Report Title:
Adult Protective Services
Description:
Expands the adult protective services law by extending protections to vulnerable adults. (CD1)
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THE SENATE |
S.B. NO. |
2150 |
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TWENTY-FOURTH LEGISLATURE, 2008 |
S.D. 2 |
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STATE OF HAWAII |
H.D. 2 |
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C.D. 1 |
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A BILL FOR AN ACT
RELATING TO ADULT PROTECTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 346, part X, Hawaii Revised Statutes, is amended by amending the title to read as follows:
"[[]PART
X.[] DEPENDENT] ADULT PROTECTIVE SERVICES"
SECTION 2. Section 346-45, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The court shall maintain records of
all adult protective proceedings under this chapter. All court documents and records
pertaining to the action or proceeding shall be subject to inspection only by
the [dependent] vulnerable adult, and [his or her] the
vulnerable adult's guardian, conservator, their respective attorneys, the
guardian ad litem of the [dependent] vulnerable adult, and the
other parties and their respective attorneys or guardians ad litem."
SECTION 3. Section 346-221, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-221[]] Purpose;
construction. The legislature recognizes that citizens of the State who
are [elder and mentally or physically impaired] vulnerable to abuse
constitute a significant and identifiable segment of the population and are
particularly subject to risks of abuse, neglect, and exploitation.
The legislature [also] recognizes that
it is a person's [dependency status,] vulnerability, not necessarily
age, which is often encountered in cases of abuse, neglect, and exploitation.
While advanced age alone is not sufficient reason to intervene in a person's
life, the legislature finds that many elders have become subjects of abuse [and],
neglect[.], and exploitation. Substantial public interest exists
to ensure that this segment of the population receives protection.
The legislature declares that the State shall
develop and promote community services for the economic, social, and personal
well-being and protection of its [elder] citizens who [are mentally
or physically impaired.] may be vulnerable to abuse.
In taking this action, the legislature intends
to protect vulnerable adults and place the fewest possible restrictions
on personal liberty and to permit the exercise of constitutional rights by
adults consistent with protection from abuse[, neglect, and exploitation]."
SECTION 4. Section 346-222, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-222[]]
Definitions. For the purposes of this part:
"Abuse" means [actual or imminent
physical injury, psychological abuse or neglect, sexual abuse, financial
exploitation, negligent treatment, or maltreatment] any of the
following, separately or in combination:
(1) Physical abuse;
(2) Psychological abuse;
(3) Sexual abuse;
(4) Financial exploitation;
(5) Caregiver neglect; or
(6) Self-neglect;
each as further defined in this chapter. Abuse does not include, and a determination of abuse shall not be based solely on, physical, psychological, or financial conditions that result when a vulnerable adult seeks, or when a caregiver provides or permits to be provided, treatment with the express consent of the vulnerable adult or in accordance with the vulnerable adult's religious or spiritual practices.
[Abuse occurs where:
(1) Any dependent adult exhibits evidence
of:
(A) Substantial or multiple skin
bruising or any other internal bleeding;
(B) Any injury to skin causing
substantial bleeding;
(C) Malnutrition;
(D) A burn or burns;
(E) Poisoning;
(F) The fracture of any bone;
(G) A subdural hematoma;
(H) Soft tissue swelling;
(I) Extreme physical pain; or
(J) Extreme mental distress which
includes a consistent pattern of actions or verbalizations including threats,
insults, or harassment, that humiliates, provokes, intimidates, confuses, and
frightens the dependent adult;
and the injury is not justifiably
explained, or where the history given is at variance with the degree or type of
injury, or circumstances indicate that the injury is not the product of an
accidental occurrence;
(2) Any dependent adult has been the victim
of nonconsensual sexual contact or conduct, including but not limited to:
(A) Sexual assault, molestation,
sexual fondling, incest, prostitution;
(B) Obscene or pornographic
photographing, filming, or depiction; or
(C) Other similar forms of sexual
exploitation;
(3) Any dependent adult is not provided in
a timely manner with adequate food, clothing, shelter, psychological care,
physical care, medical care, or supervision;
(4) Any dependent adult is provided with
dangerous, harmful, or detrimental drugs as defined by section 712-1240;
however, this paragraph shall not apply when such drugs are provided to the
dependent adult pursuant to the direction or prescription of a practitioner, as
defined in section 712-1240;
(5) There has been a failure to exercise
that degree of care toward a dependent adult which a reasonable person with the
responsibility of a caregiver would exercise, including, but not limited to,
failure to:
(A) Assist in personal hygiene;
(B) Provide necessary food, shelter,
and clothing;
(C) Provide necessary health care,
access to health care, or prescribed medication;
(D) Protect a dependent adult from
health and safety hazards; or
(E) Protect against acts of abuse by
third parties;
(6) Any dependent adult appears to lack
sufficient understanding or capacity to make or communicate responsible
decisions concerning the dependent adult's person, and appears to be exposed to
a situation or condition which poses an imminent risk of death or risk of
serious physical harm; or
(7) There is financial and economic
exploitation. For the purpose of this part, "financial and economic
exploitation" means the wrongful or negligent taking, withholding,
misappropriation, or use of a dependent adult's money, real property, or
personal property. "Financial and economic exploitation" can include
but is not limited to:
(A) Breaches of fiduciary
relationships such as the misuse of a power of attorney or the abuse of
guardianship privileges, resulting in the unauthorized appropriation, sale, or
transfer of property;
(B) The unauthorized taking of
personal assets;
(C) The misappropriation, misuse, or
transfer of moneys belonging to the dependent adult from a personal or joint
account; or
(D) The intentional or negligent
failure to effectively use a dependent adult's income and assets for the
necessities required for the person's support and maintenance.
