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ARIZONA STATE SENATE

Forty-seventh Legislature, Second Regular Session

FACT SHEET FOR H.B. 2558

adult protective services; investigations; hearings

Purpose

            Establishes an appeals process for persons who are accused of abuse, neglect or exploitation of a vulnerable adult and investigated by the Department of Economic Security (DES) Adult Protective Services (APS).

Background

            APS was established by Laws 1980, Chapter 127 to investigate reports of abuse, neglect or exploitation of vulnerable adults and offer appropriate protective services.  Services are provided to vulnerable and incapacitated adults, over the age of 18, when an allegation of abuse, neglect or exploitation is received.  APS offers a 24 hours a day, seven days a week state hotline where people can report abuse, neglect and exploitation of Arizona’s vulnerable or incapacitated adults. APS operates within the DES Division of Aging and Community Services.

            The Ombudsman-Citizens’ Aide conducted an investigation of a complaint against APS in 2005 and made three recommendations: 1) APS should provide written closure letters to those being investigated for abuse and neglect informing them if the allegation was substantiated or not; 2) the Legislature should clarify statute requiring APS to notify the accused person of the investigation outcome in writing; and 3) the Legislature should create an appeals process in statute, similar to the process used by Child Protective Services, prior to the substantiation being posted in the APS registry of abuse.  This legislation codifies the second and third recommendations.

            A contested case proceeding (CCP) requires all parties to be afforded an opportunity for a hearing before an agency takes action to determine the legal rights, duties or privileges of a party.  In a CCP, all parties are given the opportunity to respond and present evidence on all issues involved.  The presiding officer may issue subpoenas for the attendance of witnesses.  In addition, a person may not refuse to attend and testify or produce evidence sought by an agency, and a court order may be issued compelling testimony.  The hearing may be conducted in an informal matter without adherence to the rules of evidence required in judicial proceedings.  Evidence may be received at the discretion of the presiding officer and notice may be taken of judicially cognizable facts.  A final decision is required to be in writing or stated in the record.  This legislation requires DES to hold a CCP hearing, with some specific differences.

            There may be a fiscal impact to DES associated with this legislation.

Provisions

Adult Protective Services Registry

1. Requires DES to maintain an Adult Protective Services Registry (Registry) of substantiated reports of abuse, neglect and exploitation of vulnerable adults.

2. Requires DES to incorporate duplicate reports into the original report, and prohibits classifying duplicative reports as new reports.

3. Requires the Registry to contain the following information: a) the name and date of birth of the person determined to have abused, neglected or exploited a vulnerable adult; b) the nature of the allegation; and c) the date and description of the disposition of the allegation.

4. Makes information in the Registry available to the public on written request, and allows DES to charge a fee for processing public requests for Registry information.

5. Prohibits the names of vulnerable adults and reporting sources from being reported to the Registry.

6. Requires DES to maintain a report in the Registry for ten years after the date of entry and to annually purge reports and investigative outcomes that are more than ten years old.

7. Allows any person subject to an APS investigation to request confirmation that DES has purged its report containing identifying information after ten years and requires DES to provide written confirmation.

8.  Exempts DES from the requirement to provide a copy of an administrative decision to the Attorney General for information maintained in the Registry.

Notification

9. Requires DES to notify persons alleged to have abused or neglected a vulnerable adult, by first class mail within 15 days after the investigation is complete, that DES intends to substantiate the allegation, and that the accused has a right to receive a copy of the allegation report, as well as the right to a hearing.

10. Requires the notification to state that if DES does not amend the report information within 60 days of a requested hearing, the accused person has a right to a hearing unless the accused person is a party to another current proceeding involving an allegation of abuse or neglect or a court or hearing officer has made findings of the alleged abuse or neglect.

11. Requires DES to notify the accused and the accuser with a copy of the investigation outcome at one of the following times:

a) if the report is unsubstantiated or if by preponderance of evidence, there is reason to believe the allegation occurred, but no perpetrator was identified.

b) after the time to request a hearing has lapsed.

c) after a final administrative decision has been made.

Hearing Request and Allegation Review

12. Requires a hearing request to be received by DES within 15 calendar days of the date on the notice.

13. Requires DES, if a hearing request is made, to conduct a review before the hearing and allow the accused person to provide written or verbal information regarding the allegation. 

14. Requires DES to amend the report, notify the accused person and not hold a hearing if it determines at the review that the accused person did not engage in the alleged conduct by a preponderance of evidence.

15. Requires DES to notify the DES Office of Appeals (Office) of a hearing request within five days of the review if the report was not amended. 

16. Requires DES to forward the hearing request and all records and reports regarding the hearing to the Office within ten days after the request is made, with the identity of the reporting source redacted.

Hearings

17. Requires the Office to hold a CCP, with the following exceptions:

a) a vulnerable adult who is the victim or witness of abuse, neglect or exploitation is not required to testify.

b) the identity of the reporting source shall not be disclosed without permission, and the reporting source is not required to testify.

c) a written statement from the reporting source may be admissible if the time, content and circumstances of the statement are sufficiently indicative of its reliability.

d) if the person requesting the hearing fails to appear, the hearing must be vacated and a substantiated finding of abuse, neglect or exploitation will be entered. 

18. Allows a hearing to be rescheduled for good cause, if  requested within 15 days after the date of notice of vacating the hearing for failure to appear.

19. Requires the hearing officer, upon completion of presenting evidence, to determine if the DES findings on the conduct of the accused person are supported by a preponderance of evidence and  to order DES to amend the report if there is insufficient evidence.

20. Requires all final decisions substantiating an allegation of abuse, neglect or exploitation be reported to the Registry within 30 days.

Miscellaneous

21. Requires any person receiving information regarding the hearing to maintain confidentiality.

22. Applies this legislation only to allegations of abuse, neglect or exploitation received by DES on or after July 1, 2007.

23. Exempts DES from the rulemaking requirements of the Arizona Administrative Procedures Act to implement this legislation.

24. Defines “amend the finding,” “amend the information” and “final decision.”

25. Makes technical changes.

26. Becomes effective on the general effective date.

House Action

HS                   2/16/06     DPA     8-0-0-0

3^rd Read           3/9/06                    58-1-1-0

Prepared by Senate Research

March 16, 2006

KM/JR/jas