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| 2 | 2 | | HOUSE DOCKET, NO. 637 FILED ON: 1/15/2023 |
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| 3 | 3 | | HOUSE . . . . . . . . . . . . . . . No. 644 |
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| 4 | 4 | | The Commonwealth of Massachusetts |
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| 5 | 5 | | _________________ |
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| 6 | 6 | | PRESENTED BY: |
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| 7 | 7 | | Tram T. Nguyen |
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| 8 | 8 | | _________________ |
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| 9 | 9 | | To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General |
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| 10 | 10 | | Court assembled: |
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| 11 | 11 | | The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: |
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| 12 | 12 | | An Act protecting vulnerable elders from abuse. |
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| 13 | 13 | | _______________ |
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| 14 | 14 | | PETITION OF: |
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| 15 | 15 | | NAME:DISTRICT/ADDRESS :DATE ADDED:Tram T. Nguyen18th Essex1/14/2023James K. Hawkins2nd Bristol1/27/2023 1 of 14 |
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| 16 | 16 | | HOUSE DOCKET, NO. 637 FILED ON: 1/15/2023 |
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| 17 | 17 | | HOUSE . . . . . . . . . . . . . . . No. 644 |
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| 18 | 18 | | By Representative Nguyen of Andover, a petition (accompanied by bill, House, No. 644) of |
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| 19 | 19 | | Tram T. Nguyen and James K. Hawkins relative to protecting vulnerable elders from abuse. |
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| 20 | 20 | | Elder Affairs. |
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| 21 | 21 | | The Commonwealth of Massachusetts |
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| 22 | 22 | | _______________ |
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| 23 | 23 | | In the One Hundred and Ninety-Third General Court |
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| 24 | 24 | | (2023-2024) |
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| 25 | 25 | | _______________ |
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| 26 | 26 | | An Act protecting vulnerable elders from abuse. |
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| 27 | 27 | | Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority |
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| 28 | 28 | | of the same, as follows: |
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| 29 | 29 | | 1 SECTION 1. Section 4 of chapter 19A of the General Laws, as appearing in the 2020 |
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| 30 | 30 | | 2Official Edition, is hereby amended by striking out the first paragraph and inserting in place |
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| 31 | 31 | | 3thereof the following paragraph:- |
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| 32 | 32 | | 4 The department shall be the principal agency of the commonwealth to mobilize the |
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| 33 | 33 | | 5human, physical, and financial resources available to plan, develop, and implement innovative |
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| 34 | 34 | | 6programs to insure the dignity and independence of all elderly persons in the commonwealth, |
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| 35 | 35 | | 7including the planning, development, and implementation of a home care program for the elderly |
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| 36 | 36 | | 8in the communities of the commonwealth. |
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| 37 | 37 | | 9 SECTION 2. Section 14 of said chapter 19A, as so appearing, is hereby amended by |
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| 38 | 38 | | 10striking out the second paragraph, and inserting in place thereof the following paragraphs:- |
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| 39 | 39 | | 11 “Abuse”, (a) an act or omission which results in serious physical or emotional injury to |
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| 40 | 40 | | 12an elderly person or financial exploitation of an elderly person; (b) the failure, inability or 2 of 14 |
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| 41 | 41 | | 13resistance of a caretaker to provide for the elderly person one or more of the necessities essential |
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| 42 | 42 | | 14for physical and emotional well-being without which the elderly person’s safety would be |
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| 43 | 43 | | 15compromised; or (c) the failure, inability, or resistance of an elderly person to provide for |
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| 44 | 44 | | 16themself one or more of the necessities essential for physical and emotional well-being without |
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| 45 | 45 | | 17which the elderly person’s safety would be compromised. No person shall be considered to be |
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| 46 | 46 | | 18abused or neglected for the sole reason that such person is being furnished or relies upon |
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| 47 | 47 | | 19treatment in accordance with the tenets and teachings of a church or religious denomination by a |
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| 48 | 48 | | 20duly accredited practitioner thereof. No elderly person residing in a prison or house of correction |
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| 49 | 49 | | 21shall be considered to be abused or neglected for the sole reason that a staff member, contractor, |
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| 50 | 50 | | 22or volunteer uses physical contact with the person which harms that person, if: (a) the physical |
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| 51 | 51 | | 23contact with the elderly person occurs in the course of carrying out the staff member, contractor, |
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| 52 | 52 | | 24or volunteer’s official duties performed in accordance with the regulations contained at 103 |
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| 53 | 53 | | 25C.M.R.; and (c) both the type of physical contact involved and the amount of force used are |
