HOUSE BILL NO. 3379 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE DOLAN.
6155H.01I JOSEPH ENGLER, Chief Clerk
AN ACT To repeal sections 192.2200, 192.2400, 192.2475, 192.2490, 192.2495, 192.2500, 197.312, 198.006, 198.018, 198.070, 198.073, 198.640, and 208.912, RSMo, and to enact in lieu thereof sixteen new sections relating to abuse or neglect of vulnerable persons, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 192.2200, 192.2400, 192.2475, 192.2490, 192.2495, 192.2500, 2 197.312, 198.006, 198.018, 198.070, 198.073, 198.640, and 208.912, RSMo, are repealed and 3 sixteen new sections enacted in lieu thereof, to be known as sections 192.2200, 192.2256, 4 192.2257, 192.2400, 192.2475, 192.2490, 192.2495, 192.2500, 197.312, 197.550, 198.006, 5 198.018, 198.070, 198.073, 198.640, and 208.912, to read as follows: 192.2200. As used in sections 192.2200 to [192.2260] 192.2275, unless the context 2 clearly indicates otherwise, the following terms mean: 3 (1) "Abuse", the infliction of physical, sexual, or emotional injury or harm including, 4 but not limited to, financial exploitation by any person, firm, or corporation; 5 (2) "Adult", an individual over the age of eighteen; 6 (3) "Adult day care program", a group program designed to provide care and 7 supervision to meet the needs of functionally impaired adults for periods of less than twenty- 8 four hours but more than two hours per day in a place other than the adult's own home; 9 (4) "Adult day care provider", the person, corporation, partnership, association or 10 organization legally responsible for the overall operation of the adult day care program; 11 (5) "Department", the department of health and senior services;
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 3379 2
12 (6) "Financial exploitation", when a person knowingly obtains control over the 13 property of a participant with the intent to deprive the participant of the use, benefit, or 14 possession of his or her property, thereby benefiting the offender or detrimentally 15 affecting the participant by means of: 16 (a) Deceit; 17 (b) Coercion; 18 (c) Creating or confirming another person's impression that is false and that the 19 offender does not believe to be true; 20 (d) Failing to correct a false impression that the offender previously has created 21 or confirmed; 22 (e) Preventing another person from acquiring information pertinent to the 23 disposition of the property involved; 24 (f) Selling or otherwise transferring or encumbering property or failing to 25 disclose a lien, adverse claim, or other legal impediment to the enjoyment of the 26 property regardless of whether such impediment is valid or is a matter of official record; 27 (g) Promising performance that the offender does not intend to perform or 28 knows will not be performed. Failure to perform by itself is not sufficient evidence to 29 prove that the offender did not intend to perform; or 30 (h) Undue influence; 31 (7) "Functionally impaired adult", an adult who by reason of age or infirmity requires 32 care and supervision; 33 [(7)] (8) "License", the document issued by the department in accordance with the 34 provisions of sections 192.2200 to [192.2260] 192.2275 to an adult day care program which 35 authorizes the adult day care provider to operate the program in accordance with the 36 provisions of sections 192.2200 to [192.2260] 192.2275 and the applicable rules promulgated 37 pursuant thereto; 38 [(8)] (9) "Neglect", the failure to provide, by those responsible for the care, 39 custody, and control of a participant in an adult day care program, the services that are 40 reasonable and necessary to maintain the physical and mental health of the participant, 41 when such failure presents either an imminent danger to the health, safety, or welfare of 42 the participant or a substantial probability that death or serious physical harm would 43 result; 44 (10) "Operator", any person licensed or required to be licensed under the provisions 45 of sections 192.2200 to [192.2260] 192.2275 in order to establish, conduct, or maintain an 46 adult day care program; 47 [(9)] (11) "Participant", a functionally impaired adult who is enrolled in an adult day 48 care program; HB 3379 3
49 [(10)] (12) "Person", any individual, firm, corporation, partnership, association, 50 agency, or an incorporated or unincorporated organization regardless of the name used; 51 [(11)] (13) "Related", any of the following by blood, marriage or adoption: parent, 52 child, grandchild, brother, sister, half-brother, half-sister, stepparent, uncle, aunt, niece, 53 nephew, or first cousin; 54 [(12)] (14) "Staff participant ratio", the number of adult care staff required by the 55 department in relation to the number of adults being cared for by such staff; 56 [(13)] (15) "Substantial noncompliance", any violation of a class I or class II standard 57 or twenty or more violations of class III standards; 58 (16) "Undue influence", the use of influence by someone who exercises authority 59 over a participant in order to take unfair advantage of that participant's vulnerable 60 state of mind, neediness, pain, or agony. The term "undue influence" includes, but is 61 not limited to, the improper or fraudulent use of a power of attorney, guardianship, 62 conservatorship, or other fiduciary authority. 192.2256. 