Dependent Adult Removal

Provides that the DHS may remove dependent adults from the
custody of their caregiver or care facility upon determining that
abuse or neglect has occurred.  Establishes procedures for
removal and review of the removal.

HOUSE OF REPRESENTATIVES                H.B. NO.859        
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Chapter 346, Hawaii Revised Statutes, is amended
 2 by adding two new sections to be appropriately designated and to
 3 read as follows:
 4      "346-A  Involuntary removal.  Upon a department
 5 investigation under section 346-227 and a determination that
 6 abuse has occurred, the department shall remove the dependent
 7 adult from the care of the dependent adult's current caregiver or
 8 care facility, and place the dependent adult in an appropriate
 9 care facility in the following manner:
10      (1)  Where the dependent adult has the capacity to make
11           decisions, the department shall discuss removal with
12           the dependent adult, obtain the dependent adult's
13           consent to be placed in another appropriate facility,
14           and shall comply with the dependent adult's decision on
15           the facility in which to be placed;
16      (2)  Where the dependent adult does not have the capacity to
17           make decisions and has a guardian ad litem, the
18           department shall contact the guardian ad litem and
19           obtain consent to remove and place the dependent adult

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 1           in another facility.  If the guardian ad litem cannot
 2           be contacted in a timely manner, the department shall
 3           remove and place the dependent adult in an appropriate
 4           facility and shall contact the guardian ad litem as
 5           soon as possible following the placement;
 6      (3)  If the dependent adult does not appear to have the
 7           capacity to make decisions and does not have a guardian
 8           ad litem, the department pursuant to section 346-231
 9           shall seek an order for immediate protection; and
10      (4)  If the dependent adult has a case manager as provided
11           for in section 334-102(4), the department prior to
12           obtaining consent to remove and place, shall notify the
13           case manager of the actions to be taken by the
14           department under this section, and shall include the
15           case manager in all subsequent decisions regarding the
16           dependent adult.
17      346-B  Request for review; review; confidentiality of
18 records.  (a)  A caregiver or facility from whose care the
19 department has removed a dependent adult, may request that a
20 panel review the removal.  The request for review shall be
21 granted if:
22      (1)  The caregiver or facility requests the review within
23           twenty-four hours of the dependent adult's removal; and

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 1      (2)  The panel finds that there was no consent to the
 2           removal either under section 346-A(1) or section 346-
 3           A(2).
 4      A review shall not be granted if the dependent adult's
 5 removal was ordered by the family court.
 6      (b)  Upon receipt of a request under subsection (a), the
 7 department shall convene a review panel within five working days
 8 from the date of the request.  The panel shall be composed of:
 9      (1)  An employee of the department of human services, social
10           services division;
11      (2)  An employee of the department of health, hospitals and
12           medical facilities branch;
13      (3)  A representative from the protection and advocacy
14           system; and
15      (4)  Two operators of adult residential care homes, adult
16           day care centers, or similar institutions selected by
17           the united group home operators and the alliance of
18           residential care administrators.  The operators
19           selected shall not have any personal or business
20           relationship with, and shall not reside in the
21           district, as the term is defined in section 4-1, as the
22           caregiver or facility requesting the review.

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 1      (c)  The review panel shall determine if the caregiver or
 2 facility is entitled to a review under subsection 346(a).  If the
 3 panel determines that a review is authorized, the panel shall
 4 hear and review relevant information submitted by the parties to
 5 determine whether the removal was warranted.  The information
 6 upon which the panel shall base its determinations shall include
 7 oral or written summaries and other information pertinent to
 8 consent, and to the alleged incident.  Information shall be
 9 submitted by the department, the caregiver or facility requesting
10 the review and, if the protection and advocacy agency is involved
11 in the removal and placement, information shall be submitted by
12 the agency after interviewing the dependent adult.
13      (d)  If the review panel finds that removal of the dependent
14 adult was not warranted, the panel may order the dependent adult
15 returned to the caregiver or facility requesting the review, and
16 may award the caregiver or facility reasonable costs and fees.
17      (e)  The review panel's proceedings shall be audio taped and
18 stored with the social services division of the department of
19 human services.  Copies of the panel's findings shall be
20 distributed to:
21      (1)  The director of human services;
22      (2)  The administrator of the Oahu adult and community care
23           services branch administrator;

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 1      (3)  The caregiver or facility requesting the review; and
 2      (4)  The dependent adult or dependent adult's guardian.
 3      (f)  Except for family court proceedings brought under part
 4 X of chapter 346, all records of proceedings under this section
 5 shall be confidential and disclosure governed by section 346-
 6 225."
 7      SECTION 2.  Section 346-228, Hawaii Revised Statutes, is
 8 amended to read as follows:
 9 "    [[]346-228[]]  Action upon investigation.  Upon
10 investigation, the department shall take action toward preventing
11 further abuse and shall have the authority to do any or all of
12 the following:
13      (1)  Resolve the matter in an informal fashion as is
14           appropriate under the circumstances;
15      (2)  Resolve the matter through a review panel;
16     [(2)] (3)  Exercise its right of entry under section 346-229;
17     [(3)] (4)  Seek an order for immediate protection;
18     [(4)] (5)  Seek a temporary restraining order;
19     [(5)] (6)  File a petition with the court under this part;
20           and
21     [(6)] (7)  Seek any protective or remedial actions authorized
22           by law."

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                                     H.B. NO.859        

 1      SECTION 3.  This Act does not affect rights and duties that
 2 were matured, penalties that were incurred, and proceedings that
 3 were begun, before its effective date.
 4      SECTION 4.  In codifying the new sections added by this Act,
 5 the revisor of statutes shall substitute the appropriate section
 6 numbers for the letters used in designating the new sections in
 7 this Act.
 8      SECTION 5.  Statutory material to be repealed is bracketed.
 9 New statutory material is underscored.
10      SECTION 6.  This Act shall take effect upon its approval.
12                           INTRODUCED BY:  _______________________