2006 Louisiana Laws - RS 14:403.2 — Abuse and neglect of adults; reports; investigation; waiver of privileges; penalties; immunity

§403.2.  Abuse and neglect of adults; reports; investigation; waiver of privileges; penalties; immunity

A.(1)  The purpose of this Section is to protect adults who cannot physically or mentally protect themselves and who are harmed or threatened with harm through action or inaction by themselves or by the individuals responsible for their care or by other parties, by requiring mandatory reporting of suspected cases of abuse or neglect by any person having reasonable cause to believe that such a case exists.  It is intended that, as a result of such reports, protective services shall be provided by the adult protection agency.  Such services shall be available as needed without regard to income.

(2)  It is the further intent of the legislature to authorize only the least possible restriction on the exercise of personal and civil rights consistent with the person's need for services and to require that due process be followed in imposing such restrictions.

B.  For the purposes of this Section, the following definitions shall apply:

(1)  "Abandonment" is the desertion or willful forsaking of an adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.

(1.1)  "Abuse" is the infliction of physical or mental injury on an adult by other parties, including but not limited to such means as sexual abuse, abandonment, isolation, exploitation, or extortion of funds or other things of value, to such an extent that his health, self-determination, or emotional well-being is endangered.

(2)  "Adult" is any person sixty years of age or older, any disabled person eighteen years of age or older, or an emancipated minor.

(3)  "Adult protection agency" is the office of elderly affairs in the office of the governor, for any individual sixty years of age or older in need of adult protective services as provided in this Section.  Adult protection agency is the Department of Health and Hospitals for any individual between the ages of eighteen and fifty-nine years of age in need of adult protective services as provided in this Section.  The secretary of the Department of Health and Hospitals may assign the duties and powers provided in this Section to any office of the department for provision of adult protective services, as provided in Subsection E(1).

(4)  "Capacity to consent" means the ability to understand and appreciate the nature and consequences of making decisions concerning one's person, including but not limited to provisions for health or mental health care, food, shelter, clothing, safety, or financial affairs.  This determination may be based on assessment or investigative findings, observation, or medical or mental health evaluations.

(5)  "Caregiver" is any person or persons, either temporarily or permanently, responsible for the care of an aged person or a physically or mentally disabled adult.  Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare personnel, adult foster home sponsors, personnel of public and private institutions and facilities, adult congregate living facilities, and nursing homes which have voluntarily assumed the care of an aged person, or disabled adult, have assumed voluntary residence with an aged person or disabled adult, or have assumed voluntary use or tutelage of an aged or disabled person's assets, funds, or property, and specifically shall include city, parish, or state law enforcement agencies.

(5.1)  "Disabled person" is a person with a mental, physical, or developmental disability that substantially impairs the person's ability to provide adequately for his own care or protection.

(6)  "Exploitation" is the illegal or improper use or management of an aged person's or disabled adult's funds, assets, or property, or the use of an aged person's or disabled adult's power of attorney or guardianship for one's own profit or advantage.

(7)  "Extortion" is the acquisition of a thing of value from an unwilling or reluctant adult by physical force, intimidation, or abuse of legal or official authority.

(7.1)  "Isolation" includes:

(a)  Intentional acts committed for the purpose of preventing, and which do serve to prevent, an adult from having contact with family, friends, or concerned persons.  This shall not be construed to affect a legal restraining order.

(b)  Intentional acts committed to prevent an adult from receiving his mail or telephone calls.

(c)  Intentional acts of physical or chemical restraint of an adult committed for the purpose of preventing contact with visitors, family, friends, or other concerned persons.

(d)  Intentional acts which restrict, place, or confine an adult in a restricted area for the purposes of social deprivation or preventing contact with family, friends, visitors, or other concerned persons.  However, medical isolation prescribed by a licensed physician caring for the adult shall not be included in this definition.

(8)  "Neglect" is the failure, by a caregiver responsible for an adult's care or by other parties, to provide the proper or necessary support or medical, surgical, or any other care necessary for his well-being.  No adult who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be neglected or abused.

