Ala. Admin. Code r. 660-5-41-.01

Current through Register Vol. 43, No. 1, October 31, 2024

Section 660-5-41-.01 - Purpose Of Protective Services

(1) The purpose of protective services is to provide services to elderly and/or disabled adults unable to protect their own interests or are harmed or threatened with harm through the action or inaction by another individual because of physical or mental impairment or lack of knowledge, or are unable to manage their own resources in order to carry out the activities of daily living or to protect or remove themselves from neglect, harmful, or hazardous situations resulting in physical or mental injury; neglect or maltreatment; failure to receive adequate food, shelter, or clothing; deprivation of entitlement due them; or wasting of their resources.

(2) The specific purposes for providing or securing protective services are:

(a) To prevent injury to self and/or others;

(b) To see that emergency care is provided to meet acute physical, mental, or other needs that the individual cannot himself arrange;

(c) To protect the individual's rights if legal action is needed;

(d) To prevent neglect, abuse and exploitation of the individual; and

(e) To protect the individual's financial resources.

(3) Investigative Hearings

(a) Any person who is approved, licensed, or certified to care for adults; any person who is employed (i.e., professional, non-professional, contract) by, serves as a volunteer for, or is connected with (e.g., student completing an educational practicum, board members) any facility, agency, or home which cares for and controls any adults and the facility is licensed, approved, or certified by the state; operated as a state facility; or is any public, private, or religious facility or agency that may be except from licensing procedures must be offered a hearing when they have been identified as the person allegedly responsible for abuse/neglect and exploitation and the preliminary Adult Abuse, Neglect or Exploitation (AANE) disposition is "indicated." These individuals must be offered a hearing even if they were reported to have abused/neglected/exploited their own relatives.

(b) Except where written consent or a release is obtained, written notification of an opportunity for a departmental adult protective services investigative hearing must be given to an alleged perpetrator before releasing information or reports to: employers or prospective employers, approving agencies, or licensing/certifying agencies or groups in all in-home care or out-of-home care settings, e.g. nursing homes, assisted living facilities, foster homes, day care centers, group homes, home health care, etc. under the following circumstances:

(i) The alleged perpetrator has contact with elderly and/or disabled or other vulnerable persons as a part of his/her employment or potential employment;

(ii) The adult protective services report involves the alleged perpetrator's relatives or any other adult in any setting; and

(iii) The investigation involves one of the following situations:

(I) The disposition of a pending adult protective services investigation tentatively appears to be "indicated" for the alleged perpetrator; or

(II) The Department determines that a concluded "indicated" adult protective services investigation already filed in the adult protective services departmental files without a hearing being offered to the perpetrator should be shared for the protection of adults or other vulnerable persons, or

(III) In pending or concluded adult protective services investigations, the investigation disposition is "undetermined" or "not indicated" but the investigation indicates information, facts, or activities which might affect the alleged perpetrator's suitability to have regular and substantial contact with elderly and/or disabled or other vulnerable persons in in-home or out-of-home care situations.

I. Where an employer or licensing agency, etc. is aware of an investigation and requests information, the employer may be told verbally or in writing that the investigation is "not indicated" or undetermined. Additional information may be disclosed with a court order or in compliance with the hearing procedure.

(c) The alleged perpetrator is given ten (10) departmental working days from the receipt of the notification to request a hearing. That request must be in writing. If no such request is received in the Department's office by the end of the tenth (10th) working day, the alleged perpetrator's opportunity for a hearing will be considered waived, and the employer, prospective employer, facility administrator, or licensing/certifying agencies or groups will be notified of the findings of the investigation.

1. The victim, a family member, sponsor or someone acting responsibly for the victim, may be notified of the findings of the investigation under the conditions cited above.

(d) If the Department determines that an adult is in imminent danger of any abuse, neglect or exploitation any person in a position to discover, prevent or protect the adult from abuse, neglect or exploitation may be informed of the information in a pending or concluded investigation and the alleged perpetrator may be offered a hearing subsequent to the dissemination of this information.

(e) An adult protective services hearing is an internal investigatory hearing that is fact finding in nature and designed to elicit the facts in an atmosphere that allows the alleged perpetrator to contest the evidence presented against him/her. The following hearing procedures shall apply:

(i) Except as indicated below, the hearing procedures outlined in Chapter 660-1-5 shall apply to adult protective services investigative hearings.

(ii) The State Department of Human Resources shall conduct a hearing to determine by a preponderance of credible evidence that the adult has been abused, neglected or exploited. Credible evidence means that the available facts, when viewed in light of surrounding circumstances, would cause a reasonable person to believe that the alleged perpetrator was responsible for the abuse/neglect/exploitation. This decision does not depend solely on whether a court of law has determined that abuse, neglect, or exploitation has occurred. However, if the courts find cause that abuse, neglect or exploitation has occurred, this evidence will automatically justify a determination of "indicated."

(iii) The Department bears the burden of persuasion at the hearing.

(iv) In the case of "indicated" reports, the function of the hearing officer in a pending investigation is to make:

1) a determination of finding regarding the facts of the case, and

2) a determination of whether the report is "indicated" according to the investigative guidelines and procedures outlined in the Adult Services Manual and the Department of Human Resources Administrative Code.

