No. 41698 (Amendment): Rule R510-302. Adult Protective Services

(Amendment)

DAR File No.: 41698
Filed: 05/23/2017 03:53:46 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Recent changes have been made in the way investigations are coordinated between Adult Protective Services and the Long-term Care Ombudsman program. The changes adjust and clarify which program will investigate certain cases when a resident of a long-term care facility is involved. The proposed amendment explains these changes.

Summary of the rule or change:

Previously, with the exception of issues of sexual abuse, the Long-term Care Ombudsman program investigated cases of abuse, neglect, and exploitation involving residents of care facilities, while Adult Protective Services investigated the same cases outside of facilities. Due to authority and other issues, it was determined that Adult Protective Services should investigate all cases of abuse, neglect, and exploitation regardless of the setting.

Statutory or constitutional authorization for this rule:

• Section 62A-3-302
• Section 62A-3-301

Anticipated cost or savings to:

the state budget:

The change moves responsibility from one program to another within the Division of Aging and Adult Services and will not result in additional costs or savings.

local governments:

Local Long-term Care Ombudsman programs will continue to work on other issues within the facilities and will not see a savings or new costs as a result.

small businesses:

These programs are not overseen by small business and they will see neither a new cost nor a savings as a result.

persons other than small businesses, businesses, or local governmental entities:

There is no other anticipated impact of this change. The change is within the Division of Aging and Adult Services and does impact other persons.

Compliance costs for affected persons:

The individuals involved have not had costs associated with these reports and will not have them with the change.

Comments by the department head on the fiscal impact the rule may have on businesses:

The update to this rule does not create a savings or new costs and should be budget neutral for the agency.

Ann Williamson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Human Services
Aging and Adult Services
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Julene Robbins at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at [e-mail]
• Nels Holmgren at the above address, by phone at 801-538-3921, by FAX at 801-538-4395, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/17/2017

This rule may become effective on:

07/24/2017

Authorized by:

Nels Holmgren, Director

RULE TEXT

R510. Human Services, Aging and Adult Services.

R510-302. Adult Protective Services.

R510-302-1. Purpose.

This rule clarifies the responsibilities of Adult Protective Services.

 

R510-302-2. Authority.

This rule is authorized by Section 62A-3-302.

 

R510-302-3. Principles.

(1) Adult Protective Services shall respect the lifestyle that is knowingly and voluntarily chosen by the vulnerable adult.

(2) A vulnerable adult with capacity to consent has the right to self-determination.

(3) All services provided are voluntary unless court ordered.

(4) All services provided should be the least restrictive possible.

(5) All services provided shall be community-based unless community-based services are unavailable.

(6) Adult Protective Services shall encourage a vulnerable adult's family and community to take responsibility for providing necessary services.

(7) Adult Protective Services shall coordinate and cooperate with other agencies to protect vulnerable adults.

(8) Adult Protective Services shall treat vulnerable adults and others in a courteous, dignified and professional manner.

 

R510-302-4. Definitions.

(1) All definitions found in Title 62A Chapter 3 are incorporated by reference.

(2) Activities of Daily Living means the ability to: take a full body bath or shower, including transfer in and out of the bath or shower; tend to personal hygiene needs, including care of teeth, dentures, shaving, and hair care; put on, fasten and take off all clothing, and select appropriate attire; walk without supervision or cues, including using a walker or cane; use steps or ramps; use toilet or commode, including transferring on and off toilet, cleansing self, changing pads, and caring for colostomy or catheter in appropriate manner; transfer without supervision or devices in and out of a bed or chair; and the ability to feed oneself, prepare food, drink or use necessary adaptive devices.

(2a) Instrumental Activities of Daily Living (ADL's) means the core life activities of independent living, including using the telephone, managing money, preparing meals, doing housework, remembering to take medications, providing for one's necessities, and obtaining services.

(3) Durable with respect to a power of attorney, means not terminated by the principals incapacity.

([3]4) Conservator means an individual or agency appointed by a court in accordance with Section 75-5-401, et seq.

([4]5) Guardian means an individual or agency appointed by a court in accordance with Section 75-5-303, et seq.