(9)  "Protective services" include but are not limited to:

(a)  Conducting investigations and assessments of complaints of possible abuse, neglect, or exploitation to determine if the situation and condition of the adult warrant further action.

(b)  Preparing a social services plan utilizing community resources aimed at remedying abuse, neglect, and exploitation.

(c)  Case management to assure stabilization of the situation.

(d)  Referral for legal assistance to initiate any necessary extrajudicial remedial action.

(10)  "Self-neglect" is the failure, either by the adult's action or inaction, to provide the proper or necessary support or medical, surgical, or any other care necessary for his own well-being.  No adult who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be self-neglected.

C.  Any person, including but not limited to a health, mental health, and social service practitioner, having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with Subsection D of this Section.

D.(1)  Reports reflecting the reporter's belief that an adult has been abused or neglected shall be made to any adult protection agency or to any local or state law enforcement agency.  These reports need not name the persons suspected of the alleged abuse or neglect.

(2)  All reports shall contain the name and address of the adult, the name and address of the person responsible for the care of the adult, if available, and any other pertinent information.

(3)  All reports received by a local or state law enforcement agency shall be referred to the appropriate adult protection agency.

(4)  When the appropriate adult protection agency receives a report of sexual or physical abuse, whether directly or by referral, the agency shall notify the chief law enforcement agency of the parish in which the incident is alleged to have occurred of such report.  Such notification shall be made prior to the end of the business day subsequent to the day on which the adult protection agency received the report.  For the purposes of this Paragraph, the chief law enforcement agency of Orleans Parish shall be the New Orleans Police Department.

(5)  Upon receipt of a report from an adult protection agency, the chief law enforcement agency shall initiate an incident report and shall notify the referring adult protection agency of the disposition of the report.

E.(1)  The adult protection agency shall make prompt investigation and assessment.  When the report concerns care in a facility or program under the supervision of the Department of Health and Hospitals, the secretary of the department may assign the duties and powers enumerated in Paragraph (2) of this Subsection to any office or entity within the department to carry out the purposes of this Section.

(2)  The investigation and assessment shall include the nature, extent, and cause of the abuse and neglect, the identity of the person or persons responsible for the abuse and neglect, if known, and an interview with the adult and a visit to the adult's home, if possible.  Consultation with others having knowledge of the facts of the particular case shall also be included in the investigation.

(3)  In the event that admission to the adult's home or access to the adult for purposes of conducting the investigation, including a face-to-face private interview with the adult and with other members of the household and inspection of the home is refused, the adult protection agency may apply to a court of competent civil jurisdiction for an order to be granted access to the adult and to the location where the alleged abuse or neglect occurred to make such an investigation.

(4)  To secure further information and coordinate community service efforts, the adult protection agency shall contact other appropriate local or state agencies.

(5)  The adult protection agencies shall convene a regional level coordinating council composed of representatives of both public and private agencies providing services, with the objectives of identifying resources, increasing needed supportive services, avoiding duplication of effort, and assuring maximum community coordination of effort.

(6)  If it appears after investigation that an adult has been abused and neglected by other parties and that the problem cannot be remedied by extrajudicial means, the adult protection agency may refer the matter to the appropriate district attorney's office or may initiate judicial proceedings as provided in Subsection F of this Section.  Evidence that abuse or neglect has occurred must be presented together with an account of the protective services given or available to the adult and a recommendation as to what services, if ordered, would eliminate the abuse or neglect.

(7)  Protective services may not be provided in cases of self-neglect to any adult having the capacity to consent, who does not consent to such service or who, having consented, withdraws such consent.  Nothing herein shall prohibit the adult protection agency, the district attorney, the coroner, or the judge from petitioning for interdiction pursuant to Civil Code Articles 389 through 399 or petitioning for an order for protective custody or for judicial commitment pursuant to R.S. 28:50 et seq. seeking an order for emergency protective services pursuant to Subsection N of this Section, or from seeking an order for involuntary protective services pursuant to Subparagraph (F)(1)(e) of this Section.

