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    New Colorado Criminal Law – Mandatory Reporting for Mistreatment Of At-Risk Adults

    Introduction – Before this new Law – Colorado was one of only four states that does not have a law requiring mandatory reporting to adult protective services for social workers, physicians and other professionals (the other states are New York, South Dakota and North Dakota).

    The old law simply says that a report should be made and “urges” professionals to report within 24 hours.

    The General Assembly enacted Senate Bill 12-078, which clarifies definitions and modifies requirements concerning the mistreatment, self-neglect, and exploitation of at-risk adults.

    Among other things, Here IS What The Bill Does:

    • expands the definition of an at-risk adult to include persons over the age of 70;

    • for observed or suspected mistreatment or self-neglect, it requires a person in a specified profession or occupation (mandatory reporter) to make an immediate oral report within 24 hours;

    • for observed or suspected fiscal exploitation, it urges a mandatory reporter to make animmediate oral report;

    • removes the requirement that an abuse reporter follow an oral report within a written report within 48 hours;

    • creates a class 3 misdemeanor for failure to report mistreatment or self-neglect of an at-risk adult; and

    • increases the penalty for releasing confidential information about an adult protective services investigation from a class 2 petty offense with a maximum penalty of a $300 fine to a class 3 misdemeanor.

    In addition, the bill directs each county to require each protective services employee to undergo a fingerprint background check, and it creates the 17-member Elder Abuse Task Force, which is authorized to meet during the 2012 legislative interim. The purpose of the task force is to study, make recommendations, and report on various issues related to at-risk elderly adults.

    SB12-078, Protections for At-Risk Adults

     A Closer Look At the Bill – New Law:

    This bill modifies the Human Services Code (Title 26), Protective Services for Adults at Risk of Mistreatment or Self-Neglect (Article 3.1), by adding privacy protections for at-risk adults, requiring written permission from the subject of alleged abuse or neglect, and clarifying the methodology of and circumstances surrounding investigations of allegations of abuse.  Personnel who will interact with at-risk adults are required to undergo a background check. A new section is added to the statute, creating an at-risk adult protective services task force responsible for studying, making recommendations, and reporting on issues relating to the mistreatment, self-neglect and exploitation of at-risk adults.

    Provisions of the Bill:

    Part (1), Article 3.1, Title 26 – Protective Services for At-Risk Adults – is modified to include:

    In the event of a report of exploitation, self-neglect or mistreatment, an evaluation of the individual circumstances will be conducted in the place of an immediate investigation which was previously the required procedure.

    A clause to protect the privacy of the at-risk adult’s information in the event that a joint investigation is necessary and their personal information is shared.

    A clause that requires written consent of the at-risk adult, and the availability of financial records to agencies investigating on behalf of that individual. 

    Provision for counties to require prospective employees who will interact with at-risk adults to complete a fingerprint-based criminal history records check through CBI at the expense of the prospective employee.

    The bill also adds a new Part (3) that:

    Establishes an at-risk adult protective services task force which is responsible for studying, making recommendations, and reporting on issues relating to: Reporting of mistreatment, self-neglect and exploitation

    Here Are The Key AT Risk Provisions In The Colorado Law

    Concerning protections for at-risk adults.

    Protective Services for At-risk Adults

    26-3.1-101.  Definitions. As used in this article, unless the context otherwise requires:

    (1) “At-risk adult” means an individual eighteen years of age or older who is susceptible to mistreatment, as such term is defined in subsection (4) of this section or self-neglect as such term is defined in subsection (7) of this section self-neglect, or exploitation because the individual is unable to perform or obtain services necessary for the individual’s his or her health, safety, or welfare or lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the individual’s his or her person or affairs.

    (2)  “Caretaker” means a person as such term is defined in subsection (5) of this section, who:

    (a) Is responsible for the care of an at-risk adult as such term is defined in subsection (1) of this section, as a result of a family or legal relationship;

    (b) or who Has assumed responsibility for the care of an at-risk adult; or

    (c)  Is paid to provide care or services to an at-risk adult.

    (3)  “County department” means a county or district department of social services.

