CHAPTER 179
HB 251 – FINAL VERSION
04Mar2009… 0224h
03Jun2009… 2038eba
2009 SESSION
01/04
HOUSE BILL 251
AN ACT relative to the state registry of founded reports of abuse, neglect, or exploitation of adults.
SPONSORS: Rep. Schulze, Hills 26; Rep. French, Merr 5; Rep. Skinder, Sull 1; Rep. Emerson, Ches 7; Sen. Gilmour, Dist 12
COMMITTEE: Health, Human Services and Elderly Affairs
This bill adds a definition of volunteer for the purposes of the state registry of founded reports of abuse, neglect, or exploitation of adults and makes certain other technical changes in the protective services to adults law.
This bill is a request of the department of health and human services.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
04Mar2009… 0224h
03Jun2009… 2038eba
09-0360
01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to the state registry of founded reports of abuse, neglect, or exploitation of adults.
Be it Enacted by the Senate and House of Representatives in General Court convened:
179:1 Protective Services to Adults; Registry. Amend RSA 161-F:49 to read as follows:
161-F:49 Registry.
I. There shall be established a state registry [of abuse, neglect, and exploitation reports] at the department for the purpose of maintaining a record of information on each [case] founded report of [alleged] abuse, neglect, or exploitation toward an individual by a paid or volunteer caregiver [or a caregiver hired or obtained by an agency, individual, family, or guardian], guardian, or agent acting under the authority of a power of attorney or any durable power of attorney. The registry shall be confidential and subject to rules on access established by the commissioner of the department under RSA 541-A. Unfounded [cases] reports shall not be maintained on the registry. The department shall maintain statistical, non-identifying information on founded [cases] reports as the department determines is necessary to track and address trends. [This section shall apply in each case of abuse, neglect, or exploitation by a paid caregiver toward an individual that is founded by an investigator.] For the purposes of this section:
(a) “Individual” means an individual, 18 years of age or older, found eligible for or receiving services pursuant to RSA 171-A, RSA 135-C:13, RSA 135-C:14, RSA 161-E, RSA 161-I, or programs licensed under RSA 151:2, I(b), (e), or (f) , or who is an incapacitated adult, as defined under RSA 161-F:43, VII.
(b) [The investigators shall be] “Investigator” means a person designated or employed by the department, in accordance with a protocol developed by the department to ensure objectivity, thoroughness, timeliness, and uniformity in methodology and format in the conduct of investigations and investigation reports. [The investigators] An investigator may include [investigators] an investigator employed by an area [agencies] agency or a community mental health [centers] center, if designated by the department.
(c) “Perpetrator” means a person who, following a protective investigation completed in accordance with RSA 161-F:42 through RSA 161-F:57, is found to have abused, neglected, or exploited an incapacitated adult.
(d) “Volunteer” means a person who provides voluntary services through any agency, program, or facility.
II. Within 5 business days of completion of an investigation [report by an investigator] of [alleged] abuse, neglect, or exploitation of an individual by a paid or volunteer caregiver [of an individual], guardian, or agent acting under the authority of a power of attorney or any durable power of attorney, the investigator shall provide a summary of the investigation [report] to the commissioner, or designee. Except as provided in paragraph IV, for a founded report, the commissioner, or designee, shall, within 5 business days, notify the perpetrator:
(a) Of the founded [case] report against him or her and that such information shall be entered on the registry and the consequences of such a finding.
(b) Of the right to contest the finding by appealing within 10 business days.
(c) Of the right to receive a full and fair administrative hearing, including the right to be represented by counsel at his or her own expense.
(d) Of the right to appeal an adverse administrative hearing decision to the probate court in accordance with paragraph V.
(e) That he or she may petition the probate court to expunge [his or her name] the report from the registry pursuant to RSA 161-F:49, [IX] X.
III. [Except as provided in paragraph IV, for a founded report] In response to a written request from an employer identified in paragraph VII, the commissioner, or designee, shall notify the employer:
(a) Relative to a prospective or current employee, consultant, contractor, or volunteer who is not on the registry of that fact within 5 business days of receipt of a request from the employer.
(b) Relative to a prospective or current employee, consultant, contractor, or volunteer who is on the registry of that fact within 5 business days of receipt of the request from the employer, and the [employer] department shall include in the notice the date the person was placed on the registry.
IV. A founded [case] report of abuse, neglect, or exploitation, and other information the commissioner deems appropriate, shall be entered on the registry upon:
(a) Expiration of the 10-business-day period for appeal when the perpetrator does not request an appeal.
(b) An administrative hearing officer sustaining the finding, unless an appeal is filed in accordance with paragraph V and an order of stay is issued by the probate court.
V. If the finding is sustained after an administrative hearing, a [person] perpetrator shall have the right to appeal as follows:
(a) A [person] perpetrator may file a petition in the Merrimack county probate court to review the final order by the commissioner, or designee, within 30 days of the date of the final order. Jurisdiction to hear such appeals is vested in the Merrimack county probate court.
(b) At the earliest practical time, the court shall review the record as developed before the commissioner, or designee, together with any written legal argument presented to the court. Based on that review, the court may affirm or reverse the decision of the commissioner, or designee, or order that oral argument be held. As justice may require, the court may remand the case to the commissioner, or designee, for further findings or rulings. The petition for appeal shall set forth all the grounds upon which the final order is sought to be overturned. Issues not raised by the appellant before the commissioner, or designee, shall not be raised before the probate court. The burden of proof shall be upon the appellant to show that the decision of the commissioner, or designee, was clearly unreasonable or unlawful, and all findings of the commissioner, or designee, upon all questions of fact properly before him or her shall be deemed to be prima facie lawful and reasonable. The order or decision appealed from shall not be vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence, that the order is unjust or unreasonable.
