PA 15-233—sSB 896

Human Services Committee

Judiciary Committee

Aging Committee

AN ACT CONCERNING PROTECTIVE SERVICES FOR SUSPECTED ELDERLY ABUSE VICTIMS

SUMMARY: This act modifies laws affecting protective services for, and investigations concerning, elderly abuse victims. Generally, the act:

1. allows the Department of Social Services (DSS) to petition the probate court, under certain circumstances, for an order to enter an elderly person's premises to conduct an assessment;

2. broadens DSS' ability to issue subpoenas when investigating allegations of abuse, neglect, exploitation, or abandonment of an elderly person;

3. narrows the circumstances under which DSS may disclose the name of the person reporting abuse, neglect, exploitation, or abandonment;

4. allows an elderly person or his or her legal representative access to DSS records pertaining to the elderly person, with certain exceptions; and

5. establishes circumstances when DSS may disclose an elderly person's file, both with and without authorization from the elderly person or his or her legal representative.

The act also changes the definition of neglect for purposes of DSS investigations and services. Under prior law, “neglect” referred to an elderly person who is living alone and unable to provide for himself or herself the services necessary to maintain physical and mental health or not receiving these services from a responsible caretaker. The act broadens the definition by also including an elderly person who does not live alone but is unable to provide himself or herself with the necessary services. It also specifies that a caretaker's failure to provide or arrange services constitutes neglect. Under the act, “services necessary to maintain physical and mental health” include protection from abuse, neglect, exploitation, or abandonment, rather than protection from maltreatment generally as under prior law.

Finally, the act makes several technical and conforming changes.

EFFECTIVE DATE: July 1, 2015, except for definitional changes, which are effective October 1, 2015.

PROBATE COURT ORDERS

The act allows DSS to petition the probate court for an order to enter an elderly person's premises if DSS has reasonable cause to believe the elderly person may need protective services and the person or another individual has refused to give DSS access to the premises. DSS must include certain information in its investigation file and petition, and the court must grant the petition if it finds certain conditions are met.

Under the act, probate court orders may only authorize assessment of the elderly person's need for protective services. They may not authorize DSS to remove a person from his or her premises or provide involuntary protective services. The act specifies that its provisions concerning these court orders do not impair existing legal rights or remedies.

DSS Application

The act requires DSS to document in its investigation file the factors it considered when deciding to petition for a court order to enter an elderly person's premises. For these petitions, the act requires that DSS base allegations of abuse, neglect, exploitation, or abandonment on the personal knowledge of (1) the DSS commissioner; (2) the person reporting the abuse, neglect, exploitation, or abandonment; or (3) any other person with information relating to the report. Whenever possible, allegations not based on the commissioner's knowledge must be supported by an affidavit, under penalty of perjury, attached to DSS' petition.

Under the act, DSS must also include the following information in its petition:

1. a statement affirming that DSS seeks the order solely to assess whether the elderly person needs protective services;

2. the elderly person's name and address and the premises where he or she can be found, if different from the address;

3. the reason to believe the elderly person may need protective services, which may include information provided by other agencies or individuals familiar with the person;

4. the name and address, if known, of any individuals responsible for preventing access to the elderly person;

5. previous efforts made to enter the elderly person's premises;

6. names of any other individuals (e. g. , DSS social workers) or health or mental health professionals who may participate in assessing the elderly person;

7. the manner in which DSS will conduct the assessment; and

8. whether there has been a prior petition to the probate court to enter the elderly person's premises or for similar relief and, if so, the court's ruling and any new facts supporting submission of another petition.

Probate Court Determinations

Under the act, the probate court must grant DSS' petition if it finds (1) reasonable cause to believe the elderly person is at risk of imminent physical or mental harm and may be found at the premises described in the petition, (2) the elderly person may need protective services, and (3) access to such person has been refused. Upon granting the petition, the court must issue an order, ex parte (i. e. , without hearing from other parties) and without prior notice, authorizing DSS, accompanied by a police officer or other law enforcement official and other necessary individuals, to enter the premises to conduct an assessment to determine whether the elderly person named in the petition needs protective services. The order expires 10 days after it is issued.

DSS INVESTIGATIONS OF ALLEGATIONS

Obtaining Necessary Records

The act requires covered entities (e. g. , health care providers and others as defined by the federal Health Insurance Portability and Accountability Act (HIPAA)) to disclose to DSS all relevant information, including protected health information, necessary for DSS to investigate an allegation of abuse, neglect, exploitation, or abandonment. Covered entities must provide notice to the elderly person in accordance with HIPAA requirements (see BACKGROUND).

Under prior law, any person, department, agency, or commission authorized by law to provide protective services for the elderly had access to all relevant records, except those confidential to an elderly person, which could only be divulged with the written consent of the elderly person or his or her representative. The act eliminates that provision and broadens the circumstances under which DSS may issue a subpoena to obtain records necessary for an investigation.