    (4)  “Exploitation” means an act or omission committed by a person that:

    (a)  Uses deception, harassment, intimidation, or undue influence to permanently or temporarily deprive an at-risk adult of the use, benefit, or possession of his or her money, assets, or property;

    (b)  In the absence of legal authority:

    (I)  Employs the services of a third party for the profit or advantage of the person or another person to the detriment of the at-risk adult; or

    (II)  Forces, compels, coerces, or entices an at-risk adult to perform services for the profit or advantage of the person or another person against the will of the at-risk adult; or

    (c)  Misuses the property of an at-risk adult in a manner that adversely affects the at-risk adult’s ability to receive health care or health care benefits or to pay bills for basic needs or obligations.

    (5)  “Financial institution” has the same meaning as set forth in section 6-21-102 (6), C.R.S.

    (3) (6)  “Least restrictive intervention” means acquiring or providing services, including protective services, for the shortest duration and to the minimum extent necessary to remedy or prevent situations of actual mistreatment, or self-neglect, or exploitation.

    (4) (7)  “Mistreatment” means an act or omission which that threatens the health, safety, or welfare of an at-risk adult as such term is defined in subsection (1) of this section, or which that exposes the an at-risk adult to a situation or condition that poses an imminent risk of death, serious bodily injury, or bodily injury to the at-risk adult. “Mistreatment” includes, but is not limited to:

    (a)  Abuse which that occurs:

    (I)  Where there is infliction of physical pain or injury, as demonstrated by, but not limited to, substantial or multiple skin bruising, bleeding, malnutrition, dehydration, burns, bone fractures, poisoning, subdural hematoma, soft tissue swelling, or suffocation;

    (II)  Where unreasonable confinement or restraint is imposed; or

    (III)  Where there is subjection to nonconsensual sexual conduct or contact classified as a crime under the “Colorado Criminal Code”, title 18, C.R.S.;

    (b)  Caretaker neglect which that occurs when adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision is not secured for the at-risk adult or is not provided by a caretaker in a timely manner and with the degree of care that a reasonable person in the same situation would exercise; except that the withholding, of artificial nourishment in accordance with the “Colorado Medical Treatment Decision Act”, article 18 of title 15, C.R.S., shall not be considered as abuse withdrawing, or refusing of any treatment, including but not limited to resuscitation, cardiac pacing, mechanical ventilation, dialysis, artificial nutrition and hydration, any medication or medical procedure or device, in accordance with any valid medical directive or order, or as described in a palliative plan of care, shall not be deemed caretaker neglect. As used in this paragraph (b), “medical directive or order” includes, but is not limited to, a medical durable power of attorney, a declaration as to medical treatment executed pursuant to section 15-18-104, C.R.S., a medical orders for scope of treatment form executed pursuant to article 18.7 of title 15, C.R.S., and a CPR directive executed pursuant to article 18.6 of title 15, C.R.S.

    (c)  Exploitation which is the illegal or improper use of an at-risk adult for another person’s advantage.

    (5) (8)  “Person” means one or more individuals, limited liability companies, partnerships, associations, corporations, legal representatives, trustees, receivers, or the state of Colorado, and all political subdivisions and agencies thereof.

    (6) (9)  “Protective services” means services provided by the state or political subdivisions or agencies thereof in order to prevent the mistreatment, or self-neglect, or exploitation of an at-risk adult. Such services include, but are not limited to: Receiving and investigating reports of mistreatment, or self-neglect, the provision of or exploitation, providing casework and counseling services, and arranging for, coordinating, delivering where appropriate, and monitoring services, including medical care for physical or mental health needs, protection from mistreatment, and assistance with application for public benefits, referral to community service providers, and initiation of probate proceedings.

    (7) (10)  “Self-neglect” means an act or failure to act whereby an at-risk adult substantially endangers the adult’s his or her health, safety, welfare, or life by not seeking or obtaining services necessary to meet the adult’s his or her essential human needs. Choice of lifestyle or living arrangements shall not, by itself, be evidence of self-neglect. Refusal of medical treatment, medications, devices, or procedures by an adult or on behalf of an adult by a duly authorized surrogate medical decision maker or in accordance with a valid medical directive or order, or as described in a palliative plan of care, shall not be deemed self-neglect. Refusal of food and water in the context of a life-limiting illness shall not, by itself, be evidence of self-neglect. As used in this subsection (10), “medical directive or order” includes, but is not limited to, a medical durable power of attorney, a declaration as to medical treatment executed pursuant to section 15-18-104, C.R.S., a medical orders for scope of treatment form executed pursuant to article 18.7 of title 15, C.R.S., and a CPR directive executed pursuant to article 18.6 of title 15, C.R.S.

