HOUSE COMMITTEE SUBSTITUTE FOR

HOUSE BILLS NOS. 1386 & 1086

90TH GENERAL ASSEMBLY

TERRY L. SPIELER, Secretary.

2490S.09C

To repeal sections 660.250, 660.260 and 660.300, RSMo 1994, and sections 210.903, 210.909, 210.915 and 210.936, RSMo Supp. 1999, relating to care for the elderly or disabled, and to enact in lieu thereof ten new sections relating to the same subject, with penalty provisions.

Section A.  Sections 660.250, 660.260 and 660.300, RSMo 1994, and sections 210.903, 210.909, 210.915 and 210.936, RSMo Supp. 1999, are repealed and ten new sections enacted in lieu thereof, to be known as sections 210.903, 210.909, 210.915, 210.936, 570.145, 660.250, 660.252, 660.260, 660.300 and 660.302, to read as follows:

210.903.  1.  To protect children and the elderly in this state, and to promote family and community safety by providing information concerning family caregivers, there is hereby established within the department of health a "Family Care Safety Registry and Access Line" which shall be available by January 1, 2001.

2.  The family care safety registry shall contain information on child-care workers' and elder-care workers' background and on child-care and elder-care providers through:

(1)  The patrol's criminal record check system pursuant to section 43.540, RSMo, including state and national information, to the extent possible;

(2)  Probable cause findings of abuse and neglect pursuant to sections 210.109 to 210.183;

(3)  The division of aging's employee disqualification list pursuant to section 660.315, RSMo;

(4)  The department of mental health's employee disqualification list pursuant to section 630.170, RSMo;

(5)  Foster parent licensure denials, revocations and suspensions pursuant to section 210.496;

[(5)]  (6)  Child-care facility license denials, revocations and suspensions pursuant to sections 210.201 to 210.259; and

[(6)]  (7)  Residential living facility and nursing home license denials, revocations, suspensions and probationary status pursuant to chapter 198, RSMo.

210.909.  1.  Upon submission of a completed registration form by a child-care worker or elder-care worker, the department, in coordination with the department of social services, shall:

(1)  Determine if a probable cause finding of child abuse or neglect involving the applicant has been recorded pursuant to section 210.145;

(2)  Determine if the applicant has been refused licensure or has experienced licensure suspension or revocation pursuant to section 210.496;

(3)  Determine if the applicant has been placed on either or both of the employee disqualification [list] lists pursuant to [section] sections 630.170 and 660.315, RSMo;

(4)  Determine through a request to the patrol pursuant to section 43.540, RSMo, whether the applicant has any conviction, plea of guilty or nolo contendere, or a suspended execution of sentence to a felony charge of any offense pursuant to chapters 198, 334, 560, 565, 566, 568, 569, 573, 575 and 578, RSMo; and

(5)  If the background check involves a provider, determine if a facility has been refused licensure or has experienced licensure suspension, revocation or probationary status pursuant to sections 210.201 to 210.259 or chapter 198, RSMo.

2.  Upon completion of the background check described in subsection 1 of this section, the department shall include information in the registry for each registrant as to whether any felony convictions, employee disqualification listings pursuant to section 660.315, RSMo, probable cause findings, pleas of guilty or nolo contendere, or license denial, revocation or suspension have been documented through the records checks authorized pursuant to the provisions of sections 210.900 to 210.936.

3.  The department shall notify such registrant in writing of the results of the determination recorded on the registry pursuant to this section.

210.915.  The department of corrections, the department of public safety, the department of mental health and the department of social services shall collaborate with the department to compare records on child-care and elder-care workers, and the records of persons with criminal convictions and the background checks pursuant to subdivisions (1) to (6) of subsection 2 of section 210.903, and to enter into any interagency agreements necessary to facilitate the receipt of such information and the ongoing updating of such information.  The department, in coordination with the department of social services, shall promulgate rules and regulations concerning such updating, including subsequent background reviews as listed in subsection 1 of section 210.909.

210.936.  For purposes of providing background information pursuant to sections 210.900 to 210.936, reports and related information pursuant to sections 198.070 and 198.090, RSMo, sections 210.109 to 210.183, section 630.170 and sections 660.300 to 660.315, RSMo, shall be deemed public records.

570.145.  1.  A person is guilty of the offense of financial exploitation of an elderly or disabled person if such person stands in a position of trust and confidence with the elderly or disabled person, and such person knowingly and by deception or intimidation obtains control over the elderly or disabled person's property with the intent to permanently deprive the elderly or disabled person of the use, benefit or possession of his or her property thereby benefiting such person or detrimentally affecting the elderly or disabled person.  Financial exploitation of an elderly or disabled person is a class A misdemeanor if the value of the property is less than two hundred fifty dollars and a class C felony if the value of the property is two hundred fifty dollars or more.