(8)(a)  The adult protection agency shall have access to any records or documents, including client-identifying information and medical, psychological, criminal or financial records necessary to the performance of the agency's duties under this Section.  The duties include the provision of protective services to an adult, or the investigation of abuse, neglect, exploitation or extortion of an adult.  A person or agency that has a record or document that the adult protection agency needs to perform its duties under this Section shall, without unnecessary delay, make the record or document available to the agency.

(b)  The adult protection agency is exempt from the payment of a fee otherwise required or authorized by law to obtain a record if the request for a record is made in the course of an investigation or in the provision of protective services by the agency.

(c)  If the adult protection agency is unable to obtain access to a record or document that is necessary to properly conduct an investigation or to provide protective services, the agency may petition a court of competent jurisdiction for access to the record or document.  The person or agency in possession of this necessary record or document and the patient, in the case of a medical record, is entitled to notice and a hearing on the petition.

(d)  Upon a showing by the adult protection agency that the record or document is necessary, the court shall order the person or agency who denied access to a record or document to allow the adult protection agency to have access under the terms and conditions prescribed by the court.

(e)  Access to a confidential record under this Section does not constitute a waiver of confidentiality.  No cause of action shall exist against any person or agency who in good faith provides a record or document to the adult protection agency under the provisions of this Section.

(9)(a)  Information contained in the case records of the adult protection agency shall be confidential and shall not be released without a handwritten authorization from the adult or his legal representative, except that the information may be released to law enforcement agencies pursuing enforcement of criminal statutes related to the abuse of the adult or the filing of false reports of abuse or neglect, or to social service agencies, licensed health care providers, and appropriate local or state agencies where indicated for the purpose of coordinating the provision of services or treatment necessary to reduce the risk to the adult from abuse, neglect, exploitation, or extortion and to state regulatory agencies for the purpose of enforcing federal or state laws and regulations relating to abuse, neglect, exploitation, or extortion by persons compensated through state or federal funds.

(b)  The identity of any person who in good faith makes a report of abuse, neglect, exploitation, or extortion shall be confidential and shall not be released without the handwritten authorization of the person making the report, except that the information may be released to law enforcement agencies pursuing enforcement of criminal statutes related to the abuse of the adult or to the filing of false reports of abuse or neglect.

(c)  Prior to releasing any information, except information released to law enforcement agencies as provided herein, the adult protection agency shall edit the released information to protect the confidentiality of the reporter's identity and to protect any other individual whose safety or welfare may be endangered by disclosure.

F.(1)  The district attorney or adult protective services agency may petition a court of competent civil jurisdiction for a hearing with respect to the alleged abuse or neglect.  The petitioner shall notify the adult of the hearing and the proposed action.  The adult shall be advised  of his right to be represented by an attorney.  The district attorney or adult protective services agency may apply for an order to:

(a)  Provide mandatory counseling for the parties involved to prevent further abuse or neglect of the adult.

(b)  Enjoin the parties contributing to the abuse or neglect of the adult from continuing such acts.

(c)  Have the adult receive a medical examination or psychiatric/psychological evaluation which will help to determine the least restrictive setting the adult may need.

(d)  Enjoin any party interfering with the provision of protective services to an adult from continuing such interference.

(e)  Provide protective services, if the adult lacks the capacity to consent to services, and the adult is suffering harm or deterioration or is likely to suffer harm or deterioration from abuse, neglect, or self-neglect, if protective services are not provided, and no other person authorized by law or by court order to give consent for the adult is available or willing to arrange for protective services.  Such an order shall specify the services needed to protect the adult, which may include medical treatment, social services, placement in a safer living situation, the services of law enforcement or emergency medical services to transport the adult to a treatment facility or safe living location and other services needed to protect the adult.  Such an order shall be effective for a period of one hundred eighty days, but an order may be renewed one time for another one hundred eighty days and thereafter annually upon a showing to the court that continuation of the order is necessary to prevent further harm to the adult.  However, admission to a mental health treatment facility shall be made only in accordance with the provisions of R.S. 28:1 et seq.

