CCS SB 248: "An Act relating to services for and protection of vulnerable adults; and providing for an effective date."
00CONFERENCE CS FOR SENATE BILL NO. 248 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 AS 08.63; 09 (3) a pharmacist; 10 (4) an administrator of a nursing home, residential care or health care 11 facility; 12 (5) a guardian or conservator; 13 (6) a police officer; 14 (7) a village public safety officer; 15 (8) a village health aide; 16 (9) a social worker; 17 (10) a member of the clergy; 18 (11) a staff employee of a project funded by the Department of 19 Administration for the provision of services to older Alaskans, the Department of 20 Health and Social Services, or the Council on Domestic Violence and Sexual 21 Assault [OLDER ALASKANS COMMISSION]; 22 (12) an employee of a personal care [HOMEMAKER PROGRAM] or 23 home health aide program; 24 (13) an emergency medical technician or a mobile intensive care 25 paramedic; 26 (14) a caregiver of the vulnerable adult. 27 * Sec. 3. AS 47.24.010(b) is amended to read: 28 (b) A report [OF HARM] made under this section may include the name and 29 address of the reporting person [REPORTING THE HARM] and must [SHALL] 30 include 31 (1) the name and address of the vulnerable adult [ELDERLY
01 PERSON]; 02 (2) information relating to the nature and extent of the abandonment, 03 exploitation, abuse, neglect, or self-neglect [HARM]; 04 (3) other information that the reporting person [REPORTING THE 05 HARM] believes might be helpful in an investigation of the case or in providing 06 protection for the vulnerable adult [ELDERLY PERSON]. 07 * Sec. 4. AS 47.24.010(c) is amended to read: 08 (c) The department or its designees shall report to the Department of Law 09 any person required by (a) of this section to report who fails to comply with this 10 section. A person listed in (a) of this section who, because of the circumstances, 11 should have had reasonable cause to believe that a vulnerable adult suffers from 12 abandonment, exploitation, abuse, neglect, or self-neglect but who fails to comply 13 with this section is guilty of a violation as defined in AS 11.81.900(b). 14 * Sec. 5. AS 47.24.010(d) is amended to read: 15 (d) This section does not prohibit a person listed in (a) of this section, or any 16 other person, from reporting cases of abandonment, exploitation, abuse, neglect, or 17 self-neglect of a vulnerable adult [ECONOMIC OR PHYSICAL HARM TO AN 18 ELDERLY PERSON] that have come to the person's attention [IN A 19 NONPROFESSIONAL CAPACITY. THIS SECTION DOES NOT PROHIBIT ANY 20 OTHER PERSON FROM REPORTING ECONOMIC HARM TO AN ELDERLY 21 PERSON THAT THE PERSON HAS REASONABLE CAUSE TO BELIEVE IS A 22 RESULT OF THEFT, FRAUD, OR COERCION BY A CARETAKER OF THE 23 ELDERLY PERSON, OR PHYSICAL HARM TO AN ELDERLY PERSON THAT 24 THE PERSON HAS REASONABLE CAUSE TO BELIEVE IS A RESULT OF 25 ABUSE, NEGLECT, OR ABANDONMENT]. 26 * Sec. 6. AS 47.24.010(e) is amended to read: 27 (e) If a person making a report under this section believes that immediate 28 action is necessary to protect the vulnerable adult [ELDERLY PERSON] from 29 imminent risk of serious physical harm due to abandonment, exploitation, abuse, 30 neglect, or self-neglect and the reporting person cannot immediately contact the 31 department's central information and referral service for vulnerable adults
01 [HARM], the reporting person may [SHALL] make the report [OF HARM] to a 02 police officer or a village public safety officer. The police officer or village public 03 safety officer shall take immediate action to protect the vulnerable adult [ELDERLY 04 PERSON] and shall, at the earliest opportunity, notify the department. A person may 05 not bring an action for damages against a police officer, village public safety 06 officer, the state, or a political subdivision of the state based on a decision under 07 this subsection to take or not to take immediate action to protect a vulnerable 08 adult. If a decision is made under this subsection to take immediate action to 09 protect a vulnerable adult, a person may not bring an action for damages based 10 on the protective actions taken unless the protective actions were performed with 11 gross negligence or intentional misconduct; damages awarded in the action may 12 include only direct economic compensatory damages for personal injury. 