2.  For purposes of this section, the following terms mean:

(1)  "Deception", a misrepresentation or concealment of material fact relating to the terms of a contract or agreement entered into with the elderly or disabled person or to the existing or preexisting condition of any of the property involved in such contract or agreement, or the use or employment of any misrepresentation, false pretense or false promise in order to induce, encourage or solicit the elderly or disabled person to enter into a contract or agreement.  "Deception" includes:

(a)  Creating or confirming another person's impression which is false and which the offender does not believe to be true; or

(b)  Failure to correct a false impression which the offender previously has created or confirmed; or

(c)  Preventing another person from acquiring information pertinent to the disposition of the property involved; or

(d)  Selling or otherwise transferring or encumbering property, failing to disclose a lien, adverse claim or other legal impediment to the enjoyment of the property, whether such impediment is or is not valid, or is or is not a matter of official record; or

(e)  Promising performance which the offender does not intend to perform or knows will not be performed.  Failure to perform standing alone is not sufficient evidence to prove that the offender did not intend to perform;

(2)  "Disabled person", a person who suffers from a physical or mental impairment resulting from disease, injury, functional disorder or congenital condition which renders such person incapable of avoiding or preventing the commission of an offense;

(3)  "Elderly person", a person sixty years of age or older who is suffering from a disease or infirmity associated with advanced age and manifested by physical, mental or emotional dysfunctioning to the extent that such person is incapable of avoiding or preventing the commission of the offense;

(4)  "Intimidation", the communication to an elderly or disabled person that he or she will be deprived of food and nutrition, shelter, prescribed medication, or medical care and treatment.

3.  For purposes of this section, a person stands in a position of trust and confidence with an elderly or disabled person when such person:

(1)  Is a parent, spouse, adult child or other relative by blood or marriage of the elderly or disabled person;

(2)  Is a joint tenant or tenant in common with the elderly or disabled person with knowledge of such relationship;

(3)  Has a legal or fiduciary relationship with the elderly or disabled person; or

(4)  Has a relationship with the elderly or disabled person as a health care or personal care worker.

4.  Nothing in this section shall be construed to limit the remedies available to the victim pursuant to any state law relating to domestic violence.

5.  Nothing in this section shall be construed to impose criminal liability on a person who has made a good faith effort to assist the elderly or disabled person in the management of his or her property, but through no fault of his or her own has been unable to provide such assistance.

6.  Nothing in this section shall limit the ability to engage in bona fide estate planning, to transfer property and to otherwise seek to reduce estate and inheritance taxes; provided that such actions do not adversely impact the standard of living to which the elderly or disabled person has become accustomed at the time of such actions.

7.  It shall not be a defense to financial exploitation of an elderly or disabled person that the accused reasonably believed that the victim was not an elderly or disabled person.

660.250.  As used in sections 660.250 to 660.305, the following terms mean:

(1)  "Abuse", the infliction of physical, sexual, or emotional injury or harm including financial exploitation by any person, firm or corporation;

(2)  "Court", the circuit court;

(3)  "Department", the department of social services;

(4)  "Director", director of the department of social services or his designees;

(5)  "Eligible adult", a person sixty years of age or older or an adult with a handicap, as defined in section 660.053, between the ages of eighteen and fifty-nine who is unable to protect his own interests or adequately perform or obtain services which are necessary to meet his essential human needs;

(6)  "In-home services client", an eligible adult who is receiving services in his or her private residence through any in-home services provider agency;

(7)  "In-home services employee", a person employed by an in-home services provider agency;

(8)  "In-home services provider agency", a business entity under contract with the department or with a medicaid participation agreement or an agency licensed by the department of health as provided in sections 197.400 to 197.470, RSMo, which employs persons to deliver any kind of services provided for eligible adults in their private homes;

(9)  "Least restrictive environment", a physical setting where protective services for the eligible adult and accommodation is provided in a manner no more restrictive of an individual's personal liberty and no more intrusive than necessary to achieve care and treatment objectives;

(10)  "Likelihood of serious physical harm", one or more of the following:

(a)  A substantial risk that physical harm to an eligible adult will occur because of his failure or inability to provide for his essential human needs as evidenced by acts or behavior which has caused such harm or which gives another person probable cause to believe that the eligible adult will sustain such harm;

(b)  A substantial risk that physical harm will be inflicted by an eligible adult upon himself, as evidenced by recent credible threats, acts, or behavior which has caused such harm or which places another person in reasonable fear that the eligible adult will sustain such harm;