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| 54 | 54 | | 26necessary in order to carry out the staff member, contractor, or volunteer’s official duties. |
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| 55 | 55 | | 27 Physical contact with an elderly person residing in a prison or house of correction which |
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| 56 | 56 | | 28harms that elderly person, and which occurs for the purpose of retaliating against that elderly |
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| 57 | 57 | | 29person, shall constitute abuse. |
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| 58 | 58 | | 30 SECTION 3. Said section 14 of said chapter 19A, as so appearing, is hereby further |
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| 59 | 59 | | 31amended by striking out the third paragraph, and inserting in place thereof the following |
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| 60 | 60 | | 32paragraph:- |
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| 61 | 61 | | 33 “Caretaker”, the person or agency responsible for the care of an elderly person, which |
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| 62 | 62 | | 34responsibility may arise: (a) as the result of a family relationship; (b) by a voluntary or 3 of 14 |
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| 63 | 63 | | 35contractual duty undertaken on behalf of an elderly person, or (b) by a fiduciary duty imposed by |
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| 64 | 64 | | 36law. Caretakers shall include any person or agency responsible for an elderly person’s health or |
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| 65 | 65 | | 37welfare in any custodial or residential facility unless that facility is licensed under sections 51, |
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| 66 | 66 | | 3857D or 71 of chapter 111. A person or agency responsible for the health or welfare of an elderly |
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| 67 | 67 | | 39person who has been involuntarily committed under chapter 123 shall be a caretaker, even if the |
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| 68 | 68 | | 40facility in which the elder resides is licensed under sections 51, 57D, or 71 of chapter 111. |
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| 69 | 69 | | 41 SECTION 4. Said section 14 of said chapter 19A, as so appearing, is hereby further |
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| 70 | 70 | | 42amended by adding the following paragraph:- |
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| 71 | 71 | | 43 “State agency”, any agency of the commonwealth, including town, city, county, and other |
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| 72 | 72 | | 44municipal government agencies, that provides services or treatment to elderly persons, including |
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| 73 | 73 | | 45private agencies providing such services or treatment pursuant to a contract or agreement with an |
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| 74 | 74 | | 46agency of the commonwealth. |
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| 75 | 75 | | 47 SECTION 5. Section 15 of said chapter 19A, as so appearing, is hereby amended by |
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| 76 | 76 | | 48striking out subsections (d), (e), and (f) and inserting in the place thereof the following |
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| 77 | 77 | | 49subsections:- |
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| 78 | 78 | | 50 (d) No person required to report pursuant to the provisions of subsection (a) shall be |
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| 79 | 79 | | 51liable in any civil or criminal action by reason of such report; provided, however, that such |
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| 80 | 80 | | 52person did not perpetrate, inflict or cause said abuse. No other person making such a report |
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| 81 | 81 | | 53pursuant to the provisions of subsection (b) or (c) shall be liable in any civil or criminal action by |
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| 82 | 82 | | 54reason of such report if it was made in good faith; provided, however, that such person did not |
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| 83 | 83 | | 55perpetrate, inflict or cause said abuse. Any person making a report under subsection (a), (b) or 4 of 14 |
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| 84 | 84 | | 56(c) who, in the determination of the department or the district attorney may have perpetrated, |
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| 85 | 85 | | 57inflicted or caused said abuse may be liable in a civil or criminal action by reason of such report. |
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| 86 | 86 | | 58 (e) No person, employer, or agency may discharge, demote, transfer, reduce pay, benefits |
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| 87 | 87 | | 59or work privileges, prepare a negative work performance evaluation, or in any manner |
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| 88 | 88 | | 60discriminate against or thereafter take any other retaliatory action against any employee, client or |
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| 89 | 89 | | 61other person for filing a report with the department, testifying in any department proceeding or |
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| 90 | 90 | | 62providing information to the department or their designee in the course of an investigation of |
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| 91 | 91 | | 63alleged abuse of an elderly person. Any person who takes such prohibited action against an |
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| 92 | 92 | | 64employee, client or other person may be liable to that employee, client or other person for treble |
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| 93 | 93 | | 65damages, costs and attorney's fees. If the party alleged to have retaliated under this section was a |
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| 94 | 94 | | 66state agency, sovereign immunity shall not be a defense to the action. A violation of an |
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| 95 | 95 | | 67employee's rights under this section shall constitute a prohibited retaliatory action under |
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| 96 | 96 | | 68subsection (b) of section 185 of chapter 149 if the employee is an employee for purposes of said |
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| 97 | 97 | | 69section 185. A person who willfully files a false report of abuse with the department or willfully |