13 * Sec. 7. AS 47.24.010(f) is repealed and reenacted to read: 14 (f) A person listed in (a) of this section who reports to the long term care 15 ombudsman under AS 44.21.232, or to the Department of Health and Social Services, 16 that a vulnerable adult has been exploited, abused, or neglected in an out-of-home care 17 facility is considered to have met the duty to report under (a) of this section. 18 * Sec. 8. AS 47.24 is amended by adding new sections to read: 19 Sec. 47.24.011. DUTIES OF THE DEPARTMENT REGARDING SERVICES 20 AND PROTECTION FOR VULNERABLE ADULTS. In order to facilitate the 21 provision of supportive and protective services for vulnerable adults, the department 22 shall 23 (1) compile information on available supportive and protective services 24 for vulnerable adults in the state; 25 (2) establish, publicize, and maintain a central information and referral 26 service for vulnerable adults; 27 (3) develop and coordinate a statewide system to serve vulnerable 28 adults who are in need of protective services; 29 (4) establish criteria and procedures for the authorization and 30 supervision of other state agencies or community-based service providers to serve as 31 designees of the department under this chapter;
01 (5) in accordance with this chapter, designate other state agencies or 02 community-based service providers to deliver supportive and protective services to 03 vulnerable adults who are in need of protective services; 04 (6) develop within the central information and referral service for 05 vulnerable adults a central registry for reports of vulnerable adults in need of protective 06 services; 07 (7) maintain confidentiality of records as provided for in AS 47.24.050; 08 and 09 (8) adopt regulations to carry out the purposes of this chapter. 10 Sec. 47.24.013. REPORTS OF ABANDONMENT, EXPLOITATION, ABUSE, 11 NEGLECT, OR SELF-NEGLECT OF VULNERABLE ADULTS IN OUT-OF-HOME 12 CARE FACILITIES. (a) If a report received under AS 47.24.010 regards the 13 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult who is 14 60 years of age or older that is alleged to have been committed by or to have resulted 15 from the negligence of the staff or a volunteer of an out-of-home care facility, 16 including a facility licensed under AS 18.20, in which the vulnerable adult resides, and 17 if the Department of Health and Social Services licenses that type of facility, the 18 Department of Administration shall transfer the report for investigation to the long 19 term care ombudsman under AS 44.21.232 and the Department of Health and Social 20 Services. 21 (b) The department shall transfer to the Department of Health and Social 22 Services, for investigation, a report received under AS 47.24.010 regarding the 23 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult who is 24 less than 60 years of age that is alleged to have been committed by or to have resulted 25 from the negligence of the staff or a volunteer of an out-of-home care facility in which 26 the vulnerable adult resides, if the Department of Health and Social Services licenses 27 that type of facility. 28 (c) Upon receipt of a report from the department under (a) or (b) of this 29 section, the long term care ombudsman and the Department of Health and Social 30 Services shall 31 (1) conduct an investigation as appropriate under AS 44.21.232 or
01 AS 47, respectively; 02 (2) coordinate and cooperate in their responses to and investigations of 03 the report if their jurisdictions overlap; 04 (3) provide the results of their actions or investigations to the central 05 information and referral service of the department within 60 days after the receipt of 06 the report. 07 (d) If the long term care ombudsman or the Department of Health and Social 08 Services receives directly a report regarding the abandonment, exploitation, abuse, 09 neglect, or self-neglect of a vulnerable adult in an out-of-home care facility, the 10 ombudsman or the Department of Health and Social Services shall provide the report, 11 and the results of their actions or investigations regarding the report, to the central 12 information and referral service of the Department of Administration. The Department 13 of Administration may investigate the report as described in AS 47.24.015 if the 14 department determines that action is appropriate. 