(c)  A substantial risk that physical harm will be inflicted by another upon an eligible adult as evidenced by recent acts or behavior which has caused such harm or which gives another person probable cause to believe the eligible adult will sustain such harm;

(d)  A substantial risk that further physical harm will occur to an eligible adult who has suffered physical injury, neglect, sexual or emotional abuse, or other maltreatment or wasting of his financial resources by another person;

(11)  "Neglect", the failure to provide services to an eligible adult by any person, firm or corporation with a legal or contractual duty to do so, when such failure presents either an imminent danger to the health, safety, or welfare of the client or a substantial probability that death or serious physical harm would result;

(12)  "Noncompliant client" or "noncompliant", an in-home client who is able to make decisions, but unwilling to accept assistance as authorized in the department plan of service necessary to meet his or her essential human needs when such unwillingness creates a likelihood of serious physical harm;

[(12)]  (13)  "Protective services", services provided by the state or other governmental or private organizations or individuals which are necessary for the eligible adult to meet his essential human needs.

660.252.  The department shall describe curriculum for training on identification and prevention of abuse and neglect that will be incorporated into all Medicaid participation agreements entered into between the department of social services and in-home services provider agencies.

660.260.   Upon receipt of a report, the department shall [make] initiate a prompt and thorough investigation [to].  Within twenty-four hours, the department shall immediately investigate reports which indicate a clear and immediate danger.  The department shall determine whether or not an eligible adult is facing a likelihood of serious physical harm and is in need of protective services.  The department shall provide for any of the following:

(1)  Identification of the eligible adult and determination that the eligible adult is eligible for services;

(2)  Evaluation and diagnosis of the needs of eligible adults;

(3)  Provision of social casework, counseling or referral to the appropriate local or state authority;

(4)  Assistance in locating and receiving alternative living arrangements as necessary;

(5)  Assistance in locating and receiving necessary protective services; or

(6)  The coordination and cooperation with other state agencies and public and private agencies in exchange of information and the avoidance of duplication of services.

660.300.  1.  [Beginning January 1, 1993,] When any physician, dentist, chiropractor, optometrist, podiatrist, intern, nurse, medical examiner, social worker, psychologist, minister, Christian Science practitioner, peace officer, pharmacist, physical therapist, in-home services owner, in-home services provider, in-home services operator, in-home services employee, or employee of the department of social services or of the department of health or of the department of mental health or employee or volunteer for a local area agency on aging or for an organized area agency on aging program has reasonable cause to believe that an in-home services client has been abused or neglected, as a result of in-home services, he or she shall immediately report or cause a report to be made to the department.  If the report is made by a physician of the in-home services client, then the department shall maintain contact with the physician regarding the progress of the investigation.  Any in-home services provider shall report to the department an in-home services client who is at risk of serious physical harm because the client is noncompliant with the department's plan of service.

2.  Upon notification by the in-home services provider of a client suspected to be noncompliant, the department nurse shall attempt to resolve the circumstances with the case manager and shall investigate the allegation when necessary.  The nurse shall report to the referring provider about the status of the case within one calendar week.  If unable to resolve the situation, the department shall refer the client to the interdisciplinary case management team as established in subsection 3 of this section.  The interdisciplinary case management team shall attempt to resolve the circumstances.  If unable, the team shall issue a consensus report about the case and the client shall be identified as noncompliant.  Providers of clients that have been identified as noncompliant by the team are not liable solely for the consequences of the client's noncompliant behavior.

3.  The department shall establish ad-hoc interdisciplinary case management teams to assist the department, the client's case manager, and the client's in-home services provider by acting as consultants and by intervening in cases where the team's specialized expertise will supplement the plan of service.  The department shall determine membership on the interdisciplinary case management teams on a case by case basis.  The teams shall include at a minimum the client's case manager, a department nurse, an in-home services provider nurse, a long-term care specialist, a mental health professional as defined by 9 CSR 30-4.025 provided through the department of mental health, and may include a representative of law enforcement, a physician and other local resources.  The mental health professional, shall, when appropriate, assume the role of co-case manager for the in-home services client.  In cases in which the interdisciplinary case management team believes the client, as a result of a mental disorder, presents a likelihood of serious harm as defined in section 632.005, the interdisciplinary team shall refer the client to a mental health coordinator who shall conduct an investigation pursuant to section 632.300.

4.  Local area agencies on aging shall provide volunteer training, if requested, to those persons listed in subsection 1 of this section regarding the detection and report of abuse and neglect, pursuant to this section.