([5]6) Incapacitated Person is as defined in Section 75-1-201(18).

([6]7) Intentionally is as defined in Section 76-2-103(1).

([7]8) Knowingly is as defined in Section 76-2-103(2).

([8]9) Lifestyle Choice means a knowing and voluntary choice to live a certain way, including a non-conventional way, by a person who has capacity to make that choice.

([9]10) Limited Capacity means that an adult person's ability to understand, communicate, make decisions regarding the nature and consequences the person's life or property is limited in one or more, but not all, functional areas, or during identified times of day, due to a mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause.

([10]11) Long-term care facility is as defined in Section 62A-3-202.

(12) Power of Attorney means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.

([11]13) Protective intervention funding means payments made to the vulnerable adult, family, or caregiver or other provider that will alleviate or resolve a protective need.

([12]14) Protective Needs means factors identified by the APS Protective Needs Assessment that pose significant risk for, or are the result of Abuse, Neglect or Exploitation of a vulnerable adult.

([13]15) Protective Needs Assessment means an assessment of a vulnerable adult's impairments and alleged risk factors for Abuse, Neglect or Exploitation that are found to be present in that APS case investigation.

([14]16) Protective Supervision means an APS service offered to reduce or resolve a vulnerable adult's protective need.

([15]17) Recklessly is as defined in Section 76-2-103(3).

([16]18) Respite Care means a time-limited period of relief from care giving responsibilities paid to a respite care provider or individual from Protective Intervention Funds.

([17]19) Service Plan means a document created by the APS caseworker for an approved Short-term Service Case that includes a goal, objectives, methods, and progress reviews to resolve the protective needs identified in an Adult Protective Services investigation, and which implements recommendations of the case review committee.

([18]20) Short-term protective services include but are not limited to crisis intervention, emergency shelter, protective supervision, respite care, supported living services, or short-term intervention funding.

([19]21) Short-Term intervention funding means short-term payments made to the vulnerable adult, family, or caregiver or other provider, during a short-term service case for goods or services other than for Respite Care or Supported Living, that will alleviate or resolve a protective need.

([20]22) Supported Living means short-term payments made to individuals or providers that enable the vulnerable adult to remain in his or her own home or in the home of a relative.

 

R510-302-6. Adult Protective Services Intake Criteria.

(1) Referrals may be submitted to the APS Intake Office in any format from any person who has reason to believe that a vulnerable adult has been abused, neglected, or exploited in the State of Utah.

(2) All referrals shall be evaluated by APS Intake to determine whether APS shall investigate the allegation.

(3) APS shall accept all referrals with allegations of abuse, neglect, or exploitation of a vulnerable adult in the State of Utah except as follows:

(a) when the referral does not involve an allegation that a vulnerable adult may have been or is being abused, neglected or exploited.

(b) when the referral does not identify a current abuse, neglect or exploitation but anticipates that abuse, neglect or exploitation may occur.

(c) when the referral involves a vulnerable adult on an Indian reservation, a written agreement between APS and tribal authorities granting APS authority to investigate must be in effect or the referral shall be forwarded by Intake to federal or tribal authorities.

(d) when the referral involves an alleged incident in a long-term care facility involving an alleged theft or alleged loss of a resident's money and/or personal property, the alleged perpetrator(s) is unknown, and the money and/or personal property has been replaced, returned, or reimbursed by the facility.

(e) when the referral involves an alleged financial scam and/or alleged consumer fraud.

(4) APS shall notify[]:

(a) the Department of Health and the Local Long-term Care Ombudsman when a referral involves a long-term care facility[.],and

(b) the Division of Services for People with Disabilities (DSPD), when the referral involves a person who receives services from DSPD.

(5) APS may submit a referral that involves a Division employee or other potential conflict of interest to the DHS Office of Services Review for review.

 

R510-302-7. Investigation.

(1) The assigned investigator shall initiate the investigation and determine whether:

(a) there is an allegation of abuse, neglect or exploitation;

(b) the alleged victim is a vulnerable adult;

(c) the alleged victim has the capacity to consent;

(d) the alleged victim has a legal guardian or conservator;

(e) an emergency exists; and

(f) the extent of the alleged victim's mental or physical impairment.