    26-3.1-102.  Reporting requirements.

    (1) (a)  An immediate oral report of abuse should be made or caused to be made within twenty-four hours to the a county department or during non-business hours to a local law enforcement agency responsible for investigating violations of state criminal laws protecting at-risk adults by any person specified in paragraph (b) of this subsection (1) who has observed the mistreatment, or self-neglect, or exploitation of an at-risk adult or who has reasonable cause to believe that an at-risk adult has been mistreated, or is self-neglected, or has been exploited and is at imminent risk of mistreatment, or self-neglect, or exploitation.

    (b) The following persons are urged to make or initiate an initial oral report within twenty-four hours: followed by a written report within forty-eight hours.

    (I)  Physicians, surgeons, physicians’ assistants, or osteopaths, including physicians in training, podiatrists, and occupational therapists;

    (II)  Medical examiners or and coroners;

    (III)  Registered nurses, or licensed practical nurses, and nurse practitioners;

    (IV)  Hospital and nursing home long-term care facility personnel engaged in the admission, care, or treatment of patients;

    (V)  Psychologists and other mental health professionals;

    (VI)  Social work practitioners;

    (VII)  Dentists;

    (VIII)  Law enforcement officials and personnel;

    (IX)  Court-appointed guardians and conservators;

    (X)  Fire protection personnel;

    (XI)  Pharmacists;

    (XII)  Community-centered board staff;

    (XIII)  Personnel of banks, savings and loan associations, credit unions, and other lending or financial institutions; and

    (XIV)  State and local long-term care ombudsmen.

    (XV)  Any A caretaker, staff member, or employee of or volunteer or consultant for any a licensed or certified care facility, agency, home, or governing board, including but not limited to home health providers.

    (c)  In addition to those persons urged by this subsection (1) to report known or suspected mistreatment, or self-neglect, or exploitation of an at-risk adult and circumstances or conditions which that might reasonably result in mistreatment, or self-neglect, or exploitation, any other person may report such known or suspected mistreatment, or self-neglect, or exploitation and circumstances or conditions which that might reasonably result in mistreatment, or self-neglect, or exploitation of an at-risk adult to the local law enforcement agency or the county department. Upon receipt of such report, the receiving agency shall prepare a written report within forty-eight hours.

    (2)  Pursuant to subsection (1) of this section, the report shall include:

    (a) The name and address of the at-risk adult;

    (b) The name and address of the at-risk adult’s caretaker, if any;

    (c) The age, if known, of such the at-risk adult;

    (d) The nature and extent of such the at-risk adult’s injury, if any;

    (e) The nature and extent of the condition that will reasonably result in mistreatment, or self-neglect, or exploitation; and

    (f) Any other pertinent information.

    (3)  A copy of the report prepared by the county department in accordance with subsections (1) and (2) of this section shall be forwarded within twenty-four hours to the district attorney’s office and the a local law enforcement agency. A report prepared by the a local law enforcement agency shall be forwarded within twenty-four hours to the county department and to the district attorney’s office.

    (4)  No person, including a person specified in subsection (1) of this section, shall knowingly make a false report of mistreatment, or self-neglect, or exploitation to a county department or local law enforcement agency. Any person who willfully violates the provisions of this subsection (4) commits a class 3 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S., and shall be liable for damages proximately caused thereby.

    (5)  Any person, except a perpetrator, complicitor, or coconspirator, who makes a report pursuant to this section shall be immune from any civil or criminal liability on account of such report, testimony, or participation in making such report, so long as such action was taken in good faith and not in reckless disregard of the truth or in violation of subsection (4) of this section.

    (6)  No person shall take any discriminatory, disciplinary, or retaliatory action against any person who, in good faith, makes a report or fails to make a report of suspected mistreatment, or neglect self-neglect, or exploitation of an at-risk adult.

    (7) (a)  Except as provided in paragraph (b) of this subsection (7), reports of the mistreatment, or self-neglect, or exploitation of an at-risk adult, including the name and address of any at-risk adult, member of said adult’s family, or informant, or any other identifying information contained in such reports, shall be confidential, and shall not be public information.

