 18 transferred to implement the provisions of this Act. 19 (b) Litigation, hearings, investigations, and other proceedings pending under a law 20 repealed by this Act, or in connection with functions transferred by this Act, continue in effect 21 and may be continued and completed notwithstanding a transfer, amendment, or repeal 22 provided for in this Act. 23 (c) The Department of Administration may proceed to adopt regulations necessary to 24 implement the changes made by this Act. The regulations may not take effect before July 1, 25 1994. 26 * Sec. 10. Section 9(c) of this Act takes effect immediately under AS 01.10.070(c). 27 * Sec. 11. Sections 1 - 8, 9(a), and 9(b) of this Act take effect July 1, 1994.