(c) No new or additional evidence shall be introduced in the probate court. The case shall be determined upon the record and evidence transferred, except that in any case, if it shall be necessary in order that no party shall be deprived of any constitutional right, or if the court determines that justice requires the reception of evidence of facts which have occurred since the hearing, or which by reason of accident, mistake, or misfortune could not have been offered before the commissioner, or designee, it shall remand the case to the commissioner, or designee, to receive and consider such additional evidence.
VI. If it is determined by the [investigator] commissioner, or designee, or after a hearing requested pursuant to subparagraph II(c) that a founded [case] report was caused by factors beyond the control of the perpetrator, then the finding shall not be entered onto the registry as founded.
VII. All employers of programs which are licensed, certified, or funded by the department to provide services to individuals shall be required before hiring a prospective employee, consultant, contractor, or volunteer who may have [client] contact with individuals to submit his or her name, for review against the registry [of founded reports of abuse, neglect, and exploitation] to determine whether the person is on the registry. The employer shall not hire the prospective employee, consultant, contractor, or volunteer if [the person] he or she is listed on the registry [with a founded case of abuse, neglect, or exploitation,] unless the employer requests and obtains a waiver from the department to hire such person. The employer, upon receiving [of] notice that a prospective employee, consultant, contractor, or volunteer is on the registry and in order to determine whether [he or she should] to request a waiver from the department, may request permission from the prospective employee, consultant, contractor, or volunteer for the authority to obtain further information about a founded [case] report of abuse, neglect, or exploitation. An employer may, with the consent of a current employee, consultant, contractor, or volunteer, submit his or her name for review against the registry. All employers, upon learning that the name of a current employee, consultant, contractor, or volunteer of their agency is on the registry shall take immediate action to ensure the safety of the individuals in their care. Such action may include, but is not limited to, termination, training, re-assignment, probationary employment, and/or the provision of direct supervision of the employee, consultant, contractor, or volunteer when working with individuals.
VIII. Any [individual] person hiring or employing a paid or volunteer caregiver, consultant, or contractor directly, or through an authorized representative or fiscal intermediary, to provide personal care services, as defined in RSA 161-E or RSA 161-I, may, with the consent of the current or prospective [employee] caregiver, consultant, contractor, or volunteer, submit [the prospective employee’s] his or her name for review against the registry and, if [the prospective employee] he or she is on the registry, and with the further permission of the current or prospective [employee] caregiver, consultant, contractor, or volunteer, obtain information about any founded [case] report. Any person considering designating another to serve as his or her agent under a power of attorney or any type of durable power of attorney may, with the consent of the proposed agent, submit the proposed agent’s name for review against the registry. The [individual] person shall not be required in such situations to obtain a waiver prior to hiring a person on the registry.
VIII-a. It shall be unlawful for any employer other than those specified under this [paragraph] section to require as a condition of employment that the employee submit his or her name for review against the registry of founded reports of abuse, neglect, or exploitation and any violation of this provision shall be punishable as a violation.
[VIII.] IX. Founded reports of abuse, neglect, or exploitation shall be retained on the registry for a period of 7 years subject to [an individual’s] the perpetrator’s right to petition for the earlier removal of [his or her name] the report from the registry as provided in this section.
[IX.] X. Any [individual] perpetrator whose name is listed in the founded reports maintained on the [central] state registry may petition the probate court to have [his or her name ] a founded report expunged from the registry as follows:
(a) A petition to expunge shall be filed in the probate court where the petitioner resides or where the abuse, neglect, or exploitation occurred.
(b) A petition to expunge shall be filed on forms provided by the probate courts. The petition shall include certified copies of the petitioner’s criminal record and may include any other information the petitioner deems relevant.
(c) When a petition to expunge is filed, the probate court shall require the department to report to the court concerning any additional founded abuse, neglect, or exploitation reports relative to the petitioner and shall require that the petitioner submit the petitioner’s name, birth date, and address to the state police to obtain information about criminal convictions. The court may require the department to provide any additional information that the court believes may aid it in making a determination on the petition.
(d) Upon the receipt of the department’s report, the court may act on the petition without further hearing or may schedule the matter for hearing at the request of either party. If the court determines that the petitioner does not pose a present threat to the safety of [adults] individuals and has exhibited best efforts to eliminate the likelihood of reoccurrence of the type of behavior that resulted in his or her entry onto the registry, the court shall grant the petition and order the department to remove the [individual’s name] founded report from the registry. Otherwise, the petition shall be [dismissed] denied.
[X.] XI. The department shall, in the notice it sends out pursuant to RSA 161-F:49, II(a), notify the perpetrator of his or her right to petition to have his or her [name] founded report expunged from the registry. No petition to expunge a founded report shall be brought within one year from the date that the [petitioner’s name] report was initially entered on the registry. If the petition to expunge is denied, no further petition shall be brought more frequently than every 3 years thereafter.
[XI.] XII. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:
(a) Setting forth the process and criteria for requesting and granting a waiver pursuant to RSA 161-F:49, VII.
(b) Safeguarding the confidentiality of and access to the registry except for the functions necessary to comply with this section. Such safeguards shall include limitations on which persons in an employment situation may request and access the [names of persons] founded reports on the registry.
179:2 Effective Date. This act shall take effect upon its passage.
Approved: July 13, 2009
Effective Date: July 13, 2009