REFERENCE TITLE: mandatory reporting; vulnerable adults; penalties
State of Arizona
House of Representatives
Second Regular Session
Representatives Longdon: Blanc, Bolding, Butler, Cano, Chávez, Dunn, Engel, Epstein, Espinoza, Fernandez, Friese, Gabaldón, Hernandez A, Hernandez D, Jermaine, Lieberman, Pawlik, Peten, Rodriguez, Salman, Shah, Sierra, Teller, Terán, Tsosie, Senators Alston, Bradley, Steele
Amending sections 46‑451 and 46‑454, Arizona Revised Statutes; relating to vulnerable adults.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 46-451, Arizona Revised Statutes, is amended to read:
46-451. Definitions; program goals
A. In this chapter, unless the context otherwise requires:
1. "Abuse" means:
(a) Intentional infliction of physical harm.
(b) Injury caused by negligent acts or omissions.
(c) Unreasonable confinement.
(d) Sexual abuse or sexual assault.
2. "Adult protective services central intake unit" means a unit of specialized staff within adult protective services that is responsible for receiving reports of alleged abuse, neglect or exploitation of vulnerable adults or making the necessary resource referrals.
3. "De facto conservator" means any person who takes possession of the estate of a vulnerable adult, without right or lawful authority. A de facto conservator is subject to all of the responsibilities that attach to a legally appointed conservator or trustee.
4. "De facto guardian" means any person who takes possession of the person of a vulnerable adult, without right or lawful authority. A de facto guardian is subject to all of the responsibilities that attach to a legally appointed guardian.
5. "Exploitation" means the illegal or improper use of a vulnerable adult or the vulnerable adult's resources for another's profit or advantage.
6. "Health professional" has the same meaning prescribed in section 32‑3201.
6. 7. "Informed consent" means any of the following:
(a) A written expression by the person that the person fully understands the potential risks and benefits of the withdrawal of food, water, medication, medical services, shelter, cooling, heating or other services necessary to maintain minimum physical or mental health and that the person desires that the services be withdrawn. A written expression is valid only if the person is of sound mind and if the consent is witnessed by at least two individuals who do not benefit by the withdrawal of services.
(b) Consent to withdraw food, water, medication, medical services, shelter, cooling, heating or other services necessary to maintain minimum physical or mental health as permitted by an order of a court of competent jurisdiction.
(c) A declaration made pursuant to title 36, chapter 32.
(d) Consent by another person under a durable power of attorney relating to health care services to withdraw food, water, medication, medical services, shelter, cooling, heating or other services necessary to maintain minimum physical or mental health.
7. 8. "Neglect" means the deprivation of food, water, medication, medical services, shelter, supervision, cooling, heating or other services necessary to maintain a vulnerable adult's minimum physical or mental health.
8. 9. "Protective services" means a program of identifiable and specialized social services that may offer social services appropriate to resolve problems of abuse, exploitation or neglect of a vulnerable adult.
9. 10. "Protective services worker" means a person who has been selected by and trained under the requirements prescribed by the department to provide protective services.
10. 11. "Vulnerable adult" means an individual who is eighteen years of age or older and who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment. Vulnerable adult includes an incapacitated person as defined in section 14‑5101.
B. Protective services programs shall seek to maintain the adult in the adult's familiar environment by strengthening the adult's capacity for self-maintenance or by providing supportive services.
C. Nothing in This section means does not mean that an adult is abused, neglected or in need of protective services for the sole reason that the adult relies on treatment from a recognized religious method of healing in lieu of medical treatment.
D. For the purposes of this section, a person is not exploited by a transfer of assets if the transfer is to obtain or maintain eligibility for benefits under title 36, chapter 29 or benefits for supplemental security income, medicare or veterans' administration programs and the transfer of assets is between the person and any of the following:
1. The person's spouse.
2. The person's child with a disability.
3. A trust for the benefit of the person's spouse or child with a disability.
E. A transfer of assets for the purpose of obtaining or maintaining eligibility for benefits under title 36, chapter 29 shall comply with 42 United States Code section 1396p and sections 36‑2934 and 36‑2934.01.
