Alabama Administrative Code
Title 660 - ALABAMA DEPARTMENT OF HUMAN RESOURCES
Chapter 660-5-41 - PROTECTIVE SERVICES FOR ADULTS
Section 660-5-41-.07 - Alabama Elder And Adult In Need Of Protective Services Abuse Registry
Universal Citation: AL Admin Code R 660-5-41-.07
Current through Register Vol. 42, No. 11, August 30, 2024
I. INTRODUCTION
Under Section 38-9G-2, Code of Alabama 1975, the Alabama Department of Human Resources is responsible for establishing and maintaining a statewide registry known as the Alabama Elderly and Adult in Need of Protective Services Abuse Registry (hereinafter, "Registry") for adult abuse, neglect, and exploitation reports made pursuant to § 38-9-8, Code of Alabama 1975, as well as criminal convictions and protection from abuse orders. The purpose of the Registry is to protect vulnerable adults from abuse, neglect, and exploitation.
The Registry shall contain the name of any individual for whom any of the following are true:
(1) The
individual has been convicted of the crime of elder abuse and neglect in the
first degree pursuant to Section
13A-6-192, Code of
Alabama 1975.
(2) The
individual has been convicted of the crime of elder abuse and neglect in the
second degree pursuant to Section
13A-6-193, Code of
Alabama 1975.
(3) The
individual has been convicted of the crime of elder abuse and neglect in the
third degree pursuant to Section
13A-6-194, Code of
Alabama 1975.
(4) The
individual has been convicted of the crime of financial exploitation of an
elderly person in the first degree pursuant to Section
13A-6-195, Code of
Alabama 1975.
(5) The
individual has been convicted of the crime of financial exploitation of an
elderly person in the second degree pursuant to Section
13A-6-196, Code of
Alabama 1975.
(6) The
individual has been convicted of the crime of financial exploitation of an
elderly person in the third degree pursuant to Section
13A-6-197, Code of
Alabama 1975.
(7) The
individual has been convicted of any act of elder abuse as defined in Section
38-9F-3, Code of
Alabama 1975.
(8) An
elder abuse protection order has been issued against the individual pursuant to
section 38-9F-4, Code of
Alabama 1975.
(9) A
protection from abuse order has been issued against the individual pursuant to
Chapter 5 of Title 30, Code of Alabama 1975, for the
protection of an elderly person or an adult in need of protective
services.
(10) The individual has
been convicted of an act of abuse, neglect, or exploitation as described in
Section 38-9-7, Code of
Alabama 1975.
(11) The
individual has been found by the Department of Human Resources to have
committed an act of abuse, elder abuse, emotional abuse, exploitation,
financial exploitation, intimidation, neglect, sexual abuse, or undue influence
against an elderly person or an adult in need of protective services.
II. Definitions for the purposes of this Central Registry The following terms have the following meanings:
(1) ABUSE. The same term as defined in
Section 38-9-2, Code of
Alabama 1975, as amended, "the infliction of physical pain,
injury, or the willful deprivation by a caregiver or other person of services
necessary to maintain mental and physical health."
(2) ADULT FOSTER HOME. The terms "foster
family home" and "foster home" are used interchangeably to describe the
settings of foster care for adults. Foster care for adults is intended to
provide the security of a supportive family atmosphere and encouragement toward
social interaction. It can be both rehabilitative and preventive.
(3) ADULT IN NEED OF PROTECTIVE SERVICES. The
same term as defined in Section
38-9-2, Code of
Alabama 1975, as amended, "a person 18 years of age or older whose
behavior indicates that he or she us mentally incapable of adequately caring
for himself or herself and his or her interests without serious consequences to
himself or herself or others; or who because of physical or mental impairment,
is unable to protect himself or herself from abuse, neglect or exploitation,
sexual abuse, or emotional abuse by others, and who has no guardian or relative
or other appropriate person able, willing, and available to assume the kind and
degree of protective supervision required under the circumstances."
(4) DEPARTMENT. The Alabama Department of
Human Resources. To the extent other entities are referenced in this Section,
the following will be used: Alabama Department of Public Health ("ADPH");
Alabama Department of Mental Health ("ADMH"); Administrative Office of Courts
("the AOC").
(5) ELDER ABUSE. The
same term as defined in Section
38-9F-3(2),
Code of Alabama 1975, as amended, "the commission of
any of the following acts or the intent to commit any of the following acts
against an elderly person:
a. Abuse, as
defined in Section
38-9-2, Code of
Alabama 1975.
b.