The exploitations may
involve coercion, manipulation, threats, intimidation, misrepresentation, or
exertion of undue influence.]
"Capacity" means the ability to
understand and appreciate the nature and consequences of making decisions
concerning one's person or to communicate [such] these decisions.
"Caregiver" means any person who has knowingly and willingly assumed, on a part-time or full-time basis, the care, supervision, or physical control of, or who has a legal or contractual duty to care for the health, safety, and welfare of a vulnerable adult.
"Caregiver neglect" means the failure of a caregiver to exercise that degree of care for a vulnerable adult that a reasonable person with the responsibility of a caregiver would exercise within the scope of the caregiver's assumed, legal or contractual duties, including but not limited to the failure to:
(1) Assist with personal hygiene;
(2) Protect the vulnerable adult from abandonment;
(3) Provide, in a timely manner, necessary food, shelter, or clothing;
(4) Provide, in a timely manner, necessary health care, access to health care, prescribed medication, psychological care, physical care, or supervision;
(5) Protect the vulnerable adult from dangerous, harmful, or detrimental drugs, as defined in section 712-1240; provided that this paragraph shall not apply to drugs that are provided to the vulnerable adult pursuant to the direction or prescription of a practitioner, as defined in section 712‑1240;
(6) Protect the vulnerable adult from health and safety hazards; or
(7) Protect the vulnerable adult from abuse by third parties.
"Court" means the family court [having
jurisdiction over a matter under this part].
"Department" means the department of human services and its authorized representatives.
["Dependent adult" means any adult
who, because of mental or physical impairment is dependent upon another person,
a care organization, or a care facility for personal health, safety, or
welfare.]
"Director" means the director of human services.
"Emergency medical treatment" means [those
services] any service necessary to maintain a person's physical
health and without which there is a reasonable belief that the person will
suffer irreparable harm or death.
"Financial exploitation" means the wrongful taking, withholding, appropriation, or use of a vulnerable adult's money, real property, or personal property, including but not limited to:
(1) The breach of a fiduciary duty, such as the misuse of a power of attorney or the misuse of guardianship privileges, resulting in the unauthorized appropriation, sale, or transfer of property;
(2) The unauthorized taking of personal assets;
(3) The misappropriation or misuse of moneys belonging to the vulnerable adult from a personal or joint account; or
(4) The failure to effectively use a vulnerable adult's income and assets for the necessities required for the vulnerable adult's support and maintenance, by a person with a duty to expend income and assets on behalf of the vulnerable adult for such purposes.
Financial exploitation may be accomplished through coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.
["Imminent abuse" means that there
exists reasonable cause to believe that abuse will occur or recur within the
next ninety days.]
"Party" means those persons, care
organizations, or care facilities entitled to notice of proceedings under sections
346‑237 and 346‑238, including any state department or agency that
is providing services and treatment to a [dependent] vulnerable
adult in accordance with a protective services plan.
"Physical abuse" means:
(1) The nonaccidental infliction of physical or bodily injury, pain, or impairment, including but not limited to hitting, slapping, causing burns or bruises, poisoning, or improper physical restraint; or
(2) Causing physical injuries that are not justifiably explained or where the history given for an injury is at variance with the degree or type of injury.
"Protective services plan" means a
specific written plan, prepared by the department, [setting] that
sets forth the specific services and treatment to be provided to a [dependent]
vulnerable adult.
"Psychological abuse" means the infliction of mental or emotional distress by use of threats, insults, harassment, humiliation, provocation, intimidation, or other means that profoundly confuse or frighten a vulnerable adult.
"Self-neglect" means:
(1) A vulnerable adult's inability or failure, due to physical or mental impairment, or both, to perform tasks essential to caring for oneself, including but not limited to:
(A) Obtaining essential food, clothing, shelter, and medical care;
(B) Obtaining goods and services reasonably necessary to maintain minimum standards of physical health, mental health, emotional well-being, and general safety; or
(C) Management of one's financial assets and obligations to accomplish the activities in subparagraphs (A) and (B);
and
(2) The vulnerable adult appears to lack sufficient understanding or capacity to make or communicate responsible decisions and appears to be exposed to a situation or condition that poses an immediate risk of death or serious physical harm.