1. When any adult day care worker; advanced emergency medical 2 technician; bank personnel; chiropractor; Christian Science practitioner; coroner; 3 dentist; embalmer; emergency medical technician; employee of the department of social 4 services, mental health, or health and senior services; employee of a local area agency on 5 aging or an organized area agency on aging program; firefighter; first responder, as 6 defined in section 192.2405; funeral director; home health agency or home health 7 agency employee; hospital and clinic personnel engaged in examination, care, or 8 treatment of persons; in-home services owner, provider, operator, or employee; law 9 enforcement officer; long-term care facility administrator or employee; medical 10 examiner; medical resident or intern; mental health professional; minister; nurse; 11 nurse practitioner; optometrist; other health practitioner; paramedic; peace officer; 12 pharmacist; physical therapist; physician; physician assistant; podiatrist; probation or 13 parole officer; psychologist; social worker; or other person with the care of a person 14 sixty years of age or older or an eligible adult, as defined in section 192.2400, has 15 reasonable cause to believe that a participant of an adult day care program has been 16 abused or neglected, he or she shall immediately report or cause a report to be made to 17 the department. 18 2. The report shall contain the name and address of the adult day care program, 19 the name of the participant, information regarding the nature of the abuse or neglect, 20 the name of the complainant, and any other information that might be helpful in an 21 investigation. 22 3. Any person required in subsection 1 of this section to report or cause a report 23 to be made to the department who knowingly fails to make a report within a reasonable HB 3379 4
24 time after the act of abuse or neglect as required in such subsection is guilty of a class A 25 misdemeanor. 26 4. In addition to the penalties imposed by this section, any adult day care 27 provider who knowingly conceals any act of abuse or neglect resulting in death or 28 serious physical injury, as defined in section 556.061, is guilty of a class E felony. 29 5. In addition to those persons required to report under subsection 1 of this 30 section, any other person having reasonable cause to believe that a participant has been 31 abused or neglected may report such information to the department. 32 6. Upon receipt of a report, the department shall initiate an investigation within 33 twenty-four hours and, as soon as possible during the course of the investigation, shall 34 notify the participant's next of kin or responsible party of the report and the 35 investigation and further notify the person whether the report was substantiated or 36 unsubstantiated unless such person is the alleged perpetrator of the abuse or neglect. As 37 provided in section 192.2425, substantiated reports of elder abuse shall be promptly 38 reported by the department to the appropriate law enforcement agency and prosecutor. 39 7. Reports, including investigation records, shall be confidential as provided 40 under section 192.2500. 41 8. Anyone, except any person who has abused or neglected a participant in an 42 adult day care program, who makes a report under this section or who testifies in any 43 administrative or judicial proceeding arising from the report shall be immune from any 44 civil or criminal liability for making such a report or for testifying except for liability for 45 perjury unless such person acted negligently, recklessly, in bad faith, or with malicious 46 purpose. It is a crime under section 565.189 for any person to knowingly file a false 47 report of elder abuse or neglect. 48 9. Within five working days after a report required to be made under this section 49 is received, the person making the report shall be notified in writing of its receipt and of 50 the initiation of the investigation. 51 10. No person who directs or exercises any authority in an adult day care 52 program shall evict, harass, dismiss, or retaliate against a participant or employee 53 because such participant or employee or any member of such participant's family has 54 made a report of any violation or suspected violation of laws, ordinances, or regulations 55 applying to the adult day care program that the participant, the participant's family, or 56 the employee has reasonable cause to believe has been committed or has occurred. 57 Through the existing department information and referral telephone contact line, 58 participants, families of participants, and employees of an adult day care program shall 59 be able to obtain information about their rights, protections, and options in any case of 60 harassment, dismissal, or retaliation due to a report being made under this section. HB 3379 5
61 11. Any person who abuses or neglects a participant of an adult day care 62 program is subject to criminal prosecution under section 565.184. 63 12. The department shall maintain the employee disqualification list and place 64 on the employee disqualification list the names of any persons who are or have been 65 employed in any adult day care program and who have been finally determined by the 66 department under section 192.2490 to have knowingly or recklessly abused or neglected 67 a participant. For purposes of this section only, "knowingly" and "recklessly" shall 68 have the meanings that are ascribed to them in this section. A person acts "knowingly" 69 with respect to the person's conduct when a reasonable person should be aware of the 70 result caused by his or her conduct. A person acts "recklessly" when the person 71 consciously disregards a substantial and unjustifiable risk that the person's conduct will 72 result in serious physical injury and such disregard constitutes a gross deviation from 73 the standard of care that a reasonable person would exercise in the situation. 74 13. The timely self-reporting of incidents to the central registry by an adult day 75 care program shall continue to be investigated in accordance with department policy 76 and shall not be counted or reported by the department as a hotline call but rather a 77 self-reported incident. If the self-reported incident results in a regulatory violation, 78 such incident shall be reported as a substantiated report. 192.2257. 1. Any person having reasonable cause to believe that a 2 misappropriation of a participant's property or funds has occurred shall report such 3 information to the department. 