[2.]  5.  Any person required in subsection 1 of this section to report or cause a report to be made to the department who fails to do so within a reasonable time after the act of abuse or neglect is guilty of a class A misdemeanor.

[3.]  6.  The report shall contain the names and addresses of the in-home services provider agency, the in-home services employee, the in-home services client, information regarding the nature of the abuse or neglect, the name of the complainant, and any other information which might be helpful in an investigation.

[4.]  7.  In addition to those persons required to report under subsection 1 of this section, any other person having reasonable cause to believe that an in-home services client has been abused or neglected by an in-home services employee may report such information to the department.

[5.  Upon receipt of a report, the department shall initiate a prompt and thorough investigation.

6.]  8.  If the investigation indicates possible abuse or neglect of an in-home services client, the investigator shall refer the complaint together with his or her report to the department director or his or her designee for appropriate action.  If, during the investigation or at its completion, the department has reasonable cause to believe that immediate removal is necessary to protect the in-home services client from abuse or neglect, the department or the local prosecuting attorney may, or the attorney general upon request of the department shall, file a petition for temporary care and protection of the in-home services client in a circuit court of competent jurisdiction.  The circuit court in which the petition is filed shall have equitable jurisdiction to issue an ex parte order granting the department authority for the temporary care and protection of the in-home services client, for a period not to exceed thirty days.

[7.]  9.  Reports shall be confidential, as provided under section 660.320.

[8.]  10.  Anyone, except any person who has abused or neglected an in-home services client, who makes a report pursuant to this section or who testifies in any administrative or judicial proceeding arising from the report shall be immune from any civil or criminal liability for making such a report or for testifying except for liability for perjury, unless such person acted negligently, recklessly, in bad faith, or with malicious purpose.

[9.]  11.  Within five working days after a report required to be made under this section is received, the person making the report shall be notified in writing of its receipt and of the initiation of the investigation.

[10.]  12.  No person who directs or exercises any authority in an in-home services provider agency shall harass, dismiss or retaliate against an in-home services client or an in-home services employee because he or any member of his or her family has made a report of any violation or suspected violation of laws, standards or regulations applying to the in-home services provider agency or any in-home services employee which he has reasonable cause to believe has been committed or has occurred.

[11.]  13.  Any person who knowingly abuses or neglects an in-home services client shall be guilty of a class D felony.

[12.]  14.  The department shall maintain the employee disqualification list and place on the employee disqualification list the names of any persons who have been finally determined by the department, pursuant to section 660.315, to have recklessly, knowingly or purposely abused or neglected an in-home services client while employed by an in-home services provider agency.

15.  The department shall establish a procedure by which all in-home services clients will be categorized based on their care and condition needs after the initial qualification assessment.  The department shall determine the criteria for each category by rule, pursuant to chapter 536, RSMo.  The department may refer any client to an interdisciplinary case management team, as necessary.  The department may authorize the in-home services provider nurse, licensed pursuant to chapter 335, RSMo, to assist the department in the assessment of the client's condition upon initiation of services to determine the care needs of the client and establish a plan of services appropriate to meet the client's needs.  After initial assessment of the client, nurse visits shall be authorized twice annually for clients with plans of service that do not include nurse visits as part of the plan for the purpose of assessing the client and the client's services.  If the provider nurse believes that the plan of service needs alteration, the department shall be notified and the department shall make a client evaluation.  All authorized nurse visits shall be reimbursed to the in-home services provider.  All department authorized nurse visits shall be reimbursed outside of the nursing home cap for in-home clients whose services have reached one hundred percent of the average statewide charge for care and treatment in an intermediate care facility, provided that the services have been pre-authorized by the department.

16.  All in-home clients shall be advised of their rights by the department at the initial evaluation.  The rights shall include, but not be limited to, the right to call the department for any reason, including dissatisfaction with the provider or services.  The department shall establish a process to receive these nonabuse and neglect calls other than the elder abuse and neglect hotline.

17.  The department shall establish a quality assurance and supervision process for clients that assures the in-home services provider is reimbursed for any nurse assessment portion of the process.

660.302.  1.  The department of social services shall investigate incidents and reports of elder abuse using the procedures established in sections 660.250 to 660.295 and shall promptly refer all suspected cases of elder abuse to the appropriate law enforcement agency and prosecutor and shall determine whether protective services are required pursuant to sections 660.250 to 660.295.

2.  The division of aging and law enforcement agencies shall require training and cross-training of personnel regarding the proper handling of cases involving elder abuse.  The division of aging, in cooperation with law enforcement agencies, shall, by rule, develop a checklist for division and law enforcement personnel to follow when investigating possible elder abuse.

3.  Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo.  This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2000, shall be invalid and void.