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| 98 | 98 | | 70testifies falsely or willfully provides the department or any designated investigating agency with |
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| 99 | 99 | | 71false information in the course of an investigation or any other department proceeding shall not |
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| 100 | 100 | | 72be afforded the protections of this subsection. |
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| 101 | 101 | | 73 (f) Reports made pursuant to subsections (a) and (b) shall contain the name, address |
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| 102 | 102 | | 74where the elderly person may be contacted, and approximate age of the elderly person who is the |
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| 103 | 103 | | 75subject of the report, information regarding the nature and extent of the abuse, the name of the |
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| 104 | 104 | | 76person's caretaker, if known, any medical treatment being received or immediately required, if |
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| 105 | 105 | | 77known, any other information the reporter believes to be relevant to the investigation, and the |
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| 106 | 106 | | 78name and address of the reporter and where said reporter may be contacted, if the reporter wishes 5 of 14 |
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| 107 | 107 | | 79to provide said information. The department shall publicize the provisions of this section and the |
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| 108 | 108 | | 80process by which reports of abuse shall be made. |
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| 109 | 109 | | 81 SECTION 6. Said section 15 of said chapter 19A, as so appearing, is hereby amended by |
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| 110 | 110 | | 82adding the following subsection:- |
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| 111 | 111 | | 83 (g) Any privilege established by sections one hundred and thirty-five A and one hundred |
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| 112 | 112 | | 84and thirty-five B of chapter one hundred and twelve or section twenty B of chapter two hundred |
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| 113 | 113 | | 85and thirty-three relating to the exclusion of confidential communications shall not prohibit the |
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| 114 | 114 | | 86filing of a report pursuant to the provisions of subsection (a), (b) or (c). |
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| 115 | 115 | | 87 SECTION 7. Section 16 of said chapter 19A, as so appearing, is hereby amended by |
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| 116 | 116 | | 88striking out subsection (a) and asserting in place thereof the following subsection:- |
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| 117 | 117 | | 89 (a) Subject to appropriation, the department shall develop a coordinated system of |
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| 118 | 118 | | 90protective services for all elderly persons in the commonwealth, except those residing in |
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| 119 | 119 | | 91facilities licensed under sections 51, 57D, or 71 of chapter 111, who are determined to be abused. |
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| 120 | 120 | | 92The protective services system shall also extend to any elderly persons who have been |
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| 121 | 121 | | 93involuntarily committed pursuant to chapter 123, even if they reside in a facility licensed under |
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| 122 | 122 | | 94sections 51, 57D, or 71 of chapter 111. In planning this system, the department shall require |
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| 123 | 123 | | 95input from other protective service agencies and other agencies currently involved in the |
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| 124 | 124 | | 96provision of social, health, legal, nutritional and other services to the elderly, as well as elderly |
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| 125 | 125 | | 97advocacy organizations. |
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| 126 | 126 | | 98 SECTION 8. Section 16 of said chapter 19A, as so appearing, is hereby amended by |
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| 127 | 127 | | 99adding the following subsections:- 6 of 14 |
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| 128 | 128 | | 100 (g) If the department receives a report which alleges the abuse of an elderly person whose |
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| 129 | 129 | | 101caretaker is a state agency, the department shall notify the general counsel of the office of the |
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| 130 | 130 | | 102secretary of health and human services, or his designee, within such office, and the state agency |
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| 131 | 131 | | 103which provides services to the elderly person. The department shall investigate the abuse and |
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| 132 | 132 | | 104arrange for protective services, as provided in section 18. The department shall take reasonable |
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| 133 | 133 | | 105steps to avoid unnecessary, unwarranted or counterproductive duplication between any internal |
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| 134 | 134 | | 106investigation or inquiry by the state agency and the department’s investigation. The state agency |
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| 135 | 135 | | 107may, at its discretion, utilize the department’s investigation in lieu of an internal investigation |
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| 136 | 136 | | 108conducted by said state agency. |
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| 137 | 137 | | 109 (h) The department is authorized to gain immediate access to facilities controlled by state |
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| 138 | 138 | | 110agencies upon receiving a report of elder abuse in such facilities, and to request the disclosure of |
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| 139 | 139 | | 111documents pertaining to allegations of abuse occurring within such facilities. |
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| 140 | 140 | | 112 (i) If the department receives a report which alleges the abuse of an elderly person whose |
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| 141 | 141 | | 113caretaker is not a state agency, and who: (1) resides in a facility not licensed under sections 51, |