"Sexual abuse" means nonconsensual sexual contact or conduct caused by another person, including but not limited to:
(1) Sexual assault, molestation, sexual fondling, incest, or prostitution; or
(2) Pornographic photographing, filming, or depiction.
"Vulnerable adult" means a person eighteen years of age or older who, because of mental, developmental, or physical impairment, is unable to:
(1) Communicate or make responsible decisions to manage the person's own care or resources;
(2) Carry out or arrange for essential activities of daily living; or
(3) Protect oneself from abuse, as defined in this part."
SECTION 5. Section 346-223, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-223[]] Jurisdiction;
venue. The family court shall have jurisdiction [in] over
protective proceedings under this part [concerning any dependent] that
concern a vulnerable adult who was or is found within the judicial
circuit at the time [such] the facts and circumstances occurred,
were discovered, or were reported to the department, which constitute the basis
for a finding that the [person has been abused and] vulnerable adult
has incurred abuse or is [threatened with imminent abuse;] in
danger of abuse if immediate action is not taken; provided that the
protective proceedings under this part [are] shall not be
considered exclusive and shall not preclude [the use of] any other
criminal, civil, or administrative remedy. The protective proceedings under
this part shall be held in the judicial circuit in which the [dependent]
vulnerable adult resides at the time of the filing of the petition or in
which the [dependent] vulnerable adult has assets."
SECTION 6. Section 346-224, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-224[]] Reports.
(a) The following persons who, in the performance of their professional or
official duties, know or have reason to believe that a [dependent] vulnerable
adult has [been abused and is threatened with imminent abuse] incurred
abuse or is in danger of abuse if immediate action is not taken shall
promptly report the matter orally to the department [of human services]:
(1) Any licensed or registered professional of the
healing arts and any health-related occupation who examines, treats, or
provides other professional or specialized services to [dependent adults,]
a vulnerable adult, including [but not limited to,] physicians,
physicians in training, psychologists, dentists, nurses, osteopathic physicians
and surgeons, optometrists, chiropractors, podiatrists, pharmacists, and other
health-related professionals;
(2) Employees or officers of any public or private agency or institution providing social, medical, hospital, or mental health services, including financial assistance;
(3) Employees or officers of any law enforcement
agency, including[, but not limited to,] the courts, police
departments, correctional institutions, and parole or probation offices;
(4) Employees or officers of any adult residential
care home, adult day care center, or similar institution; [and]
(5) Medical examiners or coroners[.]; and
(6) Social workers licensed pursuant to chapter 467E and non-licensed persons employed in a social worker position pursuant to section 467E-6(2).
(b) The initial oral report required by
subsection (a) shall be followed as soon as possible by a written report to the
department; provided that [where] if a police department is the
initiating agency, a written report shall not be required unless the police
department [has declined] declines to take further action and the
department informs the police department that [it] the department
intends to [pursue the matter of the orally reported incident] investigate
the oral report of abuse. [All written reports] A written report
shall contain [the]:
(1) The name and address of the [dependent]
vulnerable adult [and], if known;
(2) The name and address of the [person
who or care organization or care facility which] party who is
alleged to have committed or been responsible for the [dependent adult]
abuse, if known; [the]
(3) The nature and extent of the [dependent]
vulnerable adult's injury or harm; and [any]
(4) Any other information the reporter
believes [might] may be helpful in establishing the cause of the
[dependent adult] abuse.
(c) This section shall not prohibit any [of
the persons enumerated in subsection (a)] person from reporting [incidents
which those persons have] an incident that the person has reason to
believe [involve] involves abuse [which] that came
to [their] the person's attention in [any] a
private or nonprofessional capacity.
(d) Any [other] person not enumerated
in subsection (a) who has reason to believe that a [dependent] vulnerable
adult [has been abused] has incurred abuse or is [threatened
with imminent abuse] in danger of abuse if immediate action is not taken
may report the matter orally to the department.
(e) Any person who knowingly fails to report as required by this section or who wilfully prevents another person from reporting pursuant to this section shall be guilty of a petty misdemeanor.
(f) The department shall maintain a central registry of reported cases.
(g) Nothing in this section shall require a member of the clergy to report communications that are protected under rule 506 of chapter 626."
SECTION 7. Section 346-225, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-225[]] Confidentiality
of reports. [All reports] A report made pursuant to this
part, including the identity of the reporting person[, as well as] and
all records of [such reports, are] the report, shall be confidential
and any person who makes an unauthorized disclosure of a report or records of a
report [under this part] shall be guilty of a misdemeanor. The director
[of human services] may adopt, amend, or repeal rules, pursuant to
chapter 91, to provide for the confidentiality of reports and records, and for
the authorized disclosure of reports and records."