15 (e) If the results of an investigation by the long term care ombudsman or the 16 Department of Health and Social Services are provided to the Department of 17 Administration under (c) or (d) of this section, the Department of Administration may 18 make a final determination as described in AS 47.24.015(b), based on the investigation 19 results provided, regarding services to be offered to the vulnerable adult. 20 Sec. 47.24.015. ACTION ON REPORTS. (a) Upon the department's receipt 21 of a report under AS 47.24.010 that is not transferred under AS 47.24.013, the 22 department, or its designee, shall promptly initiate an investigation to determine 23 whether the vulnerable adult who is the subject of the report suffers from 24 abandonment, exploitation, abuse, neglect, or self-neglect. The department, or its 25 designee, shall conduct a face-to-face interview with the subject of the report unless 26 that person is unconscious or the department, or its designee, has determined that a 27 face-to-face interview could further endanger the vulnerable adult. 28 (b) After the department conducts an investigation under (a) of this section, 29 the department shall prepare a written report of the investigation, including findings, 30 recommendations, and a determination of whether and what kind of supportive or 31 protective services are needed by and are to be offered to the vulnerable adult. After
01 the department's designee conducts an investigation under (a) of this section, the 02 designee shall prepare a written report of the investigation, including findings, 03 recommendations, and a proposed determination of whether and what kind of 04 supportive or protective services are to be offered to the vulnerable adult. The 05 department shall prepare, and attach to the designee's report, a final determination 06 regarding services to be offered to the vulnerable adult. 07 (c) The department, or its designee, shall immediately terminate an 08 investigation under this section upon the request of the vulnerable adult who is the 09 subject of the report made under AS 47.24.010. However, if the investigation to that 10 point has resulted in reasonable cause to believe that the vulnerable adult is in need 11 of protective services, 12 (1) the department may petition the court as set out in AS 47.24.019; 13 or 14 (2) the department or its designee may refer the report made to the 15 department under AS 47.24.010 to a police officer for criminal investigation. 16 (d) Upon request, a person who made a report to the department under 17 AS 47.24.010 regarding a vulnerable adult shall be notified of the status of the 18 investigation conducted under (a) of this section regarding that vulnerable adult. 19 (e) A person may not bring an action for damages based on a decision under 20 this section to offer or not to offer protective services to a vulnerable adult. 21 (f) A person may not bring an action for damages based on the provision of 22 protective services under this section unless the action is based on gross negligence or 23 intentional misconduct. The damages awarded in an action under this section may 24 include only direct economic compensatory damages for personal injury. 25 Sec. 47.24.016. SURROGATE DECISION MAKERS FOR VULNERABLE 26 ADULTS. (a) If the department determines under AS 47.24.015 that a vulnerable 27 adult is in need of protective services, but the department cannot obtain the vulnerable 28 adult's consent to receive the services because the vulnerable adult is unable to consent 29 or lacks decision making capacity, and has no guardian or attorney in fact to serve as 30 the vulnerable adult's surrogate decision maker, the department may select from the 31 following list, in the order of priority listed, an individual who is willing to be the
01 vulnerable adult's surrogate decision maker for the purpose of deciding whether to 02 consent to the vulnerable adult's receipt of protective services: 03 (1) the vulnerable adult's spouse, unless 04 (A) the vulnerable adult and the spouse have separate domiciles; 05 or 06 (B) the vulnerable adult or the spouse have initiated divorce or 07 dissolution proceedings; 08 (2) an individual who lives with the vulnerable adult in a spousal 09 relationship or as a domestic partner and who is 18 years of age or older; 10 (3) a son or daughter of the vulnerable adult who is 18 years of age or 11 older; 12 (4) a parent of the vulnerable adult; 13 (5) a brother or sister of the vulnerable adult who is 18 years of age 14 or older; or 15 (6) a close friend or relative of the vulnerable adult who is 18 years of 16 age or older. 