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| 142 | 142 | | 11457D or 71 of chapter 111; or (2) is involuntarily committed pursuant to chapter 123, the |
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| 143 | 143 | | 115department shall investigate the abuse and arrange for protective services, as provided in section |
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| 144 | 144 | | 11618. |
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| 145 | 145 | | 117 (j) If the department receives a report which alleges the abuse of an elderly person who |
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| 146 | 146 | | 118resides in a facility licensed under sections 51, 57D, or 71 of chapter 111, who is not |
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| 147 | 147 | | 119involuntarily committed pursuant to chapter 123, the department shall refer immediately such |
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| 148 | 148 | | 120report to the department of public health. 7 of 14 |
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| 149 | 149 | | 121 (k) The department shall provide training to all employees conducting investigations or |
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| 150 | 150 | | 122furnishing protective services to elderly persons in the care of state agencies that is specifically |
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| 151 | 151 | | 123focused on best practices when responding to claims of abuse in prisons, jails, commitment |
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| 152 | 152 | | 124centers, and other custodial settings. |
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| 153 | 153 | | 125 (l) The department shall issue and implement regulations to ensure that elders in prisons, |
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| 154 | 154 | | 126jails, civil commitment centers, houses of correction, and similar facilities are notified of the |
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| 155 | 155 | | 127department’s protective services program and how to report abuse under this chapter. |
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| 156 | 156 | | 128 SECTION 9. Said chapter 19A is hereby further amended by striking out section 18, as |
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| 157 | 157 | | 129so appearing, and inserting in place thereof the following section:- |
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| 158 | 158 | | 130 (a) The department or its designated agency shall assess and evaluate the information |
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| 159 | 159 | | 131reported pursuant to the provisions of section fifteen. |
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| 160 | 160 | | 132 Such assessment shall include a visit to the residence of the elderly person who is the |
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| 161 | 161 | | 133subject of the report, or the facility in which they are living, and may include consultations with |
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| 162 | 162 | | 134appropriate service agencies and individuals who have knowledge of the elderly person's |
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| 163 | 163 | | 135situation including the person filing the report. The elderly person who is the subject of the |
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| 164 | 164 | | 136report shall receive written notice that an assessment is being conducted and shall have the right |
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| 165 | 165 | | 137to review the file and report developed as a result of the assessment. |
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| 166 | 166 | | 138 (b) If the elderly person resides in a facility, the assessment shall include a visit to the |
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| 167 | 167 | | 139facility, an evaluation of the environment of the facility, and a written determination of the risk |
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| 168 | 168 | | 140of physical or emotional injury to any other residents or elderly persons in the same facility. 8 of 14 |
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| 169 | 169 | | 141 (c) If the assessment results in a determination that the elderly person is suffering from |
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| 170 | 170 | | 142abuse, the department or the designated agency shall evaluate the elderly person's functional |
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| 171 | 171 | | 143capacity, situation, and resources and shall develop a service plan for the provision of protective |
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| 172 | 172 | | 144services. Said plan shall be appropriate to the needs of the elderly person and shall utilize the |
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| 173 | 173 | | 145least restrictive alternatives. |
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| 174 | 174 | | 146 The department shall adopt rules and regulations establishing time limits for the |
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| 175 | 175 | | 147completion of assessments and evaluations and for the implementation of service plans; |
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| 176 | 176 | | 148provided, however, that if an emergency exists, assessments shall be completed within twenty- |
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| 177 | 177 | | 149four hours of the receipt of the report. |
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| 178 | 178 | | 150 If an assessment results in a determination that the elderly person has suffered serious |
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| 179 | 179 | | 151abuse, the department or designated agency shall report such determination to the district |
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| 180 | 180 | | 152attorney of the county where the abuse occurred within forty-eight hours. The district attorney |
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| 181 | 181 | | 153may investigate and decide whether to initiate criminal proceedings. |
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| 182 | 182 | | 154 (d) If the elderly person’s caretaker is a state agency, upon the completion of the |
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| 183 | 183 | | 155assessment, the department may forward a copy of the report developed as a result of the |
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| 184 | 184 | | 156assessment to the state agency and any other agency of the Commonwealth who has jurisdiction |