Arson, as defined in Sections
13A-7-40 to
13A-7-43, inclusive,
Code of Alabama 1975.
c. Assault, as defined in Sections
13A-6-20 to
13A-6-22, inclusive,
Code of Alabama 1975.
d. Criminal coercion, as defined in Section
13A-6-25, Code of
Alabama 1975.
e.
Criminal trespass as defined in Sections
13A-7-2 to
13A-7-4.1, inclusive,
Code of Alabama 1975.
f. Emotional abuse, as defined in Sections
13A-6-191, Code of
Alabama 1975.
g.
Financial abuse, as defined in Sections
13A-6-191 and
8-6-171, Code of
Alabama 1975.
h.
Harassment, as defined in Section
13A-11-8, Code of
Alabama 1975.
i.
Kidnapping, as defined in Sections
13A-6-43 and
13A-6-44, Code of
Alabama 1975.
j.
Menacing, as defined in Sections
13A-6-23, Code of
Alabama 1975.
k.
Reckless endangerment, as defined in Sections
13A-6-24, Code of
Alabama 1975.
l.
Sexual abuse, as defined as any of the acts in Sections
13A-6-60 to
13A-6-68, Code of
Alabama 1975.
m.
Stalking, as defined in Sections
13A-6-90 to
13A-6-91.1, inclusive,
Code of Alabama 1975.
n. Theft, as defined in Sections
13A-8-2 to
13A-8-5, inclusive,
Code of Alabama 1975.
o. Unlawful imprisonment, as defined in
Sections 13A-6-41 and
13A-6-42, Code of
Alabama 1975."
(6) ELDERLY PERSON. An individual 60 years of
age or older.
(7) EMOTIONAL ABUSE.
The intentional or reckless infliction of emotional or mental anguish, or the
use of a physical or chemical restraint, medication, or isolation as punishment
or as a substitute for treatment or care of any elderly person or adult in need
of protective services.
(8)
EMPLOYEE. An individual who is either:
a.
Hired directly or through a contract by a service provider who has duties that
involve, or may involve, one-on-one contact with a patient, resident, or
client.
b. A volunteer of a service
provider who has duties that involve, or may involve, one-on-one contact with a
patient, resident, or client.
c.
Since the legislation does not indicate it was intended to apply retroactively,
this definition applies to those hired or volunteering on or after January 1,
2023.
(9) EXPLOITATION.
The same term as defined in Section
38-9-2, Code of
Alabama 1975, as amended, "the expenditure, diminution, or use of
the property, assets, or resources of a protected person without the express
voluntary consent of that person or his or her legally authorized
representative or the admission of or provision of care to a protected person
who needs to be in the care of a licensed hospital by an unlicensed hospital
after a court order obtained by the State Board of Health has directed closure
of the unlicensed hospital."
(10)
FINANCIAL EXPLOITATION. Any of the following:
a. The wrongful or unauthorized taking,
withholding, appropriation, or use of money, assets, or property of an elderly
person or an adult in need of protective services.
b. The use of deception, intimidation, undue
influence, force, or threat of force to obtain or exert unauthorized control
over an elderly person's money, assets, or property or the money, assets, or
property of an adult in need of protective services with the intent to deprive
that individual of his or her money, assets, or property.
c. The breach of a fiduciary duty to an
elderly person or an adult in need of protective services under a power of
attorney or through a conservatorship or guardianship which results in an
unauthorized appropriation, sale, or transfer of the individual's money,
assets, or property.
(11) INDICATED. This disposition is used when
preponderance of the substantial evidence (e.g., eyewitness account, medical
report, or professional evaluation) and the professional judgement of the
social worker (based on facts gathered during the initial assessment) indicates
that abuse, neglect, or exploitation has occurred and that the adult is
physically or mentally impaired or aged.
(12) INTIMIDATION. A threat of physical or
emotional harm to an elderly person or an adult in need of protective services,
or the communication to an elderly person or adult in need of protective
services that he or she will be deprived of food and nutrition, shelter,
property, prescribed medication, or medical care or treatment.
(13) NEGLECT. The same term as defined in
Section 38-9-2, Code of
Alabama 1975, as amended, "the failure of a caregiver to provide
food, shelter, clothing, medical services, or health care for the person unable
to care for himself or herself; or the failure of the person to provide these
basic needs for himself or herself when the failure is the result of the
person's mental or physical inability." Lack of supervision may meet the
definition of neglect when lack of supervision results in lack of food,
shelter, clothing, medical services, or health care.
