Adult Protective Services Department of Public Health and Human Services

1. Adult Protective ServicesDepartment of Public Health and Human Services Rick Bartos Helena, Montana

2. Purpose of Presentation • Overview of Aging Population of Montana • Overview of Montana Elder and Persons With Developmental Disabilities Abuse Prevention Act • Overview of How APS Investigates and makes Referral to Law Enforcement/County Attorney • Critical Information for County Attorney’s office on the criminal and civil components of the Act

3. Montana Demographics Historic Changes Graying of Montana-----implications for the criminal and social service agencies Currently 14 % of Montana population 65 years or older • By 2025 projected to have third highest population per capita over 65 years in nation • 25% of population 65 years or older

4. Said another way • One out of every four Montanans will be over the age of 65.

5. Number of Montanans over 65 with Alzheimer’s and Other Dementia • Year 2000--------- 16,000 • Year 2010 21,000 • Year 2020 25,000 • Year 2025 29,000 • 81 % increase change from Y 2000

6. History of Montana Adult Protective Services • Protective Services Act for Aged Persons and Disabled Adults • 1975 • Provide voluntary protective services _____________________________ Montana Elder and Persons with Developmental Disabilities Abuse Prevention Act Section 52-3-801, MCA 1983

7. Combined Civil and Criminal Processes • Established social service agency investigate allegations of abuse, neglect and exploitation • Authorized agency to take emergency protective hold—temporary guardianship • Provide emergency protective services • Defined abuse, neglect, sexual abuse and exploitation • Required collaboration between social services and law enforcement

8. Criminal (not found in Title 45) • Defines the crime of Elder or Persons with Developmental Disabilities: Abuse, neglect, exploitation: • Elements of crime • Age (60 years of age or older) • Disabling condition/Developmentally Disabled

9. Civil and Criminal • Provided authority to intervene/remove • Provided civil immunity for referral in good faith • Provided authority to gather evidence • Defined penalty: • ---First, second offense abuse, neglect and exploitation • ---Failure to report; consequences

10. Statute Emphasized Collaboration Collaborative relations with: • Local County Attorney • State Attorney General/DOJ • U.S. Attorney’s Office (Quarterly telephone conferences with IRS; Postal Inspector; staff • Health Care Criminal Task Force • Medicaid Fraud Control Unit • Tribal Court/law enforcement • State Insurance Commissioner/Securities

11. Significant APS Statutory Powers If the representative of the department has reasonable cause to believe that an older person or a person with DD is suffering from abuse, sexual abuse, neglect or exploitation and 1.) Reasonable cause to believe the person is incapacitated; and 2.) Is in substantial risk of death or serious physical injury, then--------

12. Intervention • Department agent may take emergency protective services---meaning • Custody of the person • Facilitate emergency protective services • Including hospitalization; medical services • Overrides any guardianship or power of attorney relationship Statute allows two (2) judicial days Section 52-3-804, MCA

13. Temporary Guardianship Upon completion of two judicial days then APS must either: Provide voluntary protective services Petition the District court to act as temporary guardianship or appoint a temporary guardian as provided in section 72-5-317, MCA

14. Crucial Component?County Attorney’s Office Prosecution—deferred prosecution agreements; deterrence; restitution Link to Law Enforcement Civil action--- Petition for Temporary Guardianship Petition for Access/Intervention Petition for Removal of Life sustaining treatment

15. Guardianships • Currently, in addition to investigation of abuse, neglect and exploitation referrals, APS is temporary or permanent guardian/conservator to 215—250 persons statewide • Crucial service from County Attorney’s office.

16. What constitutes crime? Victim: Abuse Sexual Abuse Neglect Exploitation Misdemeanor pernalty; Felony penalty Section 52-3-825, MCA Failure to Report: Misdemeanor penalty Section 52-3-825, MCA

17. Who Are Mandatory Reporters? • Health care providers • Ambulance attendants • Persons employed in retirement, assisted living arrangements • Attorney (exception if attorney-client privilege applies • Peace Officer/law Enforcement • Contracted service providers to DD persons

18. Adult Protective Services Investigations • The department shall investigate reports of abuse, sexual abuse, neglect or exploitation . . . . Section 52-3-804

19. Abuse Infliction of physical or mental injury, or Deprivation of food, shelter, clothing or services necessary to maintain the physical or mental health of an older person or a person with a developmental disability. Section 52-3-803, MCA

20. Neglect • Failure of a person who has assumed legal responsibility or contractual obligation to provide food, shelter, clothing or services necessary to maintain the physical or mental health of the older person or person with a developmental disability. • Section 52-3-803, MCA

21. Neglect Self neglect is a substantial number of referrals • Self neglect is not a crime • It presents the constitutional issue of government intervention and the right of a person to be left alone.

