50-25.2 Vulnerable Adult Protection Services - North Dakota Statutes

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CHAPTER 50-25.2VULNERABLE ADULT PROTECTION SERVICES50-25.2-01. Definitions. As used in this chapter, unless the context otherwise requires:1."Abuse" means any willful act or omission of a caregiver or any other person which
results in physical injury, mental anguish, unreasonable confinement, sexual abuse
or exploitation, or financial exploitation to or of a vulnerable adult.2."Adult" includes a minor emancipated by marriage.3."Adult protective services" means remedial, social, legal, health, mental health, and
referral services provided for the prevention, correction, or discontinuance of abuse
or neglect which are necessary and appropriate under the circumstances to protect
an abused or neglected vulnerable adult, ensure that the least restrictive alternative
is provided, prevent further abuse or neglect, and promote self-care and
independent living.The term includes the following services provided by thedepartment or the department's designee:a.Receiving, evaluating, and assessing reports of alleged abuse or neglect;b.Arranging for and coordinating the provision of essential services;c.Providing case management and counseling for the purposes of planning and
providing social and other services needed by vulnerable adults;d.Arranging for and coordinating the provision of other services, including
financial management or assistance, legal assistance, and the services of
domestic violence programs;e.Monitoring the delivery of services to vulnerable adults and making progress
assessments; andf.Arranging for or providing, and coordinating, other services consistent with this
chapter.4."Caregiver" means any person who has assumed the legal responsibility or a
contractual obligation for the care of a vulnerable adult or has voluntarily assumed
responsibility for the care of a vulnerable adult. The term includes a facility operated
by any public or private agency, organization, or institution which provides services
to, and has assumed responsibility for the care of, a vulnerable adult.5."Department" means the department of human services.6."Essential services" means those services necessary to maintain and safeguard the
physical and mental health of a vulnerable adult which include sufficient and
appropriate food and clothing, temperate and sanitary shelter, treatment for mental
or physical needs, appropriate treatment for medical needs as determined by a
physician or other health care provider, and proper supervision.7."Financial exploitation" means the taking or misuse of property or resources of a
vulnerable adult by means of undue influence, breach of a fiduciary relationship,
deception, harassment, criminal coercion, theft, or other unlawful or improper
means.8."Least restrictive alternative" means adult protective services provided in a manner
no more restrictive of a vulnerable adult's liberty and no more intrusive than
necessary to achieve and ensure the provision of essential services.Page No. 19."Living independently" includes using the telephone, shopping, preparing food,
housekeeping, and administering medications.10."Mental anguish" means psychological or emotional damage that requires medical
treatment or care or is characterized by behavioral change or physical symptoms.11."Neglect" means the failure of a caregiver to provide essential services necessary to
maintain the physical and mental health of a vulnerable adult, or the inability or lack
of desire of the vulnerable adult to provide essential services necessary to maintain
and safeguard the vulnerable adult's own physical and mental health.12."Physical injury" means damage to bodily tissue caused by nontherapeutic conduct,
which includes fractures, bruises, lacerations, internal injuries, dislocations, physical
pain, illness, or impairment of physical function.13."Self-care" includes maintaining personal hygiene, eating, and dressing.14."Sexual abuse or exploitation" includes those sex offenses defined in sections
12.1-20-02, 12.1-20-03, 12.1-20-04, 12.1-20-05, 12.1-20-06, 12.1-20-07, and
12.1-20-11.15."Substantial functional impairment" means a substantial incapability, because of
physical limitations, of living independently or providing self-care as determined
through observation, diagnosis, evaluation, or assessment.16."Substantial mental impairment" means a substantial disorder of thought, mood,
perception, orientation, or memory that grossly impairs judgment, behavior, or ability
to live independently or provide self-care as revealed by observation, diagnosis,
evaluation, or assessment.17."Vulnerable adult" means an adult who has a substantial mental or functional
impairment.18."Willfully" means willfully as defined in section 12.1-02-02.50-25.2-02. Adult protective services program - Rules. The department, with theadvice and cooperation of county social service boards, shall develop, administer, and cause to
be implemented a program of protective services for vulnerable adults consistent with this
chapter.In developing and administering the program, the department, within the limits oflegislative appropriation, shall allocate and distribute funds for the purpose of providing adult
protective services.All law enforcement agencies, courts of competent jurisdiction, andappropriate state and local agencies shall cooperate in the implementation and enforcement of
this chapter. The department may adopt rules in accordance with chapter 28-32 for the purpose
of implementing the provisions of this chapter.50-25.2-03. Voluntary reporting of abuse or neglect - Method of reporting.1.A person who has reasonable cause to believe that a vulnerable adult has been
subjected to abuse or neglect, or who observes a vulnerable adult being subjected to
conditions or circumstances that reasonably would result in abuse or neglect, may
report the information to the department or the department's designee or to an
appropriate law enforcement agency. A law enforcement agency receiving a report
under this section shall immediately notify the department or the department's