(2)  The district attorney may likewise institute any criminal proceedings he deems appropriate in accordance with existing laws.

(3)  Pursuant to Code of Criminal Procedure Art. 66, the district attorney or the attorney general may cause to be issued a subpoena or subpoena duces tecum for the purpose of requiring a person having knowledge, written material, or other evidence pertinent to alleged abuse, neglect, or exploitation of the adult to produce such evidence to the district attorney, attorney general or the adult protection agency.

G.  Upon application under the provisions of Subsection F of this Section, the court shall fix a date for a hearing to be held not more than twenty days, excluding Saturdays, Sundays, and legal holidays, from receipt of the petition.  If the alleged abused or neglected adult has no attorney, the court shall appoint an attorney to represent him.  The adult's attorney shall be granted access to all records of the adult.

H.(1)  The court shall cause the alleged abused or neglected adult and his attorney to be served with notice of the appointment and of the time, date, and place of the hearing no later than five days prior to the hearing.  The notice shall inform such respondent that he has a right to be present at the hearing, that he has a right to choose his own privately retained and paid counsel or have a court-appointed attorney if he cannot afford one, that he has a right to subpoena witnesses to testify on his behalf, and that he has a right to cross-examine any witness testifying against him.  The alleged abused or neglected adult shall have the right to attend the hearing; however, this may be waived by his attorney for cause with approval of the court.

(2)  In order to protect the confidentiality and dignity of the alleged abused or neglected adult, any hearing conducted by the court may be closed and the record of the hearing may be sealed.

I.(1)  The adult protection agency may adopt such rules and regulations as may be necessary in carrying out the provisions of this Section.  Specifically, such rules shall provide for cooperation with local agencies, including but not limited to hospitals, clinics, and nursing homes, and cooperation with other states.  The adult protection agencies may enter into cooperative agreements with other state agencies or contractual agreements with private agencies to carry out the purposes of this Section.  The immunity granted to the staff of the adult protection agencies defined in Paragraph (3) of this Subsection shall extend to the staff of those agencies carrying out the provisions of this Section through cooperative or contractual agreement.

(2)  The adult protection agencies shall implement adult protective services for aged and disabled adults in accordance with an agency plan and shall submit an annual funding request in accordance with its plan.  No funds shall be expended to implement the plan until the budget is approved by the commissioner of administration and by the legislature in the annual state appropriations act.

(3)  When the adult protection agency's staff is not sufficient to respond promptly to all reported cases, the adult protection agency shall set priorities for case response and allocate staff resources to cases in accordance with the rules and regulations promulgated in accordance with Paragraph (1) of this Subsection.  Until the funding becomes available for a protective services program for disabled adults within the Department of Health and Hospitals and in view of the office of elderly affairs' earlier implementation date for adult protective service, this office shall have the authority to intervene, as provided in this Section, on an emergency basis in reported cases of imminent life-threatening circumstances involving disabled adults age eighteen to fifty-nine.  Absent evidence of willful or intentional misconduct or gross negligence in carrying out the investigative functions of the adult protective services program, caseworkers, supervisors, program managers, and agency heads shall be immune from civil or criminal liability in any legal action arising from any decision by the adult protection agency relative to the setting of priorities for cases and targeting of staff resources.

J.(1)  Any person who knowingly and willfully fails to report as provided by Subsection C, shall be fined not more than five hundred dollars or imprisoned not more than six months, or both.

(2)  Any person who knowingly files a false report of abuse or neglect shall be fined not more than one thousand dollars, imprisoned with or without hard labor for not more than one year, or both.

K.  No cause of action shall exist against any person who in good faith makes a report, cooperates in an investigation by  an adult protective agency, or participates in judicial proceedings authorized under the provisions of this Section, or any adult protective services caseworker who in good faith conducts an investigation or makes an investigative judgment or disposition, and such person shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.  This immunity shall not be extended to:

(1)  Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the adult.

(2)  Any person who makes a report known to be false or with reckless disregard for the truth of the report.