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| 185 | 185 | | 157over the alleged victim, the matter under investigation, or associated professional misconduct, |
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| 186 | 186 | | 158including, but not limited to, the attorney general or appropriate district attorney, for possible |
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| 187 | 187 | | 159prosecution or the imposition of remedial or disciplinary measures in accordance with the |
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| 188 | 188 | | 160requirements of any applicable law or regulation. |
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| 189 | 189 | | 161 The report shall contain the information acquired during the assessment and all other |
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| 190 | 190 | | 162information deemed appropriate by the department, including appropriate recommendations to 9 of 14 |
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| 191 | 191 | | 163remedy any substantiated abuse and improve the safety of elderly persons cared for by the state |
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| 192 | 192 | | 164agency. |
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| 193 | 193 | | 165 In addition, regardless of whether abuse is substantiated or not, the designated |
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| 194 | 194 | | 166investigator may make a determination that a violation of other state statutes and/or regulations |
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| 195 | 195 | | 167may exist and whether such a violation poses a risk of harm to elderly persons. If such a |
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| 196 | 196 | | 168violation is suspected the investigator may make recommendations regarding actions needed to |
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| 197 | 197 | | 169remedy the suspected violation, including, but not limited to, referral of the matter to the |
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| 198 | 198 | | 170appropriate agency of the commonwealth that has jurisdiction over the violation. |
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| 199 | 199 | | 171 (e) The department or the designated agency shall provide or arrange for protective |
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| 200 | 200 | | 172services in accordance with the service plan developed pursuant to the provisions of subsection |
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| 201 | 201 | | 173(c). Protective services shall include, but not be limited to, the following: the capacity to respond |
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| 202 | 202 | | 174to an emergency; protective services case work; the capacity to provide or arrange for a |
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| 203 | 203 | | 175homemaker, home-health aide, transportation, legal assistance, counseling, nutrition services, |
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| 204 | 204 | | 176guardianship and conservatorship, protective order through the court, emergency shelter, foster |
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| 205 | 205 | | 177care, adult day care services, assistance in applying for medical parole, as described in section |
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| 206 | 206 | | 178119A of chapter 127, and assistance in applying for a reasonable accommodation. |
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| 207 | 207 | | 179 (g) The department or the designated agency is authorized to arrange for additional |
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| 208 | 208 | | 180services necessary to assist and protect elderly persons who have been abused, including, but not |
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| 209 | 209 | | 181limited to, the following: medical care, mental health care and emergency financial assistance. |
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| 210 | 210 | | 182 SECTION 10. Section 22 of said chapter 19A, as so appearing, is hereby amended by |
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| 211 | 211 | | 183adding the following paragraph:- 10 of 14 |
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| 212 | 212 | | 184 No elderly person residing in a prison, jail, civil commitment center, house of correction, |
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| 213 | 213 | | 185or similar facility shall be charged for the provision of protective services. |
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| 214 | 214 | | 186 SECTION 11. Said chapter 19A is hereby further amended by striking out section 24, as |
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| 215 | 215 | | 187so appearing, and inserting in place thereof the following section:- |
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| 216 | 216 | | 188 (a) Within 120 days following the end of each fiscal year, the department shall submit a |
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| 217 | 217 | | 189report to the governor, the general court and the public which shall include a description of the |
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| 218 | 218 | | 190activities of the department and all designated agencies pursuant to sections fourteen to 26, |
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| 219 | 219 | | 191inclusive, during the preceding fiscal year. Said report shall contain: |
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| 220 | 220 | | 192 (1) statistical information about the number and types of reports received under section |
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| 221 | 221 | | 193fifteen; |
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| 222 | 222 | | 194 (2) the results of the assessments and evaluations conducted and the amount, type and |
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| 223 | 223 | | 195costs of services provided under section eighteen; |
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| 224 | 224 | | 196 (3) information on the quality of services provided and the results of such services in |
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| 225 | 225 | | 197terms of alleviating abuse; |
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| 226 | 226 | | 198 (4) the number of reports of abuse of elderly persons in the care of a state agency; |
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| 227 | 227 | | 199 (5) the number of reports of abuse of elderly persons in the care of a state agency that |
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| 228 | 228 | | 200resulted in a substantiated finding of abuse; |
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| 229 | 229 | | 201 (6) the number of cases referred by the department to a prosecutor; |
