hb 0463

CHAPTER 36

HB 463-FN - FINAL VERSION

AN ACT relative to protective services to adults.

SPONSORS: Rep. Manning, Ches 9; Rep. Allen, Ches 7

This bill amends the law governing "protection services to adults" to clarify that suspected financial exploitation, as well as abuse, neglect and exploitation, of adults suspected to be incapacitated shall be reported to the department of health and human services and that any person or entity, including a financial institution, providing information to an agent of the department in good faith is immune from liability.

Under this bill, the probate court is authorized to order the release of records needed by the department to further an investigation. This bill also amends the definition of "neglect" governing the mental health services system to make it consistent with the definition of "neglect" in the adult protection law, and authorizes financial institutions to share information with the department for the purpose of investigating a report of suspected abuse, neglect or exploitation.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to protective services to adults.

Be it Enacted by the Senate and House of Representatives in General Court convened:

XI. "Neglect" means [~~a pattern of conduct rather than action or omission which results in deprivation of services that are necessary to maintain minimum mental and physical health~~] an act or omission which results or could result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional, or physical health and safety of an incapacitated adult.

[I. "Adult"" means any person who is 18 years of age or older who is thought to manifest a degree of incapacity by reason of limited mental or physical function which may result in harm or hazard to himself or others or who is a person unable to manage his estate.

~~II.~~] I. "Protective services" means services and action which will, through voluntary agreement or through appropriate court action, prevent neglect, abuse or exploitation of incapacitated adults. Such services shall include, but not be limited to, supervision, guidance, counseling and, when necessary, assistance in the securing of nonhazardous living accommodations, and mental and physical examinations.

[~~III.~~] II. "Abuse" means [~~any act or omission by a person which is not accidental and harms or threatens to harm an incapacitated adult's physical, mental, or emotional health or safety. The term abuse includes~~] any one of the following:

(a) "Emotional abuse" means the misuse of power, authority, or both, verbal harassment, or unreasonable confinement which results or could result in the mental anguish or emotional distress of an incapacitated adult.

(b) "Physical abuse" means the use of physical force which results or could result in physical injury to an incapacitated adult.

(c) "Sexual abuse" means contact or interaction of a sexual nature involving an incapacitated adult [~~who is being used~~] without his or her informed consent.

[~~IV.~~] III. "Neglect" means an act [of] or omission which results or could result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional or physical health and safety of an incapacitated adult.

[V.] IV. "Exploitation" means the illegal use of an incapacitated adult's person or property for another person's profit or advantage, or the breach of a fiduciary relationship through the use of a person or a person's property for any purpose not in the proper and lawful execution of a trust, including, but not limited to, situations where a person obtains money, property, or services from an incapacitated adult through the use of undue influence, harassment, duress, deception, or fraud.

[~~VI.~~] V. "Serious bodily injury" means any harm to the body which causes or could cause severe, permanent or protracted loss of or impairment to the health or of the function of any part of the body.

[~~VII.~~] VI. "Self-neglect" means an act [of] or omission by an incapacitated adult which results or could result in the deprivation of essential services or supports necessary to maintain his or her minimum mental, emotional or physical health and safety.

[~~VIII.~~] VII. "Incapacitated" means that the physical, mental, or emotional ability of a person is such that he is unable to manage personal, home, or financial affairs in his own best interest, or he is unable to act or unable to delegate responsibility to a responsible caretaker or caregiver.

36:3 Clarification of Reporting Requirements. Amend the introductory paragraph of RSA 161-F:46 to read as follows:

Any person, including, but not limited to, physicians, other health care professionals, social workers, clergy, and law enforcement officials, [~~having reason to believe~~] suspecting or believing in good faith that any [~~incapacitated~~] adult [~~protected under the provisions of this subdivision~~] who is or who is suspected to be incapacitated has been subjected to [~~physical~~] abuse, neglect, self-neglect, or exploitation or is living in hazardous conditions shall report or cause a report to be made as follows:

161-F:47 Immunity From Liability. Any person or agency, other than an alleged perpetrator, participating in good faith in the making of a report of an alleged incident of adult abuse, neglect or exploitation, providing information relative to such incident or following a reporting protocol developed jointly with the department shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any [~~such participant~~] person or agency providing information in good faith, including materials requested by the department pursuant to RSA 161-F:56, shall have the same immunity with respect to participation in any investigation by the commissioner or his authorized representative or in any judicial proceeding resulting from such report.

I. The commissioner or his or her authorized representative, upon the substantiation of a report of abuse, neglect, or exploitation of an incapacitated adult, shall provide, when necessary, protective services to such adults.

II. The commissioner or his or her authorized representative shall refer all cases of serious bodily injury to an incapacitated adult known or suspected to be the result of abuse, neglect, or exploitation to local law enforcement, the department of justice or to the county attorney for possible criminal prosecution. The commissioner or his or her authorized representative [~~may~~] shall also report other cases of abuse, neglect, or exploitation [~~as he deems appropriate, under procedures to be developed jointly by the department and the attorney general,~~] to local law enforcement, the department of justice, or [to] the office of the county attorney for possible criminal prosecution if there is reason to believe a crime has been committed.

36:6 Petition to Probate Court Authorized. Amend RSA 161-F:56 to read as follows:

161-F:56 Access to Information. In the course of an investigation conducted pursuant to this subdivision, the department's authorized representative may make any inquiries and obtain such information as is necessary to further such investigation. The department's authorized representative may review and photocopy any books, files, medical records, financial records, photographs or other records on any medium [~~that pertain to patients, residents, clients or~~] of an alleged [~~victims~~] victim of abuse, neglect, or exploitation. In the event any person or agency refuses to allow the department access to materials necessary to further its investigation, the probate court, upon a finding of probable cause, may order the person or agency to release its records to the department.

161-F:57 Access to Files; Confidentiality. The files maintained by the department which relate to investigations of alleged instances of abuse, neglect, or exploitation shall be disclosed only with the written consent of the victim, or his guardian or attorney, or if such disclosure is required by court or administrative order. Nothing in this section shall be construed to prohibit the disclosure of information gathered pursuant to an investigation to a service provider as may be necessary to devise or implement a service plan, [or] to a facility and the appropriate licensing authority or authorities for an incident occurring within a facility, as defined in RSA 151, to the extent necessary to protect the victim or other facility residents or to comply with state or federal law, to local law enforcement, the department of justice, or a county attorney, pursuant to RSA 161-F:51, II, or to any court in any proceeding where the welfare of the alleged victim or actions of a fiduciary acting on behalf of an alleged victim are at issue.

36:8 New Paragraph; Exception Added. Amend RSA 359-C:11 by inserting after paragraph IV the following new paragraph:

V. Subject to the limitations of RSA 359-C:6, the examination by or disclosure to the department of health and human services of financial records requested by the commissioner or his or her authorized representative, pursuant to RSA 161-F:56, for the purpose of investigating a report of alleged abuse, neglect, or exploitation.