(14) SERVICE PROVIDER. Any of the following:
a. As defined in Section
38-9G-1(11),
Code of Alabama 1975, to include any of the following:
(a) Assisted living community
centers;
(b) Specialty care assisted
living communities or centers;
(c)
Home health agencies;
(d) Hospice
programs or residential hospice facilities;
(e) Hospitals;
(f) Long-term care facilities;
(g) Skilled nursing facilities;
(h) Rehabilitation facilities;
(i) Group homes, other residential
facilities, and community-based services serving adults in need of protective
services, as designed by the rules adopted by the Department, ADMH, and ADPH;
and/or
(j) Foster homes that serve
elderly persons or adults in need of protective services.
b. Adult Day Care Facilities
c. Should a conflict exist between
definitions provided by the Department, ADPH, and/or ADMH, the definition used
by the regulating, certifying, or licensing agency shall control. If no such
agency exists, the Department's definition shall control.
(15) SEXUAL ABUSE. The same term as defined
in Section
38-9-2, Code of
Alabama 1975, as amended, "any conduct that constitutes a crime
under Article 4 of Chapter 6 of Title 13A." Forms of sexual abuse include rape,
incest, sodomy, and indecent exposure.
(16) UNDUE INFLUENCE, Domination, coercion,
manipulation, or any other act exercised by another individual to the extent
that an elderly person or adult in need of protective services is prevented
from exercising free judgement and choice.
III. DISCLOSURE OF INFORMATION AND QUERY
The Department shall establish and enforce reasonable rules governing the custody, use, and preservation of the reports and records of abuse, elder abuse, emotional abuse, exploitation, financial exploitation, intimidation, neglect, sexual abuse, or undue influence against an elderly person or an adult in need of protective services. These reports and records and related information or testimony shall be confidential, and shall not be used or disclosed for any purposes other than the following:
(1) For investigation by a law enforcement
agency.
(2) For use by a grand jury
upon its determination that access to the reports and records is necessary in
the conduct of its official business.
(3) For use by a court that finds the
information is necessary for the determination of an issue before the
court.
(4) For use by any guardian
ad litem, guardian, or conservator authorized by a court to act as a
representative for an elderly person or adult in need of protective services
who is the subject of a report.
(5)
For use by a physician who has before him or her an elderly person or an adult
in need of protective services whom the physician reasonably suspects may be
abused or neglected.
(6) For use by
federal, state, or local governmental entities, social service agencies of
another state, or any agent of these entities, having a need for the
information in order to carry out their responsibilities under law to protect
individuals from abuse and neglect.
(7) For public disclosure of the findings or
information about the case of abuse or neglect that has resulted in a fatality.
Information identifying by name persons other than the victim shall not be
disclosed.
(8) For purposes of
employment by a service provider.
(A) On or
before July 1, 2023, a service provider shall query the Registry via the
Department with regard to an individual who is an employee or prospective
employee of the provider to confirm whether any of the following are true:
1. The individual has been convicted of a
crime as previously stated in Section I.
2. An elder abuse protection order against
the individual has been issued pursuant to Section
38-9F-4, Code of
Alabama 1975.
3. A
protection from abuse order has been issued against the individual pursuant to
Chapter 5 of Title 30, Code of Alabama 1975, for the
protection of an elderly person or an adult in need of protective
services.
4. The Department of
Human Resources has made a finding that the individual has committed an act of
abuse, elder abuse, emotional abuse, exploitation, financial exploitation,
intimidation, neglect, sexual abuse, or undue influence against an elderly
person or an adult in need of protective services.
IV. NOTIFICATIONS FROM OTHER AGENCIES
(A) The AOC shall notify the
Department of the criminal conviction or protection order concerning an
individual under any of the following circumstances:
1. An individual is found guilty of a crime
perpetrated against an elderly person or an adult in need of protective
services as previously stated in Section I.
2. The court issues an elder abuse protection
order against an individual pursuant to Section
38-9F-4, Code of
Alabama 1975.
3. The
court issues a protection from abuse order against an individual pursuant to
Chapter 5 of Title 30, Code of Alabama 1975, for the
protection of an elderly person or an adult in need of protective
services.
(B) ADPH,
ADMH, and all other agencies responsible for investigating reports of abuse,
neglect, exploitation, sexual abuse, or emotional abuse under Section
38-9-6, Code of
Alabama 1975, shall notify the Department of the outcome of the
investigation if the report is determined to have been true or founded.
In addition to documentation required by the Department, notification shall include the individual's last known mailing address and any other information that the agency determines is necessary to adequately identify the individual when inquiry to the Registry is made.
(C) Upon receiving notification as previously
stated, the Department, in addition to entering the individual's name and
address on the Registry, shall enter information pertaining to the offense or
offenses of which the individual was convicted. If an elder abuse protection
order against the individual has been issued, or if a protection from abuse
order against the individual has been issued for the protection of an elderly
person or an adult in need of protective services, information pertaining to
why the order was issued and the age of the victim shall be entered by the
Department when known.
