An Act To Clarify the Responsibilities under the Adult Protective Services Act
Maine Legislature, Session 121, LD 1765
Committee: Health and Human Services
Sponsors: NORBERT, BULL, GERZOFSKY, MILLS, MAYO
Amends: 22 MRSA §3472, 22 MRSA §3473, 22 MRSA §3474, 22 MRSA §3475, 22 MRSA §3477, 22 MRSA §3479, 22 MRSA §3479-A, 22 MRSA §3480, 22 MRSA §3480-A, 22 MRSA §3484, 22 MRSA §3485, 22 MRSA §5

Legislative Document 
No. 1765 
H.P.1287 
House of Representatives, December 22,2003 
An Act To Clarify the Responsibilities under the Adult Protective 
Services Act 
Submitted by the Department of Human Services pursuant to Joint Rule 204. 
Received by the Clerk of the House on December 17,2003. Referred to the Committee on 
Health and Human Services pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint 
Rule 401. 
Presented by Representative NORBERT of Portland. 
17/~/J?~ 
MILLICENT M. MacFARLAND 
Clerk 
Cosponsored by Representatives: BULL of Freeport, GERZOFSKY of Brunswick, MILLS of 
Farmington, Senator: MAYO of Sagadahoc. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 22 MRSA §3472, as amended by PL 2001, c. 354, §3, is 
further amended to read: 
§3412. Definitions 
As 
used in this 
chapter, 
unless 
the 
context 
indicates 
otherwise, the following terms have the following meanings. 
1. 
Abuse. 
"Abuse" 
means 
the 
infliction 
of 
injury, 
unreasonable confinement, intimidation or cruel punishment wiER 
FesQlEiB~ that causes or is likely to cause physical harm or pain 
or mental anguish; sexual abuse or sexual exploitation; or the 
will~Ql intentional, knowing or reckless deprivation of essential 
needs. 
"Abuse" includes acts and omissions. 
2. 
Adult. 
"Adult" means any person who has attained ERe 
a~e-e~ 18 years of age or who is a legally emancipated minor. 
2-A. 
Bureau. 
"Bureau" 
means 
the 
Department 
of 
Human 
Services, Bureau of Elder and Adult Services e~-ERe-~epaFEmeBE-9E 
.QamaB-SeFviees. 
3. 
Caretaker. 
"Caretaker" 
means 
any 
individual 
or 
institution who has or assumes the responsibility for the care of 
an adult. 
4. 
COlNDissioner. 
"Commissioner" means the Commissioner of 
Human Services or a designated representative in the geographical 
area in which the person resides or is present or, in the case of 
meB~ally---FeEaF~e~ 
adults 
with 
mental 
retardation, 
the 
Commissioner 
of 
Behavioral 
and 
Developmental 
Services 
or 
a 
designated representative in the geographical area in which the 
person resides or is present. 
5. 
Department. 
"Department" means either the Department of 
Human Services or, in the case of 
meBt;a11y-£et.aF~e~ adults with 
mental 
retardation, 
the 
Department 
of 
Behavioral 
and 
Developmental Services. 
6. 
Dependent adult:. 
"Dependent adult" means aBy--adu-1-&-wR9 
is-~~y-~--par~ia11y-Qe~e~Qe~t.-~-&&&-eF-~~~~r-peFseBs 
~e~-€a£e-~-~~r-&i&h&r-emeEieBal-e£-~~~7-~-w~-weQ±~ 
Be-4R-Qa~~e~-~~-~~-~~~-~r~-wer~-wi~a~FawBT an adult who 
has a physical or menta1 condition that substantially impairs the 
adult's ability to adeguately provide for that adult's daily 
needs. 
"Dependent adult" includes, but is not limited to. any of 
the following: 
Page l-LR2644(1) 
A. 
A resident of a nursing home licensed or required to be 
licensed under section 1817; 
B. 
A resident of 
a 
facility providing assisted living 
services licensed or required to be licensed pursuant to 
section 7801; or 
C. 
A person considered a dependent person under Title 17-A, 
section 555. 
7. 
Emergency. 
"Emergency" refers to a situation WHelE'e in 
which: 
A. 