SECTION 8. Section 346-226, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-226[]] Access
to records. Records of a [dependent] vulnerable adult
shall be obtained by the department or the [dependent] vulnerable
adult's court-appointed guardian ad litem with the written consent of the [dependent]
vulnerable adult or [that person's] the vulnerable adult's
representative, or by court order. Any person who reports to the department
under section 346-224, upon demand of the department, shall provide all
information related to the alleged incident of [dependent adult] abuse [or
neglect], including[, but not limited to,] financial records and
medical reports, which were not included in the written report submitted
pursuant to section 346‑224(b)."
SECTION 9. Section 346-227, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-227[]]
Investigation. Upon receiving a report that abuse of a [dependent] vulnerable
adult has occurred [and is imminent,] or is in danger of
occurring if immediate action is not taken, the department shall cause an
investigation to be commenced in accordance with this part as the department
deems appropriate."
SECTION 10. Section 346-228, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-228[]] Action
upon investigation. Upon investigation the department shall take action [toward
preventing further] to prevent abuse and shall have the
authority to do any or all of the following:
(1) Resolve the matter in an informal fashion as is appropriate under the circumstances;
(2) Exercise its right of entry under section 346-229;
(3) Seek an order for immediate protection;
(4) Seek a temporary restraining order;
(5) File a petition with the court under this part; and
(6) Seek any protective or remedial actions authorized by law."
SECTION 11. Section 346-229, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-229[]] Right of
entry. (a) An employee of the department engaged in an investigation
under this part shall be authorized to visit and communicate with the [dependent]
vulnerable adult who is the subject of the report. Any person
intentionally or knowingly obstructing or interfering with the department's access
to or communication with the [dependent] vulnerable adult shall
be guilty of a misdemeanor.
(b) Any employee of the department engaged in
an investigation under this part, having probable cause to believe that a [dependent]
vulnerable adult will be physically injured through abuse before a court
order for entry can be obtained, without a warrant, may enter upon the premises
where the [dependent] vulnerable adult may be found for the
purpose of ascertaining that person's welfare. Where a warrantless entry is
authorized under this section, the employee of the department may request the
assistance of a police officer to gain entrance."
SECTION 12. Section 346-230, Hawaii Revised Statutes, is amended to read as follows:
"§346-230 Termination of services. (a)
The department shall act only with the consent of the [victim,] vulnerable
adult, unless the department obtains court authorization to provide
necessary services, as provided in section 346-231. Investigation and services
provided under this part shall be immediately terminated if:
(1) The [dependent] vulnerable adult
has the capacity to consent and either does not consent or withdraws consent to
the receipt of protective services; [or]
(2) The department determines that protection is no longer needed under this part; or
(3) The court so orders.
(b) Upon the department's determination that
protective services are no longer needed, the [dependent] vulnerable
adult shall be referred to the agency responsible for follow-up services. For
the mentally ill, mentally retarded, or developmentally disabled adult,
the state agency designated to provide services shall be the department of
health."
SECTION 13. Section 346-231, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) If the department believes that a
person is a [dependent] vulnerable adult and it appears probable
that the [dependent] vulnerable adult has [been abused and is threatened
with imminent abuse unless] incurred abuse or is in danger of abuse if
immediate action is not taken[;] and the [dependent] vulnerable
adult consents, or if the [dependent] vulnerable adult does not
consent and there is probable cause to believe that the [dependent] vulnerable
adult lacks the capacity to make decisions concerning the [dependent] vulnerable
adult's person, the department shall seek an order for immediate protection in
accordance with this section."
2. By amending subsections (c), (d), and (e) to read:
"(c) Upon finding that the person is a [dependent]
vulnerable adult and that there is probable cause to believe that the [dependent]
vulnerable adult has [been abused and is threatened with imminent
abuse unless] incurred abuse or is in danger of abuse if
immediate action is not taken[;] and the [dependent] vulnerable
adult consents, or if the [dependent] vulnerable adult does not
consent and there is probable cause to believe that the [dependent] vulnerable
adult lacks the capacity to make decisions concerning the [dependent] vulnerable
adult's person, the court shall issue an order for immediate protection. This
order may include[, but is not limited to]:
(1) An authorization for the department to transport the person to an appropriate medical or care facility;
(2) An authorization for medical examinations;
(3) An authorization for emergency medical treatment; and
(4) [Such] Any other matters as may
prevent [imminent] immediate abuse, pending a hearing under
section 346‑232.