Sec. 2. Section 46-454, Arizona Revised Statutes, is amended to read:
46-454. Duty to report abuse, neglect and exploitation of vulnerable adults; duty to make medical records available; violation; classification
A. A physician, physician assistant, registered nurse practitioner, licensed practical or registered nurse, certified nursing assistant health professional, emergency medical technician, home health provider, hospital intern or resident, surgeon, dentist, psychiatrist, psychologist, pharmacist, speech, physical or occupational therapist, long‑term care provider, social worker, peace officer, medical examiner, guardian, conservator, fire protection personnel, developmental disabilities provider, employee of the department of economic security or other person who has responsibility for the care of a vulnerable adult and who has a reasonable basis to believe that abuse, neglect or exploitation of the adult has occurred shall immediately report or cause reports to be made of such reasonable basis to a peace officer or to the adult protective services central intake unit. The guardian or conservator of a vulnerable adult shall immediately report or cause reports to be made of such reasonable basis to the superior court and the adult protective services central intake unit. All of the above reports shall be made immediately by telephone or online.
B. If an individual prescribed listed in subsection A of this section is an employee or agent of a health care institution as defined in section 36‑401 and the health care institution's procedures require that all suspected abuse, neglect and exploitation be reported to adult protective services as required by law, the individual is deemed to have complied with the requirements of subsection A of this section by reporting or causing a report to be made to the health care institution in accordance with the health care institution's procedures.
C. An attorney, accountant, trustee, guardian, conservator or other person who has responsibility for preparing the tax records of a vulnerable adult or a person who has responsibility for any other action concerning the use or preservation of the vulnerable adult's property and who, in the course of fulfilling that responsibility, discovers a reasonable basis to believe that abuse, neglect or exploitation of the adult has occurred shall immediately report or cause reports to be made of such reasonable basis to a peace officer or to the adult protective services central intake unit. All of the above reports shall be made immediately by telephone or online.
D. Reports pursuant to subsections A and C of this section shall contain:
1. The names and addresses of the adult and any persons having control or custody of the adult, if known.
2. The adult's age and the nature and extent of the adult's vulnerability.
3. The nature and extent of the abuse, neglect or exploitation.
4. Any other information that the person reporting believes might be helpful in establishing the cause of the abuse, neglect or exploitation.
E. Any person other than one required to report or cause reports to be made in subsection A or C of this section who has a reasonable basis to believe that abuse, neglect or exploitation of a vulnerable adult has occurred may report the information to a peace officer or to the adult protective services central intake unit.
F. A person having custody or control of medical or financial records of a vulnerable adult for whom a report is required or authorized under this section shall make those records, or a copy of those records, available to a peace officer or adult protective services worker investigating the vulnerable adult's abuse, neglect or exploitation on written request for the records signed by the peace officer or adult protective services worker. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding or investigation resulting from a report required or authorized under this section.
G. If reports pursuant to this section are received by a peace officer, the peace officer shall notify the adult protective services central intake unit as soon as possible and make that information available to them.
H. A person required to receive reports pursuant to subsection A, C or E of this section may take or cause to be taken photographs of the abused adult and the vicinity involved. Medical examinations, including radiological examinations of the involved adult, may be performed. Accounts, inventories or audits of the exploited adult's property may be performed. The person, department, agency or court that initiates the photographs, examinations, accounts, inventories or audits shall pay the associated costs in accordance with existing statutes and rules. If any person is found to be responsible for the abuse, neglect or exploitation of a vulnerable adult in a criminal or civil action, the court may order the person to make restitution as the court deems appropriate.
I. If psychiatric records are requested pursuant to subsection F of this section, the custodian of the records shall notify the attending psychiatrist, who may excise from the records, before they are made available:
1. Personal information about individuals other than the patient.
2. Information regarding specific diagnosis or treatment of a psychiatric condition, if the attending psychiatrist certifies in writing that release of the information would be detrimental to the patient's health or treatment.
J. If any portion of a psychiatric record is excised pursuant to subsection I of this section, a court, on application of a peace officer or adult protective services worker, may order that the entire record or any portion of the record containing information relevant to the reported abuse, neglect or exploitation be made available to the peace officer or adult protective services worker investigating the abuse, neglect or exploitation.
K. A licensing agency shall not find that a reported incidence of abuse at a care facility by itself is sufficient grounds to allow the agency to close the facility or to find that all residents are in imminent danger.
L. Retaliation against a person who in good faith reports abuse, neglect or exploitation is prohibited. Retaliation against a vulnerable adult who is the subject of a report is prohibited. Any adverse action taken against a person who reports abuse, neglect or exploitation or a vulnerable adult who is the subject of the report within ninety days after the report is filed is presumed to be retaliation.
M. A person who violates this section is guilty of a class 1 misdemeanor, except if the failure to report involves an offense listed in title 13, chapter 14, the person is guilty of a class 6 felony.
Sec. 3. Emergency
This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.