17 (b) An individual from the list in (a) of this section may not be selected as a 18 surrogate decision maker if 19 (1) the department determines that individual does not possess decision 20 making capacity; or 21 (2) there are allegations that individual is a perpetrator of the 22 abandonment, exploitation, abuse, or neglect of the vulnerable adult. 23 (c) If the department intends to select a surrogate decision maker from a 24 priority level in the list in (a) of this section and there is more than one individual at 25 that priority level who is willing to be the surrogate decision maker, those individuals 26 (1) may select from amongst themselves, by majority vote, an 27 individual to serve as the surrogate decision maker; or 28 (2) as a group may serve as the surrogate decision maker and reach 29 decisions by consensus. 30 (d) The department may not continue to provide protective services to a 31 vulnerable adult based on the consent of a surrogate decision maker serving under this
01 section if the department determines that the vulnerable adult has become able to 02 consent or has regained decision making capacity since the surrogate's consent was 03 given. The department may continue protective services to a vulnerable adult who has 04 become able to consent or has regained decision making capacity only if the vulnerable 05 adult consents. 06 Sec. 47.24.017. DELIVERY OF PROTECTIVE SERVICES FOR 07 VULNERABLE ADULTS. (a) If the department determines under AS 47.24.015 that 08 a vulnerable adult is in need of protective services and either the vulnerable adult, the 09 vulnerable adult's guardian or attorney in fact, or a surrogate decision maker selected 10 under AS 47.24.016 consents to receipt of the protective services, and to the extent 11 that resources are available, the department shall ensure that the protective services for 12 the vulnerable adult are provided by the department or its designee within 10 working 13 days after the department received the report under AS 47.24.010 regarding the 14 abandonment, exploitation, abuse, neglect, or self-neglect of the vulnerable adult. 15 However, if circumstances beyond the control of the department or the department's 16 designee make it impossible to provide the protective services within the 10 working 17 days, the department shall ensure that the services are provided as soon as possible 18 after that time. 19 (b) Notwithstanding (a) of this section, if the department determines that an 20 emergency situation exists that necessitates provision of protective services to a 21 vulnerable adult, the department may provide the necessary protective services in a 22 manner determined by the department to be the most appropriate in light of the 23 emergency situation, regardless of whether the vulnerable adult or any other person has 24 consented to receipt of the services. 25 (c) To the extent practicable, protective services provided under this section 26 shall be delivered in a culturally relevant manner that protects the vulnerable adult's 27 right to the least restrictive environment and maximizes that person's own decision 28 making capabilities. 29 Sec. 47.24.019. PETITIONING COURT FOR CERTAIN PROTECTIVE 30 SERVICES. (a) If, after investigation under AS 47.24.015, the department has 31 reasonable cause to believe that a vulnerable adult is in need of protective services and
01 is an incapacitated person, the department may petition the court under AS 13.26 for 02 appointment of a guardian or temporary guardian for the vulnerable adult for the 03 purpose of deciding whether to consent to the receipt of protective services for the 04 vulnerable adult. 05 (b) If, after an investigation under AS 47.24.015, the department has 06 reasonable cause to believe that a vulnerable adult is mentally ill and as a result either 07 is likely to cause serious harm to self or others or is gravely disabled, the department 08 may petition the court under AS 47.30.700 to initiate an involuntary commitment 09 proceeding. 