(3)  Any person charged with direct or constructive contempt of court, any act of perjury as defined in Subpart C of Part VII of Chapter 1 of this Title, or any offense affecting judicial functions and public records as defined in Subpart D of Part VII of Chapter 1 of this Title.

L.  The adult protection agency shall also be responsible for ongoing inservice training for its staff which assures adequate performance.

M.  In any proceeding concerning the abuse, neglect, or self-neglect of an adult, evidence may not be excluded on any ground of privilege, except in the case of communications between an attorney and his client or between a priest, rabbi, duly ordained minister, or Christian Science practitioner and his communicant.

N.(1)(a)  If the adult protection agency has reasonable cause to believe that an adult is at immediate and present risk of substantial harm or deterioration from abuse, neglect, or self-neglect, and the adult lacks the capacity to consent, or with the consent of an adult who has capacity, the agency or any entity named in Paragraph (E)(7) of this Section may petition a court of competent civil jurisdiction for an ex parte order to provide emergency protective services.  The petition shall contain an affidavit setting forth the facts upon which the agency relied in making the determination.

(b)  When the circumstances placing the adult at risk are such that there is insufficient time to file a petition for emergency protective services, the facts supporting an ex parte order to provide emergency protective services may be relayed to the court orally or telephonically and the court may issue its order orally.  In such cases, a written verified petition for ex parte order shall be filed with the court by the close of the following business day and a written order shall be issued.

(2)  The ex parte order shall specify the services needed to protect the adult, which may include medical treatment, social services, placement in a safer living situation, the services of law enforcement or emergency medical services to transport the adult to a treatment facility or safe living location, and other services needed to protect the adult and may contain any remedy outlined in Subsection F of this Section or any remedy deemed by the court as needed to protect the adult. However, admission to a mental health treatment facility shall be made only in accordance with the provisions of R.S. 28:1 et seq.

(3)  The ex parte order shall be effective for fifteen days but may be extended one time for another fifteen days upon a showing to the court that continuation of the order is necessary to prevent further harm to the adult.

(4)(a)  There shall be a hearing held by the court before the expiration of the ex parte order or the extension thereof but no earlier than fifteen days from the effective date of the ex parte order.

(b)  The adult has the right to be represented by an attorney.  If the alleged abused or neglected adult has no attorney, the court shall appoint an attorney to represent him.

(c)  At the hearing, the adult protection agency has the burden to prove that the adult lacks the capacity to consent, and that the adult is at immediate and present risk of substantial harm or deterioration from abuse, neglect, or self-neglect.

(d)  The adult shall have the right to present evidence, call witnesses, be heard on his own behalf, and cross-examine witnesses called by the adult protection agency.

(e)  Reasonable notice of the hearing and rights set forth in this Section shall be given to the adult.

(f)  After the hearing, if the court grants an order in favor of the adult protection agency, the court's order shall specify the services needed to protect the adult, which may include medical treatment, social services, temporary placement in a safer living situation, and other services needed to protect the adult and may contain any remedy outlined in Subsection F of this Section or any remedy deemed by the court as needed to protect the adult.  However, admission to a mental health treatment facility shall be made only in accordance with the provisions of R.S. 28:1 et seq.

(g)  Such an order shall be effective for a period of one hundred eighty days, but the order may be renewed one time for another one hundred eighty days and thereafter annually upon a showing to the court that continuation of the order is necessary to prevent further harm to the adult.

Added by Acts 1982, No. 519, §1.  Acts 1983, No. 98, §1; Acts 1985, No. 181, §1; Acts 1989, No. 703, §§1, 2, eff. July 8, 1989; Acts 1990, No. 534, §1; Acts 1991, No. 408, §1; Acts 1992, No. 975, §1, eff. July 9, 1992; Acts 1995, No. 841, §1; Acts 1997, No. 1183, §1; Acts 1999, No. 338, §1; Acts 2001, No. 1032, §5; Acts 2002, 1st Ex. Sess., No. 80, §1; Acts 2003, No. 244, §1; Acts 2005, No. 306, §1, eff. June 29, 2005.