HB2587 - 562R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 36-431.01, Arizona Revised Statutes, is amended to read:

START_STATUTE36-431.01. Violations; civil penalties; enforcement

A. The director may assess a civil penalty against a person who violates this chapter or a rule adopted pursuant to this chapter in an amount of not to exceed five hundred dollars more than $500 for each violation. Each day that a violation occurs constitutes a separate violation.

B. The director may issue a notice of assessment that shall include the proposed amount of the assessment. A person may appeal the assessment by requesting a hearing pursuant to title 41, chapter 6, article 10. When an assessment is appealed, the director shall take no further action to enforce and collect the assessment until after the hearing.

C. In determining the amount of the civil penalty pursuant to subsection A of this section, the department shall consider the following:

1. Repeated violations of statutes or rules.

2. Patterns of noncompliance.

3. Types of violations.

4. Severity of violations.

5. Potential for and occurrences of actual harm.

6. Threats to health and safety.

7. Number of persons affected by the violations.

8. Number of violations.

9. Size of the facility.

10. Length of time that the violations have been occurring.

11. Whether the health care institution and staff are in compliance with the reporting requirements pursuant to section 46-454.

D. Pursuant to interagency agreement specified in section 36-409, the director may assess a civil penalty, including interest, in accordance with 42 United States Code section 1396r. A person may appeal this assessment by requesting a hearing before the director in accordance with subsection B of this section. Civil penalty amounts may be established by rules adopted by the director that conform to guidelines or regulations adopted by the secretary of the United States department of health and human services pursuant to 42 United States Code section 1396r.

E. Actions to enforce the collection of penalties assessed pursuant to subsections A and D of this section shall be brought by the attorney general or the county attorney in the name of the state in the justice court or the superior court in the county in which the violation occurred.

F. Penalties assessed under subsection D of this section are in addition to and not in limitation of other penalties imposed pursuant to this chapter. All civil penalties and interest assessed pursuant to subsection D of this section shall be deposited, pursuant to sections 35-146 and 35-147, in the nursing care institution resident protection revolving fund established by section 36-431.02. The director shall use these monies for the purposes prescribed by 42 United States Code section 1396r, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of the deficiencies or closure and reimbursement of residents for personal monies lost.

G. The department shall transmit deposit civil penalties assessed under subsection A of this section to in the state general fund. END_STATUTE

Sec. 2. Section 46-452, Arizona Revised Statutes, is amended to read:

START_STATUTE46-452. Protective services workers; powers and duties; immunity; communications; access to records

A. A Each protective services worker shall:

1. Receive reports of abused, exploited or neglected vulnerable adults.

2. Receive from any source oral or written information regarding an adult who may be in need of protective services.

3. On receipt of such information make an evaluation to determine if the adult is in need of protective services and what services, if any, are needed.

4. Offer an adult in need of protective services or his the adult's guardian whatever services appear appropriate in view of the evaluation.

5. File petitions as necessary for the appointment of a guardian or conservator or the appointment of a temporary guardian or temporary conservator or make application for a special visitation warrant as provided for in title 14, chapter 5.

6. File for an emergency order of protection as a third party pursuant to section 13-3624 or an injunction against harassment pursuant to section 12-1809 to prevent an alleged perpetrator from having access to the vulnerable adult.

B. The department or a protective services worker employed by the department may not be appointed as guardian, conservator or temporary guardian.

C. An adult protective services worker is immune from civil liability for applying for a special visitation warrant or for filing a petition for guardianship or conservatorship unless the application or filing is done in bad faith.

D. For the purposes of this chapter, communications concerning a person who is incarcerated in any jail, prison, detention center or correctional facility or concerning a patient in the Arizona state hospital are not reports that require evaluation by a protective services worker.

E. The department or a protective services worker, in performing official duties, may access unredacted law enforcement records RELATED to an adult protective services case. A law enforcement entity shall furnish relevant records to adult protective services on request.END_STATUTE

Sec. 3. Section 46-454, Arizona Revised Statutes, is amended to read:

START_STATUTE46-454. Duty to report abuse, neglect and exploitation of vulnerable adults; duty to make medical records available; violation; classification

A. A health professional, emergency medical technician, home health provider, hospital intern or resident, speech, physical or occupational therapist, long-term care provider, social worker, peace officer, medical examiner, guardian, conservator, fire protection personnel, developmental disabilities provider, employee of the department of economic security or other person who has responsibility for the care of a vulnerable adult and who has a reasonable basis to believe that abuse, neglect or exploitation of the vulnerable adult has occurred shall immediately report or cause reports to be made of such reasonable basis to a peace officer or to the adult protective services central intake unit. The guardian or conservator of a vulnerable adult shall immediately report or cause reports to be made of such reasonable basis to the superior court and the adult protective services central intake unit. All of The above reports required by this subsection shall be made immediately by telephone or online.

