CHAPTER 50-25.2 VULNERABLE ADULT PROTECTION SERVICES 50-25.2-01. Definitions

As used in this chapter, unless the context otherwise requires: 1

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"Abuse" means any willful act or omission of a caregiver or any other person which results in physical injury, mental anguish, unreasonable confinement, sexual abuse or exploitation, or financial exploitation to or of a vulnerable adult

"Adult" includes a minor emancipated by marriage

"Adult protective services" means remedial, social, legal, health, mental health, and referral services provided for the prevention, correction, or discontinuance of abuse or neglect which are necessary and appropriate under the circumstances to protect an abused or neglected vulnerable adult, ensure that the least restrictive alternative is provided, prevent further abuse or neglect, and promote self-care and independent living. The term includes the following services provided by the department or the department's designee: a. Receiving, evaluating, and assessing reports of alleged abuse or neglect; b

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Arranging for and coordinating the provision of essential services; Providing case management and counseling for the purposes of planning and providing social and other services needed by vulnerable adults; Arranging for and coordinating the provision of other services, including financial management or assistance, legal assistance, and the services of domestic violence programs; e. Monitoring the delivery of services to vulnerable adults and making progress d

assessments; and Arranging for or providing, and coordinating, other services consistent with this chapter

"Caregiver" means any person who has assumed the legal responsibility or a contractual obligation for the care of a vulnerable adult or has voluntarily assumed responsibility for the care of a vulnerable adult. The term includes a facility operated by any public or private agency, organization, or institution which provides services to, and has assumed responsibility for the care of, a vulnerable adult

"Department" means the department of human services

"Essential services" means those services necessary to maintain and safeguard the physical and mental health of a vulnerable adult which include sufficient and appropriate food and clothing, temperate and sanitary shelter, treatment for mental or physical needs, appropriate treatment for medical needs as determined by a physician or other health care provider, and proper supervision

"Financial exploitation" means use or receipt of services provided by the vulnerable adult without just compensation, the taking, acceptance, misappropriation, or misuse of property or resources of a vulnerable adult by means of undue influence, breach of a fiduciary relationship, deception, harassment, criminal coercion, theft, or other unlawful or improper means

"Least restrictive alternative" means adult protective services provided in a manner no more restrictive of a vulnerable adult's liberty and no more intrusive than necessary to achieve and ensure the provision of essential services

"Living independently" includes using the telephone, shopping, preparing food, housekeeping, and administering medications

"Mental anguish" means psychological or emotional damage that requires medical treatment or care or is characterized by behavioral change or physical symptoms

"Neglect" means the failure of a caregiver to provide essential services necessary to maintain the physical and mental health of a vulnerable adult, or the inability or lack of desire of the vulnerable adult to provide essential services necessary to maintain and safeguard the vulnerable adult's own physical and mental health

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"Physical injury" means damage to bodily tissue caused by nontherapeutic conduct, which includes fractures, bruises, lacerations, internal injuries, dislocations, physical pain, illness, or impairment of physical function

"Self-care" includes maintaining personal hygiene, eating, and dressing

"Sexual abuse or exploitation" includes those sex offenses defined in sections 12.1-20-02, 12.1-20-03, 12.1-20-04, 12.1-20-05, 12.1-20-06, 12.1-20-07, and 12.1-20-11

"Substantial functional impairment" means a substantial incapability, because of physical limitations, of living independently or providing self-care as determined through observation, diagnosis, evaluation, or assessment

"Substantial mental impairment" means a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, or ability to live independently or provide self-care as revealed by observation, diagnosis, evaluation, or assessment

"Vulnerable adult" means an adult who has a substantial mental or functional impairment

"Willfully" means willfully as defined in section 12.1-02-02

50-25.2-02. Adult protective services program - Rules

The department shall develop, administer, and cause to be implemented a program of protective services for vulnerable adults consistent with this chapter. In developing and administering the program, the department, within the limits of legislative appropriation, shall allocate and distribute funds for the purpose of providing adult protective services. All law enforcement agencies, courts of competent jurisdiction, and appropriate state and local agencies shall cooperate in the implementation and enforcement of this chapter. The department may adopt rules in accordance with chapter 28-32 for the purpose of implementing the provisions of this chapter