designee of the report.2.A person reporting under this section may make an oral or written report, as soon as
possible. To the extent reasonably possible, a person who makes a report under
this section shall include in the report:Page No. 2a.The name, age, and residence address of the alleged vulnerable adult;b.The name and residence address of the caregiver, if any;c.The nature and extent of the alleged abuse or neglect or the conditions and
circumstances that would reasonably be expected to result in abuse or neglect;d.Any evidence of previous abuse or neglect, including the nature and extent of
the abuse or neglect; ande.Any other information that in the opinion of the person making the report may
be helpful in establishing the cause of the alleged abuse or neglect and the
identity of the individual responsible for the alleged abuse or neglect.50-25.2-04. Referral of complaints concerning long-term care facilities. Any reportreceived by the department or the department's designee under section 50-25.2-03 complaining
of any administrative action, as defined in section 50-10.1-01, that may adversely affect or may
have adversely affected the health, safety, welfare, or personal or civil rights of a resident in a
long-term care facility, as defined in section 50-10.1-01, or a person who was discharged from a
long-term care facility within nine months of the complaint, must be referred to the state
long-term care ombudsman for investigation pursuant to chapter 50-10.1.50-25.2-05.Evaluation and assessment - Participation by law enforcementagencies - Entry.1.The department or the department's designee shall immediately evaluate and
assess any report received by the department or the department's designee under
section 50-25.2-03, including the residence of the alleged vulnerable adult and the
circumstances surrounding the report. For the purpose of evaluating a report or
providing other adult protective services, the department or the department's
designee may:a.Interview the alleged vulnerable adult, with or without notice to the caregiver or
any other person, and interview the caregiver and any other person who may
have knowledge of the circumstances surrounding the report;b.Enter any premises in which the alleged vulnerable adult is an occupant, with
the consent of the alleged vulnerable adult or the caregiver;c.Have access to all records of the vulnerable adult:(1)If the vulnerable adult, or the caregiver or legal representative of the
vulnerable adult, has authorized the department or the department's
designee to have access; or(2)If the vulnerable adult, because of a substantial functional or mental
impairment, is unable to authorize the department or the department's
designee to have such access, does not have a legal guardian or other
legal representative, and is a person with respect to whom a report was
received by the department or the department's designee; andd.Coordinate the assessment and the provision of other adult protective services
with other state or local agencies, departments, or institutions, including the
agency of the protection and advocacy project, or private agencies,
organizations, and professionals providing services necessary or advisable for
the vulnerable adult.2.If a report alleges, or circumstances surrounding the report indicate, a violation of a
criminal statute or an imminent danger of serious physical injury or death of thePage No. 3vulnerable adult, the department or the department's designee shall notify the
appropriate law enforcement agency. In such a case, the law enforcement agency
may investigate the allegations in the report, take immediate steps if necessary to
protect the vulnerable adult, and institute legal proceedings if appropriate. The law
enforcement agency shall notify the department or the department's designee if such
action is taken. This section does not limit the responsibilities of law enforcement
agencies to enforce the laws of this state or preclude law enforcement agencies
from investigating, as appropriate, any alleged criminal conduct. In all other cases of
alleged abuse or neglect, the department or the department's designee may request
assistance in an evaluation or the provision of other adult protective services from an
appropriate law enforcement agency if necessary under the circumstances.3.If the alleged vulnerable adult, or the caregiver, does not consent to an evaluation or
investigation, a search warrant may be issued by a magistrate pursuant to law upon
a showing of probable cause to believe that abuse or neglect has occurred. A law
enforcement officer may make a reasonable entry of the premises without a search
warrant or consent of the alleged vulnerable adult or caregiver for the purpose of
rendering assistance if the officer has probable cause to believe that the delay of
entry would cause the alleged vulnerable adult to be in imminent danger of serious
physical injury or death.50-25.2-06.Provision of adult protective services.If the department or thedepartment's designee determines that a vulnerable adult demonstrates a need for adult
protective services, the department or the department's designee shall provide, or arrange for the
provision of, adult protective services, provided the vulnerable adult consents to and accepts the
services.50-25.2-07. Refusal or inability to accept adult protective services - Departmentalternatives. If a vulnerable adult who is subject to abuse or neglect is unable to consent and
accept, or the caregiver refuses, adult protective services determined by the department or the
department's designee to be necessary under this chapter, the department or the department's
designee may pursue any administrative, legal, and other remedies authorized by law which are
necessary and appropriate under the circumstances to protect the vulnerable adult and prevent
further abuse or neglect. The state's attorney of the county in which the vulnerable adult resides
or is located shall assist the department or the department's designee, upon request, in pursuing
an appropriate remedy. Available remedies include seeking:1.The appointment of a guardian under chapter 30.1-28 or a conservator under