(d) The court may also make orders as may be appropriate to third persons, including temporary restraining orders, enjoining them from:
(1) Removing the [dependent] vulnerable
adult from the care or custody of another;
(2) [Abusing] Actions that would result in
abuse of the [dependent] vulnerable adult;
(3) Living at the [dependent] vulnerable
adult's residence;
(4) Contacting the [dependent] vulnerable
adult in person or by telephone;
(5) Selling, removing, or otherwise disposing of the
[dependent] vulnerable adult's personal property;
(6) Withdrawing [those] funds from any bank,
savings and loan association, credit union, or other financial institution, or
from a stock account in which the [dependent] vulnerable adult
has an interest;
(7) Negotiating any instruments payable to the [dependent]
vulnerable adult;
(8) Selling, mortgaging, or otherwise encumbering any
interest that the [dependent] vulnerable adult has in real
property;
(9) Exercising any powers on behalf of the [dependent]
vulnerable adult by representatives of the department, any
court-appointed guardian or guardian ad litem, or any official acting on
[their] the vulnerable adult's behalf; and
(10) Engaging in any other specified act [which,]
that, based upon the facts alleged, would constitute harm or present a [threat]
danger of [imminent] immediate harm to the [dependent]
vulnerable adult or would cause the loss of the [dependent] vulnerable
adult's property.
(e) Court orders under section 346-232 and
this section may be obtained upon oral or written application by the
department, without notice and without a hearing. Any oral application shall
be reduced to writing within twenty-four hours. The court may issue its order
orally[,]; provided that it shall reduce the order to writing as
soon as possible thereafter and in any case not later than twenty-four hours
after the court received the written application. Certified copies of the
application and order shall be personally served upon the [dependent] vulnerable
adult and any other person or entity affected by the order together with the
notice of the order to show cause hearing in section 346-232."
SECTION 14. Section 346-232, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-232[]] Order
to show cause hearing. (a) When a written order for immediate protection
is issued, the court shall hold a hearing on the application for immediate
protection, no later than seventy-two hours after issuance of the written order,
excluding any Saturday or Sunday, requiring cause to be shown why the order or
orders should not continue. The department shall make arrangements to have the
[dependent] vulnerable adult attend the hearing or show cause why
the [dependent] vulnerable adult cannot attend.
(b) When the court finds that there is
probable cause to believe that a [dependent] vulnerable adult has
[been abused and is threatened with imminent abuse,] incurred abuse or
is in danger of abuse if immediate action is not taken, and the [dependent]
vulnerable adult consents, or if the [dependent] vulnerable
adult does not consent and the court finds that there is probable cause to
believe that the [dependent] vulnerable adult lacks the capacity
to make decisions concerning the [dependent] vulnerable adult's
person, the court may continue or modify any order pending an adjudicatory
hearing on the petition. These orders may include orders for the [dependent]
vulnerable adult's temporary placement and ordinary medical care.
(c) The parties personally or through counsel
may stipulate to the entry or continuance of such orders as the court deems to
be in the best interest of the [dependent] vulnerable adult, and
the court shall set the case for an adjudicatory hearing as soon as it is
practical."
SECTION 15. Section 346-233, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-233[]] Petition.
(a) A petition invoking the jurisdiction of the court under this part
shall be entitled "In the matter of the protection of ,"
and shall be verified.
(b) The petition shall set forth with specificity the:
(1) Reasons the person is considered to be a [dependent]
vulnerable adult;
(2) Facts [which] that bring the [dependent]
vulnerable adult within this part;
(3) Name, birth date, sex, and residence address of
the [dependent] vulnerable adult;
(4) Names and addresses of any living persons, or entities required to be notified pursuant to section 346-237; and
(5) If appropriate, allegations describing any lack
of capacity of the [dependent] vulnerable adult."
SECTION 16. Section 346-234, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-234[]] Guardian
ad litem; counsel. (a) In any case where the court has reason to believe
that a [dependent] vulnerable adult or any other party lacks the
capacity to effectively make decisions concerning the party's person, it may
appoint a guardian ad litem to represent the interests of that party throughout
the pendency of proceedings under this part. The court shall appoint counsel
for the [dependent] vulnerable adult at any time where it finds
that the [dependent] vulnerable adult requires a separate legal
advocate and is unable to afford private counsel.
(b) The court may order reasonable costs and
fees of the guardian ad litem to be paid by the party for whom the guardian ad
litem is appointed, if that party has sufficient financial resources to pay [such]
the costs and fees. The court may also order the appropriate parties to
pay or reimburse reasonable costs and fees of the guardian ad litem and counsel
appointed for the [dependent] vulnerable adult."
SECTION 17. Section 346-236, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-236[]] Permanent
changes. Permanent changes in the living situation of [an abused dependent]
a vulnerable adult who has incurred abuse shall not ordinarily be
made under authority of this part. If permanent changes in the living
situation or nonemergency medical treatment are necessary, the appropriate
guardianship, or civil commitment action shall be initiated pursuant to
applicable state law."