(2) The investigator shall make a face-to-face visit with the alleged victim.

(a) The investigator shall seek the consent of the vulnerable adult to provide services if the vulnerable adult has the capacity to consent.

(b) The investigator shall seek the consent of the vulnerable adult's legal guardian to provide services if the vulnerable adult does not have the capacity to consent.

(3) The investigator may not enter the home of a vulnerable adult unless the vulnerable adult, legal guardian, or caretaker consents, except when the investigator has reason to believe exigent circumstances exist to protect the vulnerable adult from imminent harm.

(4) The investigator shall interview the alleged perpetrator(s) unless:

(a) specifically requested not to do so by law enforcement officers in order to avoid impeding an ongoing criminal investigation or proceeding;

(b) interviewing the alleged perpetrator(s) would likely endanger or cause harm to any person;

(c) prior to interviewing the alleged perpetrator(s), the allegation is found to be without merit;

(d) APS is unable to locate the victim;

(e) the alleged victim died before the investigation started;

(f) the alleged perpetrator(s) cannot be located or is unknown after APS has made reasonable efforts to locate and/or identify the alleged perpetrator(s)[; or]

(g) the alleged perpetrator(s) has refused the interview[.], or

(5) When the investigator has reason to believe any hazardous waste or illegal drugs may be located at an investigative site, the investigator will contact law enforcement agencies and not enter the site until the local health department determines it is safe to do so. The law enforcement agencies may be asked:

(a) to assess and secure a vulnerable adult's immediate safety,

(b) facilitate the vulnerable adult's exit from the [lab ]site,

(c) and arrange for emergency transportation to the hospital for decontamination.

(6) The investigator may obtain an administrative subpoena when one of the following circumstances applies[y]:

(a) the vulnerable adult lacks the capacity to consent; or

(b) the vulnerable adult's legal guardian refuses to consent; or

(c) the custodian of the records or items pertinent to an investigation refuses to allow access to those records or items without a subpoena; or

(d) the information sought is necessary to investigate allegations of abuse, neglect or exploitation or to protect the alleged victim.

(7) An administrative subpoena form:

(a) shall include a list that specifically identifies the documents or objects being subpoenaed;

(b) is not valid until signed by the Director or Regional Director.

(8) The investigator shall document all items received as a result of the subpoena.

(9) the investigator shall evaluate all information obtained during the investigation and determine:

(a) whether each allegation of abuse, neglect and exploitation identified during the investigation is supported, inconclusive, or without merit; and

(c) law enforcement shall be contacted to coordinate or assist on an investigation, if the investigation indicates that criminal abuse, neglect or exploitation may have occurred or the safety of the any person is endangered.

(d) if an unmet (protective) need exists:

(i) the investigator may refer the vulnerable adult and the vulnerable adult's legal guardian to available community resources and services to resolve the protective need;

(ii) the investigator or Supervisor may request a review by the Case Review Committee to determine if Short-Term Services may help to resolve the protective need;

(iii) the investigator may make a referral to the Office of[od] Public Guardian;

(iv) the investigator may provide crisis intervention to assist the vulnerable adult in obtaining services or benefits as it relates to the abuse, neglect or exploitation;

(v) the investigator may contact the family of a vulnerable adult who lacks capacity and inform the family that the vulnerable adult requires alternate living arrangements in an environment that is safe and meets the vulnerable adult's protective needs;

(vi) the investigator may provide Protective Intervention Funds at the sole discretion of APS. These funds may be made available to the vulnerable adult, family caregiver or other provider to alleviate or resolve a protective need, and must directly benefit the vulnerable adult;

(vii) the investigator may provide one-time payments for medications, medical treatment, or medical equipment or supplies not covered by insurance or other medical coverage; transportation; minor repairs or modifications; rent; food; or clothing, or other needs that directly benefit the vulnerable adult to alleviate or resolve a protective need; or

(viii) the investigator may provide payments for a service provider or individual for approved Short-term services for Respite care, Supported living, or for short-term intervention funds.

 

R510-302-8 Settlement Agreements.

(1) The Division may enter into a settlement agreement with the person who has received a notification of agency action letter pursuant to 62A-3-311.5.