50-25.2-03. Reporting of abuse or neglect - Method of reporting

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Any medical or mental health professional or personnel, law enforcement officer, firefighter, member of the clergy, or caregiver having knowledge a vulnerable adult has been subjected to abuse or neglect, or who observes a vulnerable adult being subjected to conditions or circumstances that reasonably would result in abuse or neglect, shall report the information to the department, or the department's designee, or to an appropriate law enforcement agency if the knowledge is derived from information received by that individual in that individual's official or professional capacity. A member of the clergy, however, is not required to report the information if the knowledge is derived from information received in the capacity of spiritual adviser. An individual in the position of a long-term care ombudsman is not a mandated reporter of suspected abuse or neglect. For purposes of this subsection, "medical or mental health professional or personnel" means a professional or personnel providing health care or services to a vulnerable adult, on a full-time or part-time basis, on an individual basis or at the request of a caregiver, and includes a medical examiner, coroner, dentist, dental hygienist, optometrist, pharmacist, chiropractor, podiatrist, physical therapist, occupational therapist, tier 1 through tier 4 mental health professional as defined under section 25-01-01, emergency medical services personnel, hospital personnel, nursing home personnel, congregate care personnel, or any other person providing medical and mental health services to a vulnerable adult

A report, if required by section 25-01.3-04, satisfies all reporting requirements of this chapter

Any person not required to report under subsection 1 who has reasonable cause to believe that a vulnerable adult has been subjected to abuse or neglect, or who observes a vulnerable adult being subjected to conditions or circumstances that reasonably would result in abuse or neglect, may report the information to the department or the department's designee or to an appropriate law enforcement 2

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agency. A law enforcement agency receiving a report under this section shall immediately notify the department or the department's designee of the report

An individual required to report under subsection 1 shall make an oral or written report and a person voluntarily reporting under subsection 2 may make an oral or written report, as soon as possible. To the extent reasonably possible, a person who makes a report under this section shall include in the report: a

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The name, age, and residence address of the alleged vulnerable adult; The name and residence address of the caregiver, if any; The nature and extent of the alleged abuse or neglect or the conditions and circumstances that would reasonably be expected to result in abuse or neglect; Any evidence of previous abuse or neglect, including the nature and extent of the abuse or neglect; and Any other information in the opinion of the person making the report may be helpful in establishing the cause of the alleged abuse or neglect and the identity of the individual responsible for the alleged abuse or neglect

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50-25.2-04. Referral of complaints concerning long-term care facilities

Any report received by the department or the department's designee under section 50-25.2-03 complaining of any administrative action, as defined in section 50-10.1-01, that may adversely affect or may have adversely affected the health, safety, welfare, or personal or civil rights of a resident in a long-term care facility, as defined in section 50-10.1-01, or an individual who was discharged from a long-term care facility within one month of the complaint, must be referred to the state long-term care ombudsman

50-25.2-05. Evaluation and assessment - Participation by law enforcement agencies - Entry

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The department or the department's designee shall immediately evaluate and assess any report received by the department or the department's designee under section 50-25.2-03, including the residence of the alleged vulnerable adult and the circumstances surrounding the report. For the purpose of evaluating a report or providing other adult protective services, the department or the department's designee may: a

Interview the alleged vulnerable adult, with or without notice to the caregiver or any other person, and interview the caregiver and any other individual who may have knowledge of the circumstances surrounding the report; Enter any premises in which the alleged vulnerable adult is an occupant, with the consent of the alleged vulnerable adult or the caregiver; b

c. Have access to all records of the vulnerable adult: (1) (2) (3) If the vulnerable adult, or the caregiver or legal representative of the vulnerable adult, has authorized the department or the department's designee to have access; If the vulnerable adult, because of a substantial functional or mental impairment, is unable to authorize the department or the department's designee to have such access, does not have a legal guardian or other legal representative, and is an individual with respect to whom a report was received by the department or the department's designee; or If the vulnerable adult, because of a substantial functional or mental impairment, is unable to authorize the department or the department's designee to have such access, the legal guardian or other legal representative is alleged to cause the circumstances surrounding the report, and is an individual with respect to whom a report was received by the department or the department's designee; d. Coordinate the assessment and the provision of other adult protective services with other state or local agencies, departments, or institutions, including the agency of the protection and advocacy project, or private agencies, Page No. 3 organizations, and professionals providing services necessary or advisable for the vulnerable adult; and e. Request records, except as prohibited under title 42, Code of Federal Regulations, part 2, from a medical, dental, or mental health professional, hospital, medical or mental health facility, or health care clinic regarding a vulnerable adult with respect to whom a report was received by the department or the department's designee. A medical, dental, or mental health professional, hospital, medical or mental health facility, or health care clinic shall disclose to the department or the department's designee, upon request, the records of a patient or client which are relevant to a vulnerable adult evaluation, assessment or other adult protective services. The department, or the department's designee, shall limit the request for records to the minimum amount of records necessary to enable a determination to be made or to support other adult protective services