Under prior law, DSS could issue a subpoena to obtain confidential records if it had reasonable cause to believe (1) an elderly person lacked capacity to consent to their release or (2) in cases where the person's caretaker refused consent, the caretaker had abused, neglected, exploited or abandoned the person. Under the act, DSS may issue a subpoena for information, including protected health information, whenever it has reasonable cause to believe the elderly person is being abused, neglected, exploited, or abandoned.

Interview Requirement

By law, DSS must investigate any report it receives alleging an elderly person (1) has been abused, neglected, exploited, or abandoned or (2) needs protective services. The investigation must include an interview with the elderly person alone, with certain exceptions. Prior law exempted from the interview requirement an elderly person whose physician submitted a written statement that the interview was medically contraindicated, provided the physician had examined the person within 30 days of DSS receiving the report. The act eliminates this exemption, but continues to exempt an elderly person when he or she refuses to consent to the interview or DSS determines the interview is not in his or her best interest.

Notice of Findings

The act eliminates a requirement for DSS to notify the person who filed the report, upon his or her request, of the investigation's findings.

Registry

Prior law required DSS to maintain a statewide registry of reports received, investigations, findings, and actions taken. The act instead requires the registry to contain the number of reports received, the allegations, and outcomes.

DSS DISCLOSURE OF RECORDS

Elderly Person's File

Under law unchanged by the act, the elderly person's file, including the original report and DSS' investigation report, is not a public record or subject to disclosure under the Freedom of Information Act. The act allows DSS to disclose the file with written authorization from the elderly person or his or her legal representative. Under the act, beginning October 1, 2015, a legal representative is a guardian ad litem, conservator, or power of attorney appointed to act on the elderly person's behalf. With such an authorization, DSS may disclose the file or any portion of the file to an individual, agency, corporation, or organization.

In addition, under the act, DSS may disclose the elderly person's records without authorization, including records not created by DSS, if (1) DSS determines disclosure is necessary to assure the elderly person's health, safety, and welfare and (2) the records are not otherwise privileged or confidential under state or federal law. In these situations, DSS may disclose the records (1) to law enforcement officials; (2) to multidisciplinary teams formed to assist DSS with investigations, evaluations, or treatment in elderly abuse and neglect cases; and (3) in other proceedings related to protective services for the elderly and other actions the DSS commissioner deems necessary to assure an elderly person's health, safety, and welfare.

Name of Person Filing Report

The act narrows the circumstances in which DSS may disclose the name of the person who reported suspected elderly abuse, neglect, exploitation, or abandonment. Under prior law, DSS could not disclose such a person's name unless (1) the person specifically requested disclosure, (2) a judicial proceeding resulted from the report, or (3) disclosure of the person's name was necessary to fully investigate the report. Under the act, DSS may only disclose a reporting person's name (1) with the person's written permission or (2) to a law enforcement official under a court order specifically requiring disclosure.

ACCESS TO DSS RECORDS

Under the act, with certain exceptions, an elderly person or his or her legal representative has the right, in accordance with applicable state and federal law, to access records made, kept, or maintained by DSS that pertain to or contain information about the person, including (1) records of investigations; (2) reports; and (3) records of the elderly person's medical, psychological, or psychiatric examinations. The act restricts access to these records if:

1. DSS obtains protected health information from someone other than a health care provider under promise of confidentiality and the requested access would likely reveal the information's source;

2. a licensed health care professional determines the requested access is reasonably likely to endanger a person's life or physical safety;

3. the protected health information refers to someone other than a health care provider, and a licensed health care professional using professional judgment determines the requested access is reasonably likely to cause that person substantial harm; or

4. the person's legal representative requests access, and a licensed health care professional using professional judgment determines that providing such access is reasonably likely to harm someone.

The act also prohibits releasing to the elderly person or his or her legal representative information identifying the individual who reported the abuse, neglect, exploitation, or abandonment unless (1) the elderly person applies to the Superior Court; (2) the DSS commissioner is served; and (3) a judge determines, after in-camera inspection (i. e. , in private or not in open court) of relevant records and a hearing, that there is reasonable cause to believe the reporter knowingly made a false report or that other interests of justice require releasing the information.

NURSING HOME TRANSFERS

By law, DSS may take necessary actions to assure the health, safety, and welfare of elderly persons. Under prior law, this included the right to authorize transfer of an elderly person from a nursing home. The act eliminates this explicit authority. However, by law, unchanged by the act, the public health commissioner may transfer a nursing home patient if she determines there is imminent danger to the patient's health, safety, or welfare (CGS 19a-534).

BACKGROUND

HIPAA

The HIPAA “privacy rule” sets national standards to protect the privacy of health information. Among other things, it limits the circumstances when health care providers, insurers, and other covered entities may release protected health information (PHI). PHI includes information that could identify a person, including name, Social Security number, telephone number, medical record number, and ZIP code.

Federal law generally allows covered entities to disclose to a government authority PHI about an individual they believe to be a victim of abuse, neglect, or domestic violence. The entity must promptly inform the individual unless it would (1) place the individual at risk of serious harm or (2) inform a personal representative who the entity believes is responsible for the abuse, neglect, or other injury and doing so is not in the individual's best interest.

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