SECTION 18. Section 346-237, Hawaii Revised Statutes, is amended to read as follows:
"§346-237 Notice of proceedings. (a) After a petition has been filed, the matter shall be set for hearing and a notice of hearing shall be issued to all parties to the proceeding. The parties to the proceeding shall include:
(1) The [dependent] vulnerable adult;
(2) Any caregiver [or facility in which the dependent
adult resides or is a patient;] of the vulnerable adult;
(3) A representative of the facility in which the vulnerable adult resides or is a patient;
[(3)] (4) The spouse and adult children
of the [dependent] vulnerable adult;
[(4)] (5) The parents of the [dependent]
vulnerable adult, unless waived by the court for good cause;
[(5)] (6) Any guardian or conservator
who may have been appointed; and
[(6)] (7) Any other person or entity
affected by the order for immediate protection.
(b) Where the name or whereabouts of a potential party is unknown, the court may require the petitioner to set forth the reasonable efforts the petitioner made to ascertain the party's name or whereabouts and why the petitioner has been unable to determine those facts."
SECTION 19. Section 346-238, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Service of the notice shall be made
by delivery of a copy thereof together with a certified copy of the petition to
each person or entity to be given notice either by personal service, by
certified mail, return receipt requested and addressed to the last known
address, by publication, or by other means authorized by the court. Upon a
showing of good cause, the court may waive notice to any party except the [dependent]
vulnerable adult."
SECTION 20. Section 346-239, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-239[]] Required
findings concerning postponed hearings. Except as otherwise provided, no
hearing shall be delayed upon the grounds that a party other than the [dependent]
vulnerable adult is not present at the hearing or has not been served with
a copy of the order for immediate protection or the petition, where reasonable
efforts have been made to effect service and it would be detrimental to the [dependent]
vulnerable adult to postpone the proceedings until service can be made.
Whenever a hearing is delayed or postponed under this section, the court shall
enter a finding that it will not be detrimental to the [dependent] vulnerable
adult and shall also specify what additional measures shall be undertaken to
effect service."
SECTION 21. Section 346-240, Hawaii Revised Statutes, is amended by amending subsections (a) to (c) to read as follows:
"(a) When a petition has been filed, the
court shall set a return date hearing to be held within thirty days of the
filing of the petition. On the return date, the parties personally or through
counsel may stipulate to the entry or continuance of the orders as the court
deems to be in the best interests of the [dependent] vulnerable
adult, and the court shall set the case for an adjudicatory hearing as soon as
is practical.
(b) In an adjudicatory hearing, the court
shall determine whether the person is a [dependent] vulnerable
adult, and whether the [dependent] vulnerable adult has [been
abused and is threatened with imminent abuse,] incurred abuse or is in
danger of abuse if immediate action is not taken, based upon a
preponderance of the evidence. Evidence [which] that is
contained in a written report, study, or examination shall be admissible[,];
provided that the maker of the written report, study, or examination be subject
to direct and cross-examination upon demand when the maker is reasonably
available. A social worker employed by the department in the area of adult
protective services shall be presumed to be qualified to testify as an expert in
the field of protective services.
(c) If facts sufficient to sustain the
petition are established in court, or are stipulated to by all parties, the
court shall enter an order finding that the [dependent] vulnerable
adult has [been abused and threatened with imminent abuse] incurred
abuse or is in danger of abuse if immediate action is not taken and shall
state the grounds for the finding. The court shall also make a finding
concerning the capacity of the [dependent] vulnerable adult to
effectively make decisions concerning personal needs or property [or both].
If the capacity of the [dependent] vulnerable adult is at issue,
the court shall require that the [dependent] vulnerable adult be
examined by a psychiatrist or other physician who is skilled in evaluating the
particular area in which the [dependent] vulnerable adult is
alleged to lack capacity before making any finding that the [dependent] vulnerable
adult lacks capacity. If there is no finding that the [dependent] vulnerable
adult lacks capacity to make [such] decisions regarding personal
needs or property and if the [dependent] vulnerable adult
does not give consent, the court shall not have authority to proceed further
and the court shall dismiss the case."
SECTION 22. Section 346-241, Hawaii Revised Statutes, is amended by amending subsections (b) to (d) to read as follows:
"(b) The proposed protective order may include any of the provisions set forth in section 346-231, and, in addition may include an order that:
(1) The person inflicting abuse on the [dependent]
vulnerable adult participate in counseling or therapy as the court deems
appropriate;
(2) Any party report to the department any violation of the protective order or protective services plan;
(3) The department make periodic home visits to the [dependent]
vulnerable adult; and
(4) The department monitor compliance with the order.
(c) The proposed protective services plan shall set forth the following:
(1) Specific services or treatment to be provided to
the [dependent] vulnerable adult and the specific actions the
parties shall take;
(2) Specific responsibilities that the parties shall assume;
(3) Period during which the services shall be provided;
(4) Dates by which the actions shall be completed;
(5) Specific consequences that may be reasonably anticipated to result from a party's failure to comply with any terms and conditions of the plan; and
(6) Steps that shall be necessary to terminate the court's jurisdiction.