B. If an individual listed in subsection A of this section is an employee or agent of a health care institution as defined in section 36-401 and the health care institution's procedures require that all suspected abuse, neglect and exploitation be reported to adult protective services as required by law, the individual is deemed to have complied with the requirements of subsection A of this section by reporting or causing a report to be made to the health care institution in accordance with the health care institution's procedures.

C. An attorney, accountant, trustee, guardian, conservator or other person who has responsibility for preparing the tax records of a vulnerable adult or a person who has responsibility for any other action concerning the use or preservation of the vulnerable adult's property and who, in the course of fulfilling that responsibility, discovers a reasonable basis to believe that abuse, neglect or exploitation of the vulnerable adult has occurred shall immediately report or cause reports to be made of such reasonable basis to a peace officer or to the adult protective services central intake unit. All of The above reports required by this subsection shall be made immediately by telephone or online.

D. Reports pursuant to subsections A and C of this section shall contain:

1. The names and addresses of the vulnerable adult and any persons having control or custody of the vulnerable adult, if known.

2. The vulnerable adult's age and the nature and extent of the vulnerable adult's vulnerability.

3. The nature and extent of the abuse, neglect or exploitation.

4. Any other information that the person reporting believes might be helpful in establishing the cause of the abuse, neglect or exploitation.

E. Any person other than one required to report or cause reports to be made in pursuant to subsection A or C of this section who has a reasonable basis to believe that abuse, neglect or exploitation of a vulnerable adult has occurred may report the information to a peace officer or to the adult protective services central intake unit.

F. A person having custody or control of medical or financial records of a vulnerable adult for whom a report is required or authorized under this section shall make those records, or a copy of those records, available to a peace officer or adult protective services worker investigating the vulnerable adult's abuse, neglect or exploitation on written request for the records signed by the peace officer or adult protective services worker. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding or investigation resulting from a report required or authorized under this section.

G. If reports pursuant to this section are received by a peace officer, the peace officer shall notify the adult protective services central intake unit as soon as possible and make that information available to them, including all RELATED unredacted police records. A peace officer shall provide the information to adult protective services as soon as possible.

H. A person required to receive reports pursuant to subsection A, C or E of this section may take or cause to be taken photographs of the abused vulnerable adult and the vicinity involved. Medical examinations, including radiological examinations of the involved vulnerable adult, may be performed. Accounts, inventories or audits of the exploited vulnerable adult's property may be performed. The person, department, agency or court that initiates the photographs, examinations, accounts, inventories or audits shall pay the associated costs in accordance with existing statutes and rules. If any person is found to be responsible for the abuse, neglect or exploitation of a vulnerable adult in a criminal or civil action, the court may order the person to make restitution as the court deems appropriate.

I. If psychiatric records are requested pursuant to subsection F of this section, the custodian of the records shall notify the attending psychiatrist, who may excise from the records, before they are made available:

1. Personal information about individuals other than the patient.

2. Information regarding specific diagnosis or treatment of a psychiatric condition, if the attending psychiatrist certifies in writing that release of the information would be detrimental to the patient's health or treatment.

J. If any portion of a psychiatric record is excised pursuant to subsection I of this section, a court, on application of a peace officer or adult protective services worker, may order that the entire record or any portion of the record containing information relevant to the reported abuse, neglect or exploitation be made available to the peace officer or adult protective services worker investigating the abuse, neglect or exploitation.

K. A licensing agency shall not find that a reported incidence of abuse at a care facility by itself is sufficient grounds to allow the agency to close the facility or to find that all residents are in imminent danger.

L. Retaliation against a person who in good faith reports abuse, neglect or exploitation is prohibited. Retaliation against a vulnerable adult who is the subject of a report is prohibited. Any adverse action taken against a person who reports abuse, neglect or exploitation or a vulnerable adult who is the subject of the report within ninety days after the report is filed is presumed to be retaliation.

M. A person who violates this section is guilty of a class 1 misdemeanor, except that if the failure to report involves an offense listed in title 13, chapter 14, the person is guilty of a class 6 felony.END_STATUTE