(2) No settlement agreement shall be enter into once the Supported finding has been upheld by a court of competent jurisdiction.

 

R510-302-9. Eligibility.

(1) There are no income eligibility requirements for an APS investigation of allegations of abuse, neglect, or exploitation.

(2) There are no eligibility requirements in order to receive short-term protective supervision services.

(3) There are no eligibility requirements in order to receive Protective Intervention Funds to resolve a situational crisis or an immediate protective need.

(4) A vulnerable adult shall meet income eligibility requirements in order to receive short-term protective services other than protective supervision services, including respite care, supported living, short-term intervention funding, and other services approved by the APS Director or regional director.

(a) For purposes of eligibility for short-term protective services, "family" includes an adult, the adult's spouse, and their natural children under age 18, who are residing in the same household.

(b) A person living under the care of someone other than their spouse is considered a one-person family.

(c) In determining whether a vulnerable adult meets income eligibility requirements for short-term protective services, family assets shall be disclosed and evaluated.

(i) Family assets include the fair market value of stocks, bonds, certificates of deposit, notes, savings and checking accounts, inheritance, capital gains, or gifts, which can be readily converted to cash.

(ii) A client's income and deductions will be used to determine the client's adjusted gross income to determine the client's eligibility status.

(iii) Monthly gross income includes the total monthly income received by an individual from earnings, military pay, commissions, tips, piece-rate payments, and cash bonuses; net income from self-employment; Social Security Pensions, SSI, Survivor's Benefits, and Permanent Disability Insurance payments; dividends, interest, income from estates or trusts, net rental income or royalties, net income from rental of property, receipts from boarders or lodgers; pensions, annuities; unemployment compensation; strike benefits; worker's compensation; alimony, child support, money received as specified in a divorce or support decree; Veterans' pensions or subsistence allowances; and other regular (three out of six months) financial assistance.

(iv) Monthly gross income does not include per capita payments to or funds held in trust for any individual in satisfaction of a judgment of the Indian Claims Commission or the Court of Claims; net proceeds received from the sale of a primary residence or an automobile; money borrowed; insurance payments in excess of incurred costs that must be paid from the settlement; the value of the coupon allotment under the Food Stamp Act; the value of USDA donated foods; the value of supplemental food assistance under the Child Nutrition Act of 1966 and the special food service program for children under the National School Lunch Act; any payment received under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; earnings of a child (under 18 years of age) residing in the home; payments for energy assistance and weatherization HEAT program; housing subsidies paid by the Federal government; payments or grants received due to natural disaster; educational loans, grants, or scholarships to any undergraduate student for educational purposes that is made or insured by the U.S. Commissioner of Education (BEOG; SEOG; NDSL; Guaranteed Student Loans; SSIG; and PELL Grants); payments to participate in a service learning program, such as College Work-Study or University Year for Action; and that portion of any other loan, grant, or scholarship which is conditioned upon school attendance, actually used for tuition, books, fees, equipment, special clothing needs, transportation to and from the school, and the child care services necessary for school attendance.

(v) The expenses that shall be deducted in determining adjusted gross income are limited to medical expenses (including Medicaid spend-down and insurance); storage expenses; child support paid, including money paid for house payments, rent, etc. as specified in a divorce or support decree; the dollar amount of first mortgage/rental payment over 25% of monthly countable income (not counted for Foster Care); and fees paid for other programs and protective services.

(vi) The sum of all family assets shall be divided by the number of family members, and if that amount exceeds $4,000 per family member, then the value over $4,000 shall be prorated over twelve months, and the resulting amount shall be added to the monthly countable income.

(vii) Eligibility status must be verified annually and within 30 days of any family member's increase in assets.

(viii) A client's adjusted gross income for income tax purposes is not the same as the adjusted gross income for service eligibility purposes.

(ix) All family assets and expenses shall be supported with current bank records, check stubs, and other verifiable records. Documentation must clearly indicate the name of the applicable family member.

 

R510-302-10. Protective Need Intervention.