4 2. For each report, the department shall attempt to obtain the names and 5 addresses of the adult day care program, the employee of the adult day care program, 6 and the participant of the adult day care program; information regarding the nature of 7 the misappropriation; the name of the complainant; and any other information that 8 might be helpful in an investigation. 9 3. Any adult day care program or adult day care program employee who puts to 10 his or her own use or the use of the adult day care program or otherwise diverts from a 11 participant's use any personal property or funds of the participant is guilty of a class A 12 misdemeanor. 13 4. Upon receipt of a report, the department shall initiate an investigation and 14 report information gained from such investigation to appropriate law enforcement 15 authorities. 16 5. If the investigation indicates probable misappropriation of property or funds 17 of an adult day care program participant, the investigator shall refer the complaint 18 together with the investigator's report to the department director or the director's 19 designee for appropriate action. HB 3379 6
20 6. Reports, including investigation records, shall be confidential as provided 21 under section 192.2500. 22 7. Anyone, except any person participating in or benefiting from the 23 misappropriation of funds, who makes a report under this section or who testifies in 24 any administrative or judicial proceeding arising from the report shall be immune from 25 any civil or criminal liability for making such a report or for testifying except for 26 liability for perjury unless such person acted negligently, recklessly, in bad faith, or with 27 malicious purpose. 28 8. Within five working days after a report required to be made under this section 29 is received, the person making the report shall be notified in writing of its receipt and of 30 the initiation of the investigation. 31 9. No person who directs or exercises any authority in an adult day care 32 program shall harass, dismiss, or retaliate against an adult day care program 33 participant or employee because such participant or employee or any member of 34 such participant's family has made a report of any violation or suspected violation of 35 laws, ordinances, or regulations applying to the adult day care program or any adult 36 day care program employee that the participant, the participant's family, or the 37 employee has reasonable cause to believe has been committed or has occurred. 38 10. The department shall maintain the employee disqualification list and place 39 on the employee disqualification list the names of any persons who are or have been 40 employed by an adult day care program, who have been finally determined by the 41 department under section 192.2490 to have misappropriated any property or funds of 42 an adult day care program participant, and who came to be known to the participant 43 directly or indirectly while employed by an adult day care program. 192.2400. As used in sections 192.2400 to 192.2505, the following terms mean: 2 (1) "Abuse", the infliction of physical, sexual, or emotional injury or harm including 3 financial exploitation by any person, firm, or corporation and bullying; 4 (2) "Bullying", intimidation or harassment that causes a reasonable person to fear for 5 his or her physical safety or property and may consist of physical actions including gestures; 6 cyberbullying; oral, electronic, or written communication; and any threat of retaliation for 7 reporting of such acts; 8 (3) "Court", the circuit court; 9 (4) "Department", the department of health and senior services; 10 (5) "Director", director of the department of health and senior services or his or her 11 designees; 12 (6) "Eligible adult", a person sixty years of age or older who is unable to protect his or 13 her own interests or adequately perform or obtain services which are necessary to meet his or HB 3379 7
14 her essential human needs or an adult with a disability, as defined in section 192.2005, 15 between the ages of eighteen and fifty-nine who is unable to protect his or her own interests 16 or adequately perform or obtain services which are necessary to meet his or her essential 17 human needs; 18 (7) "Financial exploitation", when a person knowingly obtains control over the 19 property of an eligible adult with the intent to deprive the eligible adult of the use, 20 benefit, or possession of his or her property, thereby benefiting the offender or 21 detrimentally affecting the eligible adult by means of: 22 (a) Deceit; 23 (b) Coercion; 24 (c) Creating or confirming another person's impression that is false and that the 25 offender does not believe to be true; 26 (d) Failing to correct a false impression that the offender previously has created 27 or confirmed; 28 (e) Preventing another person from acquiring information pertinent to the 29 disposition of the property involved; 30 (f) Selling or otherwise transferring or encumbering property or failing to 31 disclose a lien, adverse claim, or other legal impediment to the enjoyment of the 32 property regardless of whether such impediment is valid or is a matter of official record; 33 (g) Promising performance that the offender does not intend to perform or 34 knows will not be performed. Failure to perform by itself is not sufficient evidence to 35 prove that the offender did not intend to perform; or 36 (h) Undue influence; 37 (8) "Home health agency", the same meaning as such term is defined in section 38 197.400; 39 [(8)] (9) "Home health agency employee", a person employed by a home health 40 agency; 41 [(9)] (10) "Home health patient", an eligible adult who is receiving services through 42 any home health agency; 43 [(10)] (11) "In-home services client", an eligible adult who is receiving services in his 44 or her private residence through any in-home services provider agency; 45 [(11)] (12) "In-home services employee", a person employed by an in-home services 46 provider agency; 47 [(12)] (13) "In-home services provider agency", a business entity under contract with 48 the depart