10 (c) If a vulnerable adult who has consented to receive protective services, or 11 on whose behalf consent to receive protective services has been given, is prevented by 12 a caregiver from receiving those services, the department may assist the vulnerable 13 adult or the person who consented to the vulnerable adult's receipt of the services to 14 petition the superior court for an injunction restraining the caregiver from interfering 15 with the provision of protective services to the vulnerable adult. 16 * Sec. 9. AS 47.24.040 is repealed and reenacted to read: 17 Sec. 47.24.040. MONITORING. If ongoing protective services are provided 18 to a vulnerable adult under AS 47.24.017, the department shall monitor the adult's 19 situation, as the department considers appropriate, until the department determines that 20 the protective services are no longer needed. 21 * Sec. 10. AS 47.24.050 is amended to read: 22 Sec. 47.24.050. CONFIDENTIALITY OF REPORTS. (a) Investigation 23 reports and reports of the abandonment, exploitation, abuse, neglect, or self-neglect 24 of a vulnerable adult [HARM] filed under this chapter [AS 47.24.010 - 47.24.100] 25 are confidential and are not subject to public inspection and copying under 26 AS 09.25.110 - 09.25.125. However, in accordance with this chapter [AS 47.24.010 27 - 47.24.100] and regulations adopted under this chapter [AS 47.24.010 - 47.24.100], 28 investigation reports may be used by appropriate [GOVERNMENTAL] agencies or 29 individuals inside and outside the state, in connection with investigations or judicial 30 proceedings involving the abandonment, exploitation, abuse, neglect, or self-neglect 31 of a vulnerable adult [HARM TO AN ELDERLY PERSON].
01 (b) The department shall disclose a report of the abandonment, exploitation, 02 abuse, neglect, or self-neglect of a vulnerable adult [HARM] if the vulnerable adult 03 [ELDERLY PERSON] who is the subject of the report consents in writing. The 04 department shall, upon request, disclose the number of verified reports of 05 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult 06 [HARM] that occurred at an institution that provides [FOR] care for vulnerable 07 adults [OF THE ELDERLY]. 08 * Sec. 11. AS 47.24.070 is repealed and reenacted to read: 09 Sec. 47.24.070. REGULATIONS. Before adoption by the department, 10 regulations to implement this chapter shall be provided to the Older Alaskans 11 Commission (AS 44.21.200) for review. 12 * Sec. 12. AS 47.24.120 is amended to read: 13 Sec. 47.24.120. IMMUNITY FROM LIABILITY; RETALIATION 14 PROHIBITED. (a) A person who in good faith makes a report under AS 47.24.010 15 [AS 47.24.110], regardless of whether the person is required to do so, is immune from 16 civil or criminal liability that might otherwise be incurred or imposed for making the 17 report. 18 (b) An employer or supervisor of a person who in good faith makes a report 19 under AS 47.24.010 [AS 47.24.110] may not discharge, demote, transfer, reduce pay 20 or benefits or work privileges of, prepare a negative work performance evaluation of, 21 or take other detrimental action against the person because the person made the report. 22 The person making the report may bring a civil action for compensatory and punitive 23 damages against an employer or supervisor who violates this subsection. In the civil 24 action there is a rebuttable presumption that the detrimental action by the employer or 25 supervisor was retaliatory if it was taken within 90 days after the report was made. 26 * Sec. 13. AS 47.24 is amended by adding new sections to read: 27 Sec. 47.24.130. TREATMENT THROUGH SPIRITUAL MEANS. This 28 chapter may not be construed to mean that a person is abused, neglected, self- 29 neglected, vulnerable, unable to consent, abandoned, exploited, or in need of 30 emergency or protective services for the sole reason that the person relies on or is 31 being furnished treatment by spiritual means through prayer alone in accordance with