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| 230 | 230 | | 202 (7) the number of cases referred to a prosecutor in which the elderly person who was |
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| 231 | 231 | | 203abused was in the care of a state agency; 11 of 14 |
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| 232 | 232 | | 204 (8) any recommendations issued by the department to a state agency for the purpose of |
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| 233 | 233 | | 205preventing and remediating elder abuse; |
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| 234 | 234 | | 206 (9) the number of reports of abuse of elderly persons in covered facilities, who are not in |
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| 235 | 235 | | 207the care of a state agency; and |
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| 236 | 236 | | 208 (10) the number of reports of abuse of elderly persons in covered facilities, who are not in |
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| 237 | 237 | | 209the care of a state agency, which resulted in a substantiated finding of abuse. |
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| 238 | 238 | | 210 (b) Said report shall identify problems that may arise in the implementation of this |
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| 239 | 239 | | 211chapter and shall contain the recommendations of the department for action on the part of the |
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| 240 | 240 | | 212legislature. |
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| 241 | 241 | | 213 (c) Within 120 days following the end of each fiscal year, each state agency responsible |
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| 242 | 242 | | 214for the care or custody of elderly persons shall submit a report to the governor, the general court |
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| 243 | 243 | | 215and the public, describing the state agency’s actions taken during the preceding three fiscal years |
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| 244 | 244 | | 216in response to recommendations issued to the state agency by Elder Affairs, if any |
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| 245 | 245 | | 217recommendations were made during the preceding three fiscal years. Said report shall also |
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| 246 | 246 | | 218include the number and type of employment actions taken as a result of substantiated findings of |
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| 247 | 247 | | 219abuse of elderly persons within the agency’s care. |
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| 248 | 248 | | 220 SECTION 12. Section 25 of said chapter 19A, as so appearing, is hereby amended by |
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| 249 | 249 | | 221striking out the word “twenty-four,” and inserting in place thereof the word “twenty-six.” |
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| 250 | 250 | | 222 SECTION 13. Said chapter 19A is hereby further amended by striking out section 26, as |
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| 251 | 251 | | 223so appearing, and inserting in place thereof the following section:- |
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| 252 | 252 | | 224 Section 26. 12 of 14 |
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| 253 | 253 | | 225 (a) Nothing in this chapter shall be construed to be a limitation of the powers and |
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| 254 | 254 | | 226responsibilities assigned by law to other departments or agencies, nor shall this chapter be |
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| 255 | 255 | | 227construed to relieve any such department or agency of its obligations to investigate and respond |
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| 256 | 256 | | 228appropriately to alleged incidents of abuse. |
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| 257 | 257 | | 229 (b) If the department determines that an investigation under this section or section 18 |
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| 258 | 258 | | 230would duplicate or interfere with an ongoing investigation by law enforcement officials |
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| 259 | 259 | | 231concerning possible criminal conduct arising out of the same conduct, it may, in consultation |
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| 260 | 260 | | 232with the secretary of health and human services, delay or defer such investigation, if the |
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| 261 | 261 | | 233department determines that the health and the safety of elderly persons shall not be adversely |
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| 262 | 262 | | 234affected thereby and that the department's ability to conduct a later investigation shall not be |
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| 263 | 263 | | 235unreasonably impaired by such delay or deferral. In all cases including, but not limited to, those |
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| 264 | 264 | | 236in which the department agrees to delay or defer its investigation, the attorney general or district |
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| 265 | 265 | | 237attorney shall keep the department informed of the status of the criminal investigation and the |
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| 266 | 266 | | 238department shall provide to the attorney general or the district attorney any and all information |
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| 267 | 267 | | 239that may be relevant to the criminal investigation. In cases in which the department agrees to |
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| 268 | 268 | | 240delay or defer its investigation, it shall monitor the progress of the criminal investigation and |
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| 269 | 269 | | 241shall determine, after consultation with such law enforcement agencies, when or whether the |
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| 270 | 270 | | 242department’s investigation should be initiated or resumed. |
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| 271 | 271 | | 243 (c) If the department or a protective services agency receives a report of abuse of an |
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| 272 | 272 | | 244elderly person who is in the care or custody of a state agency, the state agency shall immediately |
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| 273 | 273 | | 245allow the department or the protective services agency to enter and inspect facilities of the state |