(d) In preparing such a proposed protective
order, the department shall seek to impose the least restrictive limitation on
the freedom and liberties of the [dependent] vulnerable adult.
To the greatest extent possible, the [dependent] vulnerable adult
should be permitted to participate in decisions concerning the [dependent]
vulnerable adult's person, or property, or both."
SECTION 23. Section 346-242, Hawaii Revised Statutes, is amended to read as follows:
"§346-242 Review hearings. Except
for good cause shown, the court shall set each case for a review hearing not
later than six months after the date that a protective order and protective
services plan are ordered by the court. Thereafter, the court shall review the
matter at intervals of not longer than six months until the court's
jurisdiction has been terminated. The department and the guardian ad litem, if
any, shall submit a written report, with copies to the parties or their
counsel, at least fifteen days prior to the date set for each review. The
report shall evaluate whether the parties have complied with the terms and
conditions of the protective order and protective services plan; shall
recommend any modification to the order or plan; and shall recommend whether
the court shall retain jurisdiction or terminate the case. At each review, the
court shall determine whether the parties have complied with the terms and
conditions of the order and plan; enforce [such] sanctions for
noncompliance as may be appropriate; and order [such] revisions to the
existing order or plan as are in the best interests of the [dependent] vulnerable
adult. At each review, the court shall make an express finding as to whether
it shall retain jurisdiction or terminate the case, and, in each instance,
shall state the basis for its action."
SECTION 24. Section 346-247, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-247[]] Payment
for service or treatment provided to a party. Whenever service,
treatment, care, or support of a [dependent] vulnerable
adult is provided under this part, the persons or legal entities who may be
legally obligated to pay for the service, treatment, care, or support of the [dependent
person,] vulnerable adult, may be ordered by the court to pay the
cost of the service, care, support, or treatment provided to the [dependent]
vulnerable adult in whole or in part, after notice and hearing."
SECTION 25. Section 346-249, Hawaii Revised Statutes, is amended to read as follows:
"[[]§346-249[]] Cooperation.
Every public official or department shall render all assistance and cooperation
within the official's or department's power and [which] that may
further the purpose and objectives of this part. The department and the court
may seek the cooperation of organizations whose objectives are to protect or
aid [dependent] vulnerable adults."
SECTION 26. Section 571-14, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Except as provided in sections 603-21.5 and 604-8, the court shall have exclusive original jurisdiction:
(1) To try any offense committed against a child by the child's parent or guardian or by any other person having the child's legal or physical custody, and any violation of section 707-726, 707-727, 709-902, 709‑903, 709-903.5, 709-904, 709-905, 709-906, or 302A-1135, whether or not included in other provisions of this paragraph or paragraph (2);
(2) To try any adult charged with:
(A) Deserting, abandoning, or failing to provide support for any person in violation of law;
(B) An offense, other than a felony, against the person of the defendant's husband or wife;
(C) Any violation of an order issued pursuant to chapter 586; or
(D) Any violation of an order issued by a family court judge.
In any case within paragraph (1) or (2), the court, in its discretion, may waive its jurisdiction over the offense charged;
(3) In all proceedings under chapter 580, and in all proceedings under chapter 584;
(4) In proceedings under chapter 575, the Uniform Desertion and Nonsupport Act, and under chapter 576B, the Uniform Interstate Family Support Act;
(5) For commitment of an adult alleged to be mentally defective or mentally ill;
(6) In all proceedings for support between parent and child or between husband and wife;
(7) In all proceedings for pre-trial detention or waiver of jurisdiction over an adult who was a child at the time of an alleged criminal act as provided in section 571-13 or 571-22;
(8) In all proceedings under chapter 586, Domestic Abuse Protective Orders; and
(9) For the protection of [dependent] vulnerable
adults under chapter 346, part X.
In any case within paragraph (3), (4), or (6), the attorney general, through the child support enforcement agency, may exercise concurrent jurisdiction as provided in chapter 576E."
SECTION 27. Section 626:1-505.5, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:
"(d) Exceptions. There is no privilege under this rule:
(1) Perjured testimony by victim. If the victim counselor reasonably believes that the victim has given perjured testimony and a party to the proceeding has made an offer of proof that perjury may have been committed.
(2) Physical appearance and condition of victim. In matters of proof concerning the physical appearance and condition of the victim at the time of the alleged crime.
(3) Breach of duty by victim counselor or victim counseling program. As to a communication relevant to an issue of breach of duty by the victim counselor or victim counseling program to the victim.
(4) Mandatory reporting. To relieve victim counselors
of any duty to refuse to report child abuse or neglect under chapter 350,
domestic abuse under chapter 586, or abuse of a [dependent] vulnerable
adult under part X of chapter 346, and to refuse to provide evidence in child
abuse proceedings under chapter 587.