If a report alleges, or circumstances surrounding the report indicate, a violation of a criminal statute or an imminent danger of serious physical injury or death of the vulnerable adult, the department or the department's designee shall notify the appropriate law enforcement agency. In such a case, the law enforcement agency may investigate the allegations in the report, take immediate steps if necessary to protect the vulnerable adult, and institute legal proceedings if appropriate. The law enforcement agency shall notify the department or the department's designee if such action is taken. This section does not limit the responsibilities of law enforcement agencies to enforce the laws of this state or preclude law enforcement agencies from investigating, as appropriate, any alleged criminal conduct. In all other cases of alleged abuse or neglect, the department or the department's designee may request assistance in an evaluation or the provision of other adult protective services from an appropriate law enforcement agency if necessary under the circumstances

If the alleged vulnerable adult, or the caregiver, does not consent to an evaluation or investigation, a search warrant may be issued by a magistrate pursuant to law upon a showing of probable cause to believe that abuse or neglect has occurred. A law enforcement officer may make a reasonable entry of the premises without a search warrant or consent of the alleged vulnerable adult or caregiver for the purpose of rendering assistance if the officer has probable cause to believe that the delay of entry would cause the alleged vulnerable adult to be in imminent danger of serious physical injury or death

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50-25.2-06. Provision of adult protective services

If the department or the department's designee determines that a vulnerable adult demonstrates a need for adult protective services, the department or the department's designee shall provide, or arrange for the provision of, adult protective services, provided the vulnerable adult consents to and accepts the services

50-25.2-07. Refusal or inability to accept adult protective services - Department alternatives

If a vulnerable adult who is subject to abuse or neglect is unable to consent and accept, or the caregiver refuses, adult protective services determined by the department or the department's designee to be necessary under this chapter, the department or the department's designee may pursue any administrative, legal, and other remedies authorized by law which are necessary and appropriate under the circumstances to protect the vulnerable adult and prevent further abuse or neglect. The state's attorney of the county in which the vulnerable adult resides or is located shall assist the department or the department's designee, upon request, in pursuing an appropriate remedy. Available remedies include seeking: 1

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The appointment of a guardian under chapter 30.1-28 or a conservator under chapter 30.1-29; A restraining order or other court order necessary under the circumstances; Page No. 4 3

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The removal of an abusive or neglectful guardian or conservator and appointment of a suitable person as guardian or conservator, pursuant to sections 30.1-28-07 and 30.1-29-15; The provision of appropriate treatment under chapter 25-03.1; The criminal prosecution of the individual responsible for the abuse or neglect; and Any other available administrative, legal, or other remedies on behalf of the vulnerable adult

50-25.2-08. Cost of adult protective services

The vulnerable adult is responsible for the costs of providing adult protective services, except the receipt, evaluation, and assessment of reports of suspected abuse or neglect pursuant to subdivision a of subsection 3 of section 50-25.2-01, if the department or the department's designee determines, based on standards set by the department, that the vulnerable adult is financially capable of paying for the protective services received either through the vulnerable adult's own income or resources or other programs for which the vulnerable adult may be eligible. The department or the department's designee is not responsible for the cost of providing adult protective services unless the provision of the services is specifically provided by law and funding exists to provide the services

50-25.2-09. Immunity from liability

The following persons are immune from any civil or criminal liability that otherwise might result from the person's actions taken pursuant to this chapter: 1

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Any person, other than an alleged perpetrator, making a report or participating in an investigation, evaluation, or assessment under this chapter if the person is acting in good faith

Any person, employed by the department or the department's designee or a law enforcement agency, conducting or supervising an investigation, evaluation, or assessment or implementing or enforcing the provisions of this chapter if the person is acting in good faith and exercising due care

50-25.2-10. Penalty for failure to report - Penalty and civil liability for false reports

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Any person required to report under subsection 1 of section 50-25.2-03 who willfully fails to do so is guilty of an infraction