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| 274 | 274 | | 246agency. The state agency shall furnish a space in which an investigator or investigators may meet |
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| 275 | 275 | | 247confidentially with the elderly person and any necessary witnesses for any length of time deemed 13 of 14 |
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| 276 | 276 | | 248necessary by the protective services agency. The state agency shall allow the investigator to meet |
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| 277 | 277 | | 249with the elderly person and any necessary witnesses. If the elderly person is in need of medical |
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| 278 | 278 | | 250care, the investigator shall collaborate with the state agency to ensure that the elderly person |
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| 279 | 279 | | 251receives appropriate medical care. |
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| 280 | 280 | | 252 (d) The department shall have full access to any facility run by a state agency which is |
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| 281 | 281 | | 253responsible for the care of elderly persons, in consultation with the leaders of the state agency. |
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| 282 | 282 | | 254The state agency shall provide the department access to any relevant records pertaining to a |
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| 283 | 283 | | 255report of abuse and the alleged victim. |
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| 284 | 284 | | 256 (e) If, upon completion of investigation of a report of abuse of an elderly person whose |
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| 285 | 285 | | 257caretaker is a state agency there is reasonable cause to conclude that such abuse did occur, or |
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| 286 | 286 | | 258whenever, upon its own motion, the department determines that a formal hearing is necessary to |
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| 287 | 287 | | 259ascertain the scope and remedy of such abuse of elderly persons whose caretaker is a state |
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| 288 | 288 | | 260agency, the department may initiate a formal investigation, including a hearing, to determine the |
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| 289 | 289 | | 261nature and the extent of such abuse and what recommendations, if any, should be made with |
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| 290 | 290 | | 262respect to such occurrence. Testimony in department proceedings may, in the discretion of the |
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| 291 | 291 | | 263department, be recorded and taken under oath. The department may, in its discretion, permit any |
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| 292 | 292 | | 264party to testify, to call and examine witnesses, to introduce evidence or to cross-examine |
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| 293 | 293 | | 265witnesses. Before testifying, all witnesses shall be given a copy of the regulations governing the |
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| 294 | 294 | | 266department proceedings. Each witness shall be entitled to be represented by counsel and may |
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| 295 | 295 | | 267refuse to submit evidence or give testimony if such evidence or testimony could tend to |
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| 296 | 296 | | 268incriminate him. All proceedings of the department shall be public unless the department, in |
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| 297 | 297 | | 269consultation with the secretary of health and human services, votes to go into executive session. |
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| 298 | 298 | | 270Any person whose name is mentioned during a proceeding under this section and who may be 14 of 14 |
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| 299 | 299 | | 271adversely affected by any action of the department as a result of the proceedings shall have the |
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| 300 | 300 | | 272right to appear personally, to be represented by counsel in connection with the proceedings, to |
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| 301 | 301 | | 273call and examine witnesses, to introduce evidence or to cross-examine witnesses. |
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| 302 | 302 | | 274 (f) Upon the completion of any formal investigation, the department shall: (1) issue a |
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| 303 | 303 | | 275written report and refer the same to the appropriate state agency. Such report shall contain |
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| 304 | 304 | | 276findings of fact concerning the alleged occurrence of abuse that was the subject of the |
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| 305 | 305 | | 277investigation, together with a finding as to whether or not such abuse did occur and, if so, what |
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| 306 | 306 | | 278actions are necessary to remedy the causes of such abuse or to prevent its reoccurrence; (2) refer |
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| 307 | 307 | | 279any matters for which there is reason to believe that a crime has been committed to the attorney |
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| 308 | 308 | | 280general, the United States attorney or a district attorney for the county wherein such crime was |
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| 309 | 309 | | 281committed; (3) refer any matters for which there is reason to believe that employee misconduct |
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| 310 | 310 | | 282has occurred to the state agency employing such person for imposition of disciplinary measures |
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| 311 | 311 | | 283in accordance with the requirements of any applicable law, regulation or collective bargaining |
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| 312 | 312 | | 284agreement; or (4) refer any matters for which there is reason to believe that misconduct has |
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| 313 | 313 | | 285occurred by a contractor with a state agency or by such contractor's agent, to the state agency |
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| 314 | 314 | | 286contracting with such party for termination of such contract or for such other action as may be |
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| 315 | 315 | | 287deemed appropriate by such state agency. |
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