(5) Proceedings for hospitalization. For communications relevant to an issue in proceedings to hospitalize the victim for mental illness or substance abuse, or in proceedings for the discharge or release of a victim previously hospitalized for mental illness or substance abuse.
(6) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a victim, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose of which the examination is ordered unless the court orders otherwise.
(7) Condition an element of claim or defense. As to a communication relevant to the physical, mental, or emotional condition of the victim in any proceeding in which the victim relies upon the condition as an element of the victim's claim or defense or, after the victim's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.
(8) Proceedings against the victim counselor. In any administrative or judicial proceeding in which the competency or practice of the victim counselor or of the victim counseling program is at issue, provided that the identifying data of the victims whose records are admitted into evidence shall be kept confidential unless waived by the victim. The administrative agency, board or commission shall close to the public any portion of a proceeding, as necessary to protect the confidentiality of the victim."
SECTION 28. Section 846-2.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Criminal history record checks may be conducted by:
(1) The department of health on operators of adult foster homes or developmental disabilities domiciliary homes and their employees, as provided by section 333F-22;
(2) The department of health on prospective employees, persons seeking to serve as providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services as provided by section 321-171.5;
(3) The department of health on all applicants for
licensure for, operators for, and prospective employees, and volunteers at one
or more of the following: skilled nursing facility, intermediate care
facility, adult residential care home, expanded adult residential care [homes,]
home, assisted living facility, home health agency, hospice, adult day
health center, special treatment facility, therapeutic living program,
intermediate care facility for the mentally retarded, hospital, rural health
center and rehabilitation agency, and, in the case of any of the above-related
facilities operating in a private residence, on any adult living in the
facility other than the client as provided by section 321-15.2;
(4) The department of education on employees, prospective employees, and teacher trainees in any public school in positions that necessitate close proximity to children as provided by section 302A‑601.5;
(5) The counties on employees and prospective employees who may be in positions that place them in close proximity to children in recreation or child care programs and services;
(6) The county liquor commissions on applicants for liquor licenses as provided by section 281-53.5;
(7) The department of human services on operators and employees of child caring institutions, child placing organizations, and foster boarding homes as provided by section 346-17;
(8) The department of human services on prospective adoptive parents as established under section 346‑19.7;
(9) The department of human services on applicants to operate child care facilities, prospective employees of the applicant, and new employees of the provider after registration or licensure as provided by section 346-154;
(10) The department of human services on persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by section 346-152.5;
(11) The department of human services on operators and employees of home and community-based case management agencies and operators and other adults, except for adults in care, residing in foster family homes as provided by section 346-335;
(12) The department of human services on staff members of the Hawaii youth correctional facility as provided by section 352-5.5;
(13) The department of human services on employees, prospective employees, and volunteers of contracted providers and subcontractors in positions that place them in close proximity to youth when providing services on behalf of the office or the Hawaii youth correctional facility as provided by section 352D‑4.3;
(14) The judiciary on employees and applicants at detention and shelter facilities as provided by section 571-34;
(15) The department of public safety on employees and prospective employees who are directly involved with the treatment and care of persons committed to a correctional facility or who possess police powers including the power of arrest as provided by section 353C-5;
(16) The department of commerce and consumer affairs on applicants for private detective or private guard licensure as provided by section 463-9;
(17) Private schools and designated organizations on employees and prospective employees who may be in positions that necessitate close proximity to children; provided that private schools and designated organizations receive only indications of the states from which the national criminal history record information was provided as provided by section 302C‑1;
(18) The public library system on employees and prospective employees whose positions place them in close proximity to children as provided by section 302A‑601.5;
(19) The State or any of its branches, political
subdivisions, or agencies on applicants and employees holding a position that
has the same type of contact with children, [dependent] vulnerable
adults, or persons committed to a correctional facility as other public
employees who hold positions that are authorized by law to require criminal history
record checks as a condition of employment as provided by section 78-2.7;
(20) The department of human services on licensed adult day care center operators, employees, new employees, subcontracted service providers and their employees, and adult volunteers as provided by section 346-97;
(21) The department of human services on purchase of service contracted and subcontracted service providers and their employees serving clients of the adult and community care services branch, as provided by section 346-97;
(22) The department of human services on foster grandparent program, retired and senior volunteer program, senior companion program, and respite companion program participants as provided by section 346-97;
(23) The department of human services on contracted and subcontracted service providers and their current and prospective employees that provide home and community-based services under Section 1915(c) of the Social Security Act (42 U.S.C. §1396n(c)), or under any other applicable section or sections of the Social Security Act for the purposes of providing home and community-based services, as provided by section 346-97; and
(24) Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law."
SECTION 29. The department of human services may work with interested stakeholders to develop a plan to build the capacity of community-based services to help with the provision of services under this Act.
SECTION 30. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 31. This Act shall take effect on July 1, 2009.