Any person who willfully makes a false report, or provides false information which causes the report to be made, is guilty of a class B misdemeanor unless the false report is made to a law enforcement official, in which case the person who causes the false report to be made is guilty of a class A misdemeanor

A person who willfully makes a false report, or provides false information that causes a report to be made, is liable in a civil action for all damages suffered by the person reported

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50-25.2-11. Retaliation prohibited - Presumption - Penalty

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An employer who imposes any form of discipline or retaliation against an employee solely because the employee reported in good faith having knowledge of or reasonable cause to suspect that a vulnerable adult is or has been abused or neglected, or because the employee is a vulnerable adult with respect to whom a report was made, is guilty of a class B misdemeanor

The employer of a person permitted to report pursuant to section 50-25.2-12 who retaliates against the person because of a report is liable to that person in a civil action for all damages

A rebuttable presumption that retaliation has occurred arises when an adverse action is taken within ninety days of the report. An adverse action includes: a

The discharge from or termination of employment; 2

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The demotion, negative work performance evaluation, reduction of hours worked, reduction of benefits or work privileges, or reduction in remuneration for services of the employee; or The restriction or prohibition of access by the employee to any place of employment or persons affiliated with the place of employment

50-25.2-11.1. Civil remedy for financial exploitation - Damages - Commencement of A vulnerable adult who has been financially exploited has a cause of action against any perpetrator and may recover damages for that exploitation. The action may be brought in a court of competent jurisdiction by: a

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The vulnerable adult; The vulnerable adult's guardian or conservator; Any person acting on behalf of the vulnerable adult with the consent of the vulnerable adult; or The personal representative of the estate of a deceased victim

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An action for financial exploitation of a vulnerable adult must be proven by clear and convincing evidence. If financial exploitation is proven, the court shall award to the plaintiff actual damages, reasonable attorney's fees and costs, and reasonable fees for the services of a guardian ad litem if appointed by the court

If the financial exploitation of the vulnerable adult by the perpetrator involved oppression, fraud, deception, or actual malice, the court may award exemplary damages in accordance with section 32-03.2-11

An action for damages for financial exploitation of a vulnerable adult must be commenced within six years after the plaintiff discovers or, through exercise of reasonable diligence, should have discovered the facts constituting the financial exploitation

50-25.2-12. Confidentiality of records - Authorized disclosures

All reports made under this chapter and all records and information obtained or generated as a result of the reports are confidential, but must be made available to: A physician who examines a vulnerable adult whom the physician reasonably suspects may have been subject to abuse or neglect if the identity of individuals reporting under section 50-25.2-03 is protected

Authorized staff of the department or the department's designee, law enforcement agencies, and other agencies investigating, evaluating, or assessing the report or providing adult protective services

A vulnerable adult who is the subject of a report if the identity of individuals reporting under section 50-25.2-03 is protected

Public officials, and their authorized agents, who require the information in connection with the discharge of their official duties

A court when it determines that the information is necessary for determination of an issue before the court

A person engaged in a bona fide research or auditing purpose if no information identifying the subjects of a report is made available to the researcher or auditor

A guardian or legal representative of the vulnerable adult who is the subject of a report if the identity of individuals reporting under section 50-25.2-03 is protected and the guardian or legal representative is not suspected of abusing or neglecting the vulnerable adult

50-25.2-13. Information, education, and training programs

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The department shall conduct a public information and education program. The elements and goals of the program must include: Page No. 6 2

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Informing the public regarding the laws governing the abuse or neglect of vulnerable adults, the voluntary and mandatory reporting authorized by this chapter, and the need for and availability of adult protective services

Providing caregivers with information regarding services to alleviate the emotional, psychological, physical, or financial stress associated with the caregiver and vulnerable adult relationship

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The department shall institute a program of education and training for the department, the department's designee, and law enforcement agency staff and other individuals who provide adult protective services

50-25.2-14. Implementation contingent upon appropriation

(Effective through December 31, 2019) The department is not required to implement or enforce this chapter with respect to any region, area, or county of this state if the legislative assembly does not provide an appropriation to support the implementation and enforcement of this chapter within that region, area, or county

Implementation contingent upon appropriation. (Effective after December 31, 2019) The department and human service zones are not required to implement or enforce this chapter with respect to any zone, region, area, or county of this state if the legislative assembly does not provide an appropriation to support the implementation and enforcement of this chapter within that zone, region, area, or county

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