01 the tenets and practices of a church or religious denomination of which the person is 02 a member or adherent, provided that the person consents to the treatment through 03 spiritual means only and the treatment is administered by an accredited practitioner of 04 the church or religious denomination. 05 Sec. 47.24.900. DEFINITIONS. In this chapter, 06 (1) "abandonment" means desertion of a vulnerable adult by a 07 caregiver; 08 (2) "abuse" means 09 (A) the wilful, intentional, or reckless nonaccidental, and 10 nontherapeutic infliction of physical pain, injury, or mental distress; or 11 (B) sexual assault under AS 11.41.410 or 11.41.420; 12 (3) "caregiver" means 13 (A) a person who is providing care to a vulnerable adult as a 14 result of a family relationship, or who has assumed responsibility for the care 15 of a vulnerable adult voluntarily, by contract, or by court order; or 16 (B) an employee of an out-of-home care facility who provides 17 care to one or more vulnerable adults; 18 (4) "decision making capacity" means the ability to understand and 19 appreciate the nature and consequences of a decision and the ability to reach and 20 communicate an informed decision; 21 (5) "department" means the Department of Administration; 22 (6) "designee" means another state agency or a community-based 23 program, individual, or provider of supportive services that has been licensed, or 24 authorized by agreement with the department, to provide one or more services to 25 vulnerable adults; 26 (7) "exploitation" means unjust or improper use of another person or 27 another person's resources for one's own profit or advantage; 28 (8) "incapacitated person" means a person whose ability to receive and 29 evaluate information or to communicate decisions is impaired to the extent that the 30 person lacks the ability to provide or arrange for the essential requirements for the 31 person's physical health or safety without court-ordered assistance;
01 (9) "neglect" means the intentional failure by a caregiver to provide 02 essential care or services necessary to maintain the physical and mental health of the 03 vulnerable adult; 04 (10) "police officer" has the meaning given in AS 18.65.290; 05 (11) "protective services" means services that are intended to prevent 06 or alleviate harm resulting from abandonment, exploitation, abuse, neglect, or self-neglect and that are provided to 07 a vulnerable adult in need of protection; "protective 08 services" includes protective placement; 09 (12) "self-neglect" means an act or omission by a vulnerable adult that 10 results, or could result in the deprivation of essential services necessary to maintain 11 minimal mental, emotional, or physical health and safety; 12 (13) "supportive services" means the range of services delivered by 13 public and private organizations and individuals that assist the elderly and vulnerable 14 adults with their social, health, educational, recreational, transportation, housing, 15 nutritional, financial, legal, or other needs; 16 (14) "unable to consent" means refusal to, or inability to, accept 17 services because 18 (A) the person is an incapacitated person or apparently is an 19 incapacitated person; 20 (B) of coercion by or fear of reprisal from the perpetrator of 21 abandonment, exploitation, abuse, or neglect; 22 (C) of dependency on the perpetrator of abandonment, 23 exploitation, abuse, or neglect for services, care, or support; or 24 (D) of an inability to perceive that refusal to consent results in 25 an imminent and substantial danger of death or irreparable harm to self or 26 others; 27 (15) "vulnerable adult" means a person 18 years of age or older who, 28 because of physical or mental impairment, is unable to meet the person's own needs 29 or to seek help without assistance. 30 * Sec. 14. AS 47.24.010(g), 47.24.010(h), 47.24.020, 47.24.030, 47.24.060, 47.24.075, 31 47.24.100, and 47.24.110 are repealed.
01 * Sec. 15. TRANSITION. (a) Contracts, rights, liabilities, and obligations created by or 02 under a law repealed by this Act and in effect on June 30, 1994, remain in effect 03 notwithstanding this Act's taking effect. Records, equipment, appropriations, and other 04 property of agencies of the state whose functions are transferred under this Act shall be 05 transferred to implement the provisions of this Act. 06 (b) Litigation, hearings, investigations, and other proceedings pending under a law 07 repealed by this Act, or in connection with functions transferred by this Act, continue in effect 08 and may be continued and completed notwithstanding a transfer, amendment, or repeal 09 provided for in this Act. 10 (c) The Department of Administration may proceed to adopt regulations necessary to 11 implement the changes made by this Act. The regulations may not take effect before July 1, 12 1994. 13 * Sec. 16. Section 15(c) of this Act takes effect immediately under AS 01.10.070(c). 14 * Sec. 17. Sections 1 - 14, 15(a), and 15(b) of this Act take effect July 1, 1994.