    (b)  Disclosure of the name and address of an at-risk adult or member of said adult’s family and other identifying a report of the mistreatment, self-neglect, or exploitation of an at-risk adult and information contained in relating to an investigation of such a report shall be permitted only when authorized by a court for good cause. Such disclosure shall not be prohibited when:

    (I) A criminal complaint, information, or indictment based on the report is filed; or

    (II) when There is a death of a suspected at-risk adult from mistreatment, or self-neglect, or exploitation and a law enforcement agency files a formal charge or a grand jury issues an indictment in connection with the death; or

    (III)  Such disclosure is necessary for the coordination of multiple agencies’ investigation of a report or for the provision of protective services to an at-risk adult.

    (c) Any person who violates any provision of this subsection (7) is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.

    26-3.1-103.   Evaluations – investigations – rules.

    (1)  The agency receiving a report of mistreatment, or self-neglect, or exploitation of an

    at-risk adult shall immediately make a thorough investigation immediately upon receipt evaluation of a report the reported level of risk. The immediate concern of the report evaluation shall be the protection of the at-risk adult. The investigation shall evaluation, at a minimum, shall include a face-to-face interview determination of a response time frame and whether an investigation of the at-risk adult alleged to be mistreated or self-neglected allegations is required. If a county department determines that an investigation is required, the county department shall arrange for its an investigation and subsequent provision of protective services to be conducted by persons trained to conduct such investigations and provide protective services.

    (2)  It is the general assembly’s intent that, in each county of the state, Each county department, law enforcement agencies agency, county departments of social services, district attorney’s office, and any other agencies agency responsible under federal law or the laws of this state to investigate mistreatment, or self-neglect, or exploitation of at-risk adults shall develop and implement cooperative agreements to coordinate the investigative duties of the such agencies. and that The focus of such agreements shall be to ensure the best protection for at-risk adults. The agreements shall provide for special requests by one agency for assistance from another agency and for joint investigations. The agreements shall further provide that each agency shall maintain the confidentiality of the information exchanged pursuant to such joint investigations.

    (3)  Each county or contiguous group of counties in the state in which a minimum number of reports of mistreatment, or self-neglect, or exploitation of at-risk adults are annually filed shall establish an at-risk adult protection team. The state board shall promulgate rules to specify the minimum number of reports that will require the establishment of an adult at-risk protection team. The at-risk adult protection team shall review the processes used to report and investigate mistreatment, or self-neglect, or exploitation of at-risk adults, review the provision of protective services for such adults, facilitate interagency cooperation, and provide community education on the mistreatment, and self-neglect, and exploitation of at-risk adults. The director of each county department is directed to shall create or coordinate a protection team for the respective county in accordance with rules adopted by the state board of human services, which rules shall govern the establishment, composition, and duties of the team and shall be consistent with this subsection (3).

    (4)  Notwithstanding any provision of section 24-72-204, C.R.S., or section 11-105-110, C.R.S., or any other applicable law concerning the confidentiality of financial records to the contrary, agencies investigating the exploitation of an at-risk adult shall be permitted to inspect all records of the at-risk adult on whose behalf the investigation is being conducted, including the at-risk adult’s financial records, upon execution of a prior written consent form by the at-risk adult, in accordance with section 6-21-103, C.R.S.

    26-3.1-104.  Provision of protective services for at-risk adults – consent – nonconsent – least restrictive intervention.

    (1)  If the a county director or such director’s designee determines that an at-risk adult is being mistreated, or self-neglected, or exploited, or is at risk thereof, and the at-risk adult consents in writing to protective services, the county director or designee shall immediately provide or arrange for the provision of protective services, which services shall be provided in accordance with the provisions of 28 CFR part 35, subpart B.

    (2)  If the a county director or designee determines that an at-risk adult is being or has been mistreated, or self-neglected, or exploited, or is at risk thereof, and if the at-risk adult appears to lack capacity to make decisions and does not consent to the receipt of protective services, the county director is urged, if no other appropriate person is able or willing, to petition the court, pursuant to part 3 of article 14 of title 15, C.R.S., for an order authorizing the provision of specific protective services and for the appointment of a guardian, for an order authorizing the appointment of a conservator pursuant to part 4 of article 14 of title 15, C.R.S., or for a court order providing for any combination of these actions.

    (3)  Any protective services provided pursuant to this section shall include only those services constituting the least restrictive intervention.


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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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