chapter 30.1-29;2.A restraining order or other court order necessary under the circumstances;3.The removal of an abusive or neglectful guardian or conservator and appointment of
a suitable person as guardian or conservator, pursuant to sections 30.1-28-07 and
30.1-29-15;4.The provision of appropriate treatment under chapter 25-03.1;5.The criminal prosecution of the individual responsible for the abuse or neglect; and6.Any other available administrative, legal, or other remedies on behalf of the
vulnerable adult.50-25.2-08. Cost of adult protective services. The vulnerable adult is responsible forthe costs of providing adult protective services, except the receipt, evaluation, and assessment of
reports of suspected abuse or neglect pursuant to subdivision a of subsection 3 of section
50-25.2-01, if the department or the department's designee determines, based on standards set
by the department, that the vulnerable adult is financially capable of paying for the protective
services received either through the vulnerable adult's own income or resources or otherPage No. 4programs for which the vulnerable adult may be eligible. The department or the department's
designee is not responsible for the cost of providing adult protective services unless the provision
of the services is specifically provided by law and funding exists to provide the services.50-25.2-09. Immunity from liability. The following persons are immune from any civilor criminal liability that otherwise might result from the person's actions taken pursuant to this
chapter:1.Any person, other than an alleged perpetrator, making a report or participating in an
investigation, evaluation, or assessment under this chapter if the person is acting in
good faith.2.Any person, employed by the department or the department's designee or a law
enforcement agency, conducting or supervising an investigation, evaluation, or
assessment or implementing or enforcing the provisions of this chapter if the person
is acting in good faith and exercising due care.50-25.2-10. Penalty and civil liability for false reports.1.Any person who willfully makes a false report, or provides false information which
causes the report to be made, is guilty of a class B misdemeanor unless the false
report is made to a law enforcement official, in which case the person who causes
the false report to be made is guilty of a class A misdemeanor.2.A person who willfully makes a false report, or provides false information that causes
a report to be made, is liable in a civil action for all damages suffered by the person
reported.50-25.2-11. Retaliation prohibited - Presumption - Penalty.1.An employer who imposes any form of discipline or retaliation against an employee
solely because the employee reported in good faith having knowledge of or
reasonable cause to suspect that a vulnerable adult is or has been abused or
neglected, or because the employee is a vulnerable adult with respect to whom a
report was made, is guilty of a class B misdemeanor.2.The employer of a person permitted to report pursuant to section 50-25.2-12 who
retaliates against the person because of a report is liable to that person in a civil
action for all damages.3.A rebuttable presumption that retaliation has occurred arises when an adverse
action is taken within ninety days of the report. An adverse action includes:a.The discharge from or termination of employment;b.The demotion, negative work performance evaluation, reduction of hours
worked, reduction of benefits or work privileges, or reduction in remuneration
for services of the employee; orc.The restriction or prohibition of access by the employee to any place of
employment or persons affiliated with the place of employment.50-25.2-12. Confidentiality of records - Authorized disclosures. All reports madeunder this chapter and all records and information obtained or generated as a result of the
reports are confidential, but must be made available to:1.A physician who examines a vulnerable adult whom the physician reasonably
suspects may have been subject to abuse or neglect.Page No. 52.Authorized staff of the department or the department's designee, law enforcement
agencies, and other agencies investigating, evaluating, or assessing the report or
providing adult protective services.3.A person who is the subject of a report if the identity of persons reporting under
section 50-25.2-03 is protected.4.Public officials, and their authorized agents, who require the information in
connection with the discharge of their official duties.5.A court when it determines that the information is necessary for determination of an
issue before the court.6.A person engaged in a bona fide research or auditing purpose if no information
identifying the subjects of a report is made available to the researcher or auditor.50-25.2-13. Information, education, and training programs.1.The department, in cooperation with county social service boards and law
enforcement agencies, shall conduct a public information and education program.
The elements and goals of the program must include:a.Informing the public regarding the laws governing the abuse or neglect of
vulnerable adults, the voluntary reporting authorized by this chapter, and the
need for and availability of adult protective services.b.Providing caregivers with information regarding services to alleviate the
emotional, psychological, physical, or financial stress associated with the
caregiver and vulnerable adult relationship.2.The department, in cooperation with county social service boards and law
enforcement agencies, shall institute a program of education and training for the
department, the department's designee, and law enforcement agency staff and other
persons who provide adult protective services.50-25.2-14.Implementation contingent upon appropriation.The department andcounty social service boards are not required to implement or enforce this chapter with respect to
any region, area, or county of this state if the legislative assembly does not provide an
appropriation to support the implementation and enforcement of this chapter within that region,
area, or county.Page No. 6Document Outlinechapter 50-25.2 vulnerable adult protection services