Adult Protective Services: A New Reporting Requirement

Last month, the North Carolina General Assembly enacted legislation (S.L. 2015-36) amending some of the specific reporting requirements that apply to employees and volunteers at facilities providing services for people who are mentally ill, developmentally disabled, or are substance abusers (MH/DD/SA facilities).  The new reporting requirements apply to situations involving certain types of criminal sex offenses, including rape and sexual assault. Because some of these reporting requirements intersect or overlap with the adult protective services (APS) reporting requirements, there may be some confusion when the law goes into effect on December 1, 2015. This post briefly reviews the existing APS reporting requirements and describes how the new provisions fit into the overall framework.

Current APS Reporting Requirement There is one universal APS reporting requirement in state law: any person who has reasonable cause to believe that a disabled adult is in need of protective services must make a report to the county department of social services (DSS) or consolidated human services agency (G.S. 108A-102). "Protective services" are those services that are necessary to protect the disabled adult from abuse, neglect, or exploitation. A “disabled adult” is a person who is:

• 18 years of age or older or a lawfully emancipated minor;
• Present in the state of North Carolina; and
• Physically or mentally incapacitated.

According to the statute, a person may be physically or mentally incapacitated “as a result of mental retardation, cerebral palsy, epilepsy or autism, organic brain damage caused by advanced age or other physical degeneration in connection therewith; or due to conditions incurred at any age which are the result of accident, organic brain damage, mental or physical illness, or continued consumption or absorption of substances.” Other key terms associated with this reporting requirement are defined in G.S. 108A-101. Once DSS receives the report, the agency will conduct an evaluation. If it finds evidence of abuse, neglect, or exploitation, the agency is required to provide protective services to the adult and report the findings to the district attorney. Note that DSS may also contact law enforcement before the evaluation is complete if there is reason to believe the disabled adult is at risk of physical harm (10A NCAC 71A .0201(c)) A disabled adult who has the capacity to consent to the provision of protective services by DSS may refuse to provide consent. For those who lack the capacity to consent or who are in need of emergency services, the agency may petition a court for authorization to provide protective services. If DSS has notified the district attorney of the situation, law enforcement officials will investigate and may pursue one of several criminal remedies, including:

• Assault (G.S. 14-32; 14-32.4; 14-33),
• Assault on a handicapped person (G.S. 14-32.1),
• Abuse of an elderly or disabled person in domestic setting (G.S. 14-32.3),
• Abuse or neglect of a patient of an adult care or nursing home (G.S. 14-32.2), and
• Rape and other sex offenses (G.S. Chapter 14, Article 7A).

When DSS makes a report to the district attorney, a state regulation (10A NCAC 71A .0906) requires DSS to disclose specific information from the APS record:

• The name, address, age, and condition of the adult;
• The allegations (but not the identity of the reporter);
• The evaluation, including the agency’s findings and supporting documents, which includes any psychological or medical reports (with limited exceptions for certain substance abuse information); and
• The agency’s conclusions and recommendations for action.

New Reporting Requirement Beginning December 1, 2015, employees and volunteers of MH/DD/SA facilities will be required to make a report if they witness a client “become a victim of” one of the many crimes described in Articles 7A and 26 of Chapter 14 of the N.C. General Statutes. Many of these crimes involve sexual violence or abuse – such as rape and sexual battery – but these sections of the law also include crimes such as adultery, indecent exposure, and secret peeping. The reporting requirement is tied to activity in an MH/DD/SA "facility," which could be an inpatient or group environment or an outpatient care setting (G.S. 122C-3(14)). There is clearly some redundancy in this reporting requirement. As discussed above, existing state law requires reporting if the alleged victim is a disabled adult. There is another state law that would requires reporting of suspected abuse, neglect, dependency, or death due to maltreatment of a child (G.S. 7B-301; see this book by Janet Mason for more information about this reporting law). Many of the sexual offenses identified in the new reporting law would be considered abuse that the employees or volunteers are already required to report pursuant to these existing APS and child protective services (CPS) laws. According to media accounts, however, some abuse in facilities was not being reported. The new reporting requirement is different from existing APS and CPS reporting laws, and arguably more expansive, in the following ways:

• Time limitation: The new law requires the MH/DD/SA facility employee or volunteer to report allegations within 24 hours of witnessing the situation. The other reporting laws do not impose similar time limitations.
• Report recipients: The new law allows reports to be made to any one the following: (1) DSS, (2) the district attorney, or (3) a law enforcement agency. Existing laws discussed above require reports to be made to DSS and then impose duties on DSS to communicate with the district attorney and/or law enforcement officials. Note that the new law does not eliminate or modify the existing adult or child protective services reporting laws. Those reports must still be made to DSS.
• Report subjects: As mentioned above, the APS reporting law applies to suspected abuse, neglect, or financial exploitation of a disabled adult. The new reporting requirement applies to suspected criminal actions involving a person who is a client of an MH/DD/SA facility. Because there may be adult clients of these facilities who are not "disabled" as that term is defined in the APS reporting law, the new reporting law probably applies to more adults than the APS law.
• Scope: The new reporting requirement likely extends beyond actions that would be considered abuse or neglect under the APS law, such as indecent exposure and secret peeping (although abuse can include willful infliction of mental anguish under the APS law).
• Criminal penalty: Under the new law, a facility employee or volunteer could be charged with a crime (Class A1 misdemeanor) for failing make the required report. There is a similar penalty that applies in the context of child abuse if a person or institution “knowingly or wantonly fails” to make a required report or prevents another person from making a required report (Class 1 misdemeanor). There is not a comparable provision in the APS reporting law, so the potential for criminal liability is entirely new in that context.

Like the APS reporting law, the new law requires DSS (and the district attorney) to follow-up on the report. DSS will continue to screen reports, evaluate the situation, and take action as authorized by the applicable APS laws. There is nothing in this new reporting law that provides DSS with additional authority to take action on a report. If DSS receives a report that falls outside the APS law but within the scope of this new reporting requirement, the agency will need to coordinate with the district attorney and/or law enforcement agencies to ensure that another official who has authority to investigate the situation has the information from the report. This new reporting requirement is fresh and untested. Some of the subtleties will certainly emerge in the next year or two as it is interpreted and applied. In the meantime, state officials are planning to coordinate efforts on training and implementation and will certainly be communicating more details directly to county social services officials and others in the coming months.