22. Exploitation • Unreasonable use of a power of attorney, conservatorship or guardianship to obtain control of or divert to the advantage of another the ownership, use, benefit or possession of the person’s money, assets or property, by means of deception, duress, menace, fraud, undue influence or intimidation

23. Exploitation---second definition • An act, taken by a person who has the trust and confidence of an older person or a person with a developmental disability to obtain control of or to divert to the advantage of another the ownership, use, benefit, or possession of or interest in the person’s money, assets or property buy means of deception, duress, menace, fraud, undue influence, or intimidation • Section 52-3-803 (3) (b)

24. Exploitation---third definition • Unreasonable use of a power of attorney, conservatorship or guardianship done in the course of an offer or sale of insurance or securities in order to obtain control of or to divert to the advantage of another the ownership, use, benefit or possession of the person’s money, assets or property by means of deception, duress, menace, fraud, undue influence or intimidation . . .

25. Operation Protect Montana (OPM) APS Computer Data System • Web based computer data system • Provide detailed case records of investigations • Allows for tracking of layers of data on abuse, neglect and exploitation • Utilized in both criminal and civil proceedings • Confidentiality

26. Confidentiality • The case records of the department, its local affiliates, the county attorney, and the court concerning the actions taken under this part must be kept confidential as provided by this section. . . . • Section 52-3-813, MCA

27. Disclosure of Case Records • The records and reports required to be kept confidential by subsection (1) must be disclosed, upon request, to the following persons or entities in this or any other state: • (a) a county attorney or other law enforcement official who requires the information in connection with an investigation . . .; • (b) a court that has determined, in camera, that public disclosure . . Is necessary for the determination of an issue before it;

28. Disclosure of Record c) a grand jury upon its determination that the report, data, information, or record is necessary in the conduct of its official business. Section52-3-813, MCA

29. Adult Protective Services • Trained professionals • Many years of social service experience • Variety of degreed backgrounds: law enforcement; social work; psychology; corrections; military • 40 APS workers statewide

30. APS is not a criminal justice agency • Will interview, collect evidence, including photographs, documents; and not Mirandize • Develops extensive “case records” that are then forwarded to law enforcement/county attorney for review • Evidence gathered (including testimony) used in criminal prosecution

31. Referrals • FY 1998 2213 • FY 1999 2320 • FY 2000 2534 • FY 2001 2378 • FY 2002 2458

32. Montana Statistics • CY 1999 2,400 referrals • CY 2010 5,522 referrals • Average referral per worker 90—236 cases per year

33. Number of potential victimsCY 20103,895 people • Adult Protective Services made contact with

34. Allegations Breakdown by victimCY 2010 • Abuse 805 • Neglect 3,583 • Exploitation 1,113

35. Age of Victim • Over 60 years 70% • Under 60 years 30%

36. Gender of Victim Male 42% Female 57%

37. Race and Ethnicity • Caucasian 3134 • Native American 199 • Afro American 12 • Hispanic 88

38. Upon Completion of APS Investigation • Close Referral and/or Open Case Management • APS does not substantiate against POI; it focuses on the victim: Adult Maltreatment Indicated Adult Maltreatment Not Indicated Closed without Findings Insufficient Information to Warrant an Investigation

39. Adult Maltreatment Indicated • After investigation, based on a preponderance of the evidence, the protective worker has determined that the victim ”has been abused, sexually abused, neglected, exploited or engaged in self neglect.

40. Preponderance of Evidence • The standard of proof in most civil cases in which the party bearing the burden of proof must present evidence which is more credible and convincing than that presented by the other party or which shows that the facts to be proven is more probable than not.

41. Closed without findings • The investigator completed the investigation but was unable to make a determination, or that the worker was unable to complete an investigation due to circumstances beyond the administrative directive, court order, etc.

42. Adult Maltreatment IndicatedOPM 2010 • Adult Maltreatment Indicated • Range 30% ---- 50% • Adult Maltreatment Not Indicated • Range 26% ---45% • Closed without findings • Range 19% --- 30%

43. What It Means to County Attorney’s Office 334--445 potential exploitation crimes In Calendar Year 2010 • 40% of 1113 exploitation referrals are determined to be adult maltreatment indicated. • Reasonable cause to believe that a crime has been committed.

44. Abuse Cases 2010 • 805 total abuse referrals were investigated 240 abuse referrals were determined to be Adult Maltreatment Indicated in 2010. “ Reasonable cause to believe crime was committed”

45. Estimated number of prosecutionsper statewide • 12-15 prosecutions of financial exploitation cases per year

46. STATISTICAL MONTANA ELDER VICTIM • Female----Widow • Over 65 years------Living at home • Amount of resources not factor • Isolated, partial loss of capacity • Living along Highway 93 corridor • Yellowstone County/ Granite County • Suspect family member/known to victim

47. If we have time: • Adult Protective Teams Section 52-3-805, MCA Evidence of abuse, sexual abuse, neglect or exploitation gathered by APS or physician Section 52-3-815, MCA Admissibility of APS report Section 52-3-821, MCA

48. If We Still Have Time • Issues of Title 72, MCA and Guardianships • Requirement to file Annual Reports • Issues of Title 72, MCA Conservatorships

49. And Finally, • On behalf of the entire Montana Adult Protective Services agency our sincere appreciation for the support; representation; encouragement; patience and professionalism provided by our Montana County Attorneys.