(v) In all other cases, the function of the hearing officer in a pending or concluded investigation is:

1) to make a determination of finding regarding the facts of the case according to the investigative guidelines and procedures outlined in the Adult Services Manual and the Department of Human Resources Administrative Code, and

2) to make a determination of whether the facts are reasonably related to whether the alleged perpetrator(s) should be allowed to have regular and substantial contact with elderly and/or disabled or other vulnerable persons.

(vi) The hearing will not strictly follow the rules of evidence as followed by the circuit courts of the State.

(vii) The evidence will be received at the discretion of the hearing officer if it is a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.

(viii) Relevant and material evidence, including hearsay evidence, and visual drawings, and testimony about the use of anatomically correct dolls, is admissible at the hearing.

(ix) The victim or a witness may testify at the hearing without prior qualification.

(x) The hearing officer shall determine the weight and credibility to be given to the testimony of all witnesses.

(xi) Videotaped testimony of a victim or witness may be allowed.

(xii) Leading questions may be allowed of a victim or witness.

(xiii) All witnesses shall be allowed to testify without regard to any incompetency. The weight and credibility to be given to their testimony shall be determined by the hearing officer.

(xiv) The hearing shall not be open to the public. However, an employer or licensing/certification representative may be present as a non-participant with the consent of the Department and the alleged perpetrator.

(xv) The rules of discovery as followed by the courts of this State do not apply to the hearing. The alleged perpetrator has the following rights of access to information after a written request:

(I) To be provided a short and plain written statement of the matters asserted which will be presented at the hearing. The request must be made prior to the date set for the hearing to be timely.

(II) To review and copy at cost any written or recorded statement made by the alleged perpetrator to Department personnel in the course of the adult protective services investigation. The request must be made prior to the date set for the hearing to be timely.

(III) To review and copy at cost, before or during the hearing, the written material and other evidence in possession of the Department which will be placed into evidence at the hearing.

(IV) To an in camera (i.e., private) inspection by the hearing officer or an order issued to the Department by the hearing officer to review relevant Department adult protective services record(s) to determine if there is any material exculpatory evidence (i.e., evidence tending to clear or exonerate) in those records not available to the alleged perpetrator through other sources which must be released as necessary to the constitutional fairness of the hearing. Such a request must be made at least five (5) working days prior to the date set for the hearing to be timely.

(V) To review and copy at cost all non-confidential Department policy material (e.g., adult services manual materials, Administrative Letters).

(VI) To review and copy at cost all documents in the official hearing file maintained by the hearing officer.

(xvi) The hearing may be postponed or continued from time to time as necessary to ascertain all the facts or in order to provide a full and adequate opportunity for all the parties to present their case.

(xvii) If the Department's findings are upheld by the hearing decision, the Department may send a copy of the final decision letter to the appropriate employer, prospective employer, facility administrator, or licensing/certifying agencies or groups or may inform the victim, a family member/sponsor or someone who acts responsibly for the victim.

(f) Adult protective services investigative hearings do not apply to adult protective services investigations involving military installations. Adult protective services investigative procedures and disclosure of information involving military installations are governed by military regulations and working agreements with military authorities.

(4) Administrative Record Reviews

(a) All persons allegedly responsible for abuse neglect and exploitation with substantiated (i.e., indicated) Adult Abuse, Neglect or Exploitation dispositions must be given an opportunity to disagree with the Department's findings through an administrative record review if the person allegedly responsible is not entitled to an administrative hearing.

(b) The record review is completed to determine if the Adult Abuse, Neglect or Exploitation assessment contains sufficient documentation based on a preponderance of credible evidence to support the "indicated" disposition of adult abuse, neglect or exploitation.

(c) Upon completion of the Adult Abuse, Neglect or Exploitation assessment, adult protective services staff shall provide all persons identified as being responsible for abuse, neglect or exploitation with written notification of their right to an administrative record review if the individual is not entitled to an Administrative Hearing. Each person identified as responsible for abuse, neglect or exploitation must be sent a separate letter. If the person is a minor (i.e., under age 19), the notification must be sent in care of the minor's parents or legal custodian who may request the review on behalf of the child.

(d) Notification letters may be provided to the person allegedly responsible for abuse/neglect by mail or hand delivery.

(e) The person allegedly responsible is given ten(10) departmental working days from the receipt of the notification to request an administrative record review. The request must be in writing. If no such request is received in the Department's office by the end of the tenth (10^th) working day, the alleged person responsible opportunity for a record review will be considered waived.

Ala. Admin. Code r. 660-5-41-.01

Effective June 29, 1983. Emergency amendment effective September 23, 1983. Permanent amendment effective December 9, 1983. Succedent emergency amendment effective June 13, 1991. Succedent permanent amendment effective September 10, 1991. Succedent emergency amendment effective December 17, 1992. Succedent permanent amendment effective March 11, 1993. Succedent emergency effective July 16, 1993. Amended: Filed: September 3, 1993; effective October 8, 1993. Amended: Filed October 5, 1994; Succedent permanent amendment effective November 9, 1994. Amended: Filed July 10, 2007; effective August 14, 2007.

Amended by Alabama Administrative Monthly Volume XXXIX, Issue No. 08, May 28, 2021, eff. 7/12/2021.

Author: Teressa Momon

Statutory Authority:Code of Ala. 1975, §§ 38-2-6, 38-9-1 through -11; Title XX of the Social Security Act, 42 U.S.C. 1397.