(1) APS may petition the court for an emergency protective services order as outlined in 62A-3-320

( 2[1]) An Investigator may request Protective Intervention Funding for an emergency shelter placement to alleviate the vulnerable adult's protective need. Emergency shelter placements may be made for up to 30 days within a twelve-month period for a vulnerable adult who has been abused, neglected, or exploited only if:

(a) the vulnerable adult's circumstances require immediate alternate living arrangements in a safe environment;

(b) the vulnerable adult or legal guardian consents to the emergency shelter placement or a court order authorizes the placement;

(c) the vulnerable adult does not meet the eligibility requirements for shelter under the Family Violence program; and

(d) the emergency shelter has all required current licenses and certifications.

 

R510-302-11. Short-Term Intervention.

(1) Short-term protective services may only be provided to a vulnerable adult who is the victim of abuse, neglect or exploitation, and in accordance with the terms of a service plan consented to and signed by the vulnerable adult or the vulnerable adult's legal guardian, or pursuant to a court order. An updated service plan shall be signed at each case review.

(2) A short-term services Case Review Committee shall monitor and review short-term services. The Case Review Committee:

(a) shall consist of the primary worker, supervisor or designee, and two other region workers. The Committee may include other APS and community or agency individuals when determined necessary by the Case Review Committee.

(b) shall oversee the progress made towards resolution of the protective need.

(c) may recommend that short-term services are initiated, extended, or terminated.

(d) may recommend community referrals or alternative actions.

(3) The Case Supervisor may approve or deny Short-Term Services recommended by the Case Review Committee.

(4) Short-Term Services may only be provided under the following conditions:

(a) Short-term services are voluntary and shall not be implemented without the written consent of the vulnerable adult or the vulnerable adult's legal representative.

(b) Every short-term service case shall include a protective supervision service.

(c) Protective Intervention funds for Short-term services shall not be disbursed without the approval of the APS supervisor or regional director.

(d) Respite Care funds may not be used for caring for other members of the family, performing extensive household tasks, or transportation.

(e) Respite Care may be provided in the vulnerable adult's home, a caregiver's home, or in a licensed facility.

(f) Supported Living Payments may be made to providers to enable the vulnerable adult to remain in his own home or in the home of a relative, and may include short-term supervision, transportation, assistance with shopping, training or assistance with activities of daily living.

(g) Payments for Short-Term Services may not be made until a case has been approved by the Case Review Committee and Services voluntarily agreed to in writing by the vulnerable adult, his or her guardian, or approved by court order.

 

R510-302-12. Protective Payee Services.

(1) Adult Protective Services shall not provide payee services.

 

R510-302-13. Termination of Short-Term Protective Services.

(1) A vulnerable adult has no entitlement or right to short-term protective services from APS.

(2) Protective Services may be terminated by the vulnerable adult or APS at any time, except if there is a Court order in place.

(3) Protective Services shall be terminated when:

(a) the vulnerable adult is no longer in immediate danger of abuse, neglect or exploitation;

(b) a vulnerable adult who voluntarily accepted services requests that those services be terminated;

(c) recommended by the Case Review Committee;

(d) the court terminates an order requiring APS to provide services;

(e) the vulnerable adult is receiving protective services from other persons or agencies;

(f) the vulnerable adult's behavior is abusive or violent and constitutes a threat;

(g) the vulnerable adult no longer meets the eligibility requirements for services;

(h) the vulnerable adult refuses to comply with the service plan;

(i) there is insufficient funding to pay for the service;

(j) the vulnerable adult moves out of State; or

(k) the vulnerable adult dies. APS shall complete a Deceased Client Report form in accordance with DHS policy 05-02.

(4) When APS terminates Short-Term protective services, a letter shall be sent to the vulnerable adult stating the case is going to be terminated and the reason for termination.

(a) The letter shall state that termination becomes effective 10 days from the date the letter was sent unless the vulnerable adult requests an administrative review of the reason for the termination and to decide if the services should be reinstated or alternative services may be available.

 

KEY: vulnerable adults, adult protective services investigation, shelter care facilities, short-term services

Date of Enactment or Last Substantive Amendment: [December 21, 2012]2017

Notice of Continuation: July 11, 2012

Authorizing, and Implemented or Interpreted Law: 62A-3-301 et seq.

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