(D) If the
individual whose information is entered on the Registry was not convicted of a
crime but was found by the investigating agency to have otherwise committed
acts of abuse, elder abuse, emotional abuse, exploitation, financial
exploitation, intimidation, neglect, sexual abuse, or undue influence against
an elderly person or an adult in need of protective services, the Department,
in addition to entering the individual's name and address on the Registry,
shall also enter information pertaining to the offense or offenses the
individual was found by the investigating agency to have committed. The
Department shall adopt the final dispositional findings of other investigating
agencies, provided all requested and applicable due process has been
completed.
V. DUE PROCESS
Due process shall be completed prior to an individual's information being placed on the Registry. In submitting the results of their investigations to the Department for placement on the Registry, ADMH and ADPH affirm due process has been completed. Placement on the Registry as to the AOC's submissions shall be determined by the final order of a court of competent jurisdiction.
Where the Department is the investigating agency, due process shall be completed in accordance with Ala. Admin. Code r. 660-5-41-.01. Notice of an indicated finding must be given by personal service or by certified mail to the person responsible for abuse, neglect, and/or exploitation.
VI. EXPUNGEMENT
Once the individual's information is entered on the Registry, it shall remain on the Registry even if the individual fulfills the obligations of any criminal sentencing against the individual. An individual's name may be expunged from the registry for one of three reasons only:
(1) Expungement of a criminal conviction was
ordered by a court of competent jurisdiction with adequate notice to all
parties. This finding results in expungement of a criminal conviction
only.
(2) Other investigating
agencies (ADMH or ADPH) have expunged records of investigations conducted by
them based on their respective rules or policy.
(3) Should an individual believe the Registry
information is inaccurate due to mistaken identity, he or she may, within
thirty days of notification that his or her name appears on the Registry,
challenge the inaccurate information contained therein.
(a) This process does not apply to a
challenge to factual findings of an investigation or the disposition of an
investigation where due process has occurred. The purpose of this process is to
provide due process for those who have been identified in error as having
committed an act of abuse, neglect, or exploitation of an elderly person or an
adult in need of protective services.
(b) If the Registry entry is one that was
entered based on a criminal conviction (as reported by the AOC) or the
investigation of another investigating agency (ADPH or ADMH), the individual
must contact the entity having made the initial finding (ADPH or ADMH) or the
AOC as to its submission to the Department. The finding shall only be expunged
from the Registry following that entity's determination that it is due to be
expunged. Should that entity decline to expunge the entry, appeal should be
taken in a manner consistent with that entity's regulations.
(c) For those Registry entries based on the
Department's investigation, the request must be made in writing and submitted
by certified mail to: APS Registry Division, Alabama Department of Human
Resources, P.O. Box 304000, Montgomery, Alabama 36130. The request must
include, at a minimum, a detailed description of the challenge as well as
copies of all relevant official documents.
(d) The Commissioner of the Department shall
designate an agency official to review these challenges. The information
submitted will be reviewed by the Commissioner's designees, who will determine
whether the individual has been identified in error.
(e) If the individual remains dissatisfied
with the decision of the Department, he or she may submit a notice of appeal by
certified mail to: Administrative Hearings Division, Alabama Department of
Human Resources, P.O. Box 304000, Montgomery, Alabama 36130. Any hearing before
an administrative law judge will be conducted in accordance with the
regulations of the Department.
(f)
Should an individual remain dissatisfied with the ruling of the administrative
law judge, he or she may appeal the ruling to a Circuit Court of competent
jurisdiction in accordance with §
41-22-20, Code of
Alabama 1975. Notice of this appeal may be given by certified mail
to: Administrative Hearings Division, Alabama Department of Human Resources,
P.O. Box 304000, Montgomery, Alabama 36130.
VII. CLEARANCE OF ADULT PROTECTIVE SERVICES REGISTRY
Adult Abuse, Neglect and Exploitation (AANE) Clearance forms signed by the individual to be cleared must be submitted by mail or e-mail. If submitted by mail, the forms should be mailed to Adult Protective Services Intake Division, Alabama Department of Human Resources, Post Office Box 304000, Montgomery, Alabama 36130-4000. If submitted by e-mail, the forms should be sent to apsregistry@dhr.alabama.gov.
Author: Teressa Momon
Statutory Authority: Sections 38-9-8 and Sections 38-9G-1 through 38-9G-5, Code of Alabama 1975; Title XX of the Social Security Act, 42 U.S. C. A. § 1397.
Disclaimer: These regulations may not be the most recent version. Alabama may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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