The incapacitated or dependent adult is in immediate 
risk of serious harm; 
B. 
The 
incapacitated or 
consent to services wHieH 
the risk; and 
dependent 
that will 
adult is 
unable 
to 
diminish or eliminate 
C. 
There 
is 
no 
~~alE'Qiaa person 
legally authorized 
to 
consent to emergency services. 
8. 
Emergency services. 
"Emergency services" 
Fe~eF refers 
to those services necessary to avoid serious harm. 
9. 
Exploitation. 
"Exploitation" 
means 
the 
improper use of an incapacitated or dependent adult 
adult's resources for another's profit or advantage. 
illegal 
or 
or His that 
10. 
Incapacitated adult. 
"Incapacitated adult" means any 
adult 
who 
is 
impaired 
by 
reason 
of 
mental 
illness, 
mental 
deficiency, physical illness or disability to the extent that 
that individual lacks sufficient understanding or capacity to 
make 
or 
communicate 
responsible 
decisions 
concerning 
that 
individual's person, or to the extent the adult eaaae\: can not 
effectively manage or apply that individual's estate to necessary 
ends. 
11. 
Neglect. 
"Neglect" means a threat to an adult's health 
or 
welfare 
by 
physical 
or 
mental 
injury 
or 
impairment, 
deprivation of essential needs or lack of protection from these. 
12. 
Protective 
services. 
"Protective 
services" 
means 
services wHieH--will that separate incapacitated or dependent 
adults from danger. 
Protective services include, but are not 
limited to, social, medical and psychiatric services necessary to 
preserve 
the 
incapacitated 
or 
dependent 
adult's 
rights 
and 
resources and to maintain the incapacitated or dependent adult's 
physical and mental well-being. 
Protective 
services 
may 
include 
seeking 
guardianship 
or 
a 
protective order under Title 18-A, Article V ~. 
13. 
Serious hann. 
"Serious harm" means: 
A. 
Serious physical injury or impairment; 
B. 
Serious mental injury or impairmentr-whi€h that now or 
in the future is likely to be evidenced by serious mental, 
behavioral 
or 
personality 
disorder, 
including, 
but 
not 
limited 
to, 
severe 
anxiety, 
depression 
or 
withdrawal, 
untoward 
aggressive 
behavior 
or 
similar 
serious 
dysfunctional behavior; e~ 
C. 
Sexual abuse or sexual exploitationTL-Q£ 
D. 
Serious waste or dissipation of resources. 
15. 
Sexual abuse or sexual exploitation. 
"Sexual abuse or 
sexual exploitation" means contact or interaction of a 
sexual 
nature involving an incapacitated or dependent adult without that 
adult's informed consent. 
Sec. 2. 22 MRSA §3473, sub-§l, ~~A and B, as amended by PL 
1991, c. 711, §2, are further amended to read: 
A. 
Protect a~Qse4r-Re~lee~e4-e~-eKplei~e4 incapacitated and 
dependent adults from abuse, 
ne<;Jlect and exploitation and 
protect incapacitat:ed and dependent adults in circumstances 
whieh that present a substantial risk of abuse, neglect or 
exploitation; 
B. 
Prevent abuse, neglect or exploitation of incapacitated 
and dependent adu1 t.s; 
Sec. 3. 22 MRSA §3473, sub-§2, ~B, as enacted by PL 1981, c. 
527, §2, is amended to read: 
B. 
Take 
appropriate 
action, 
including 
providing 
or 
arranging for 
the provision of appropriate services 
and 
makin<;J referrals to law enforcement; and 
Sec. 4. 22 MRSA §3473, sub-§3, ~~A and B, as amended by PL 
1991, c. 711, §4, are further amended to read: 
A. 
Matters 
relating 
to 
the 
performance 
of 
duties 
in 
uncontested guardianshipr or conservatorship or termination 
of guardianShip or conservatorship proceedings; and 
" 
B. 
Requests for emergency guardianships arising from the 
need for emergency medical treatment or placement in ae\ilt: 
Ee6teE--~--~r~~--aeffie6 assisted 
living 
~rograms, 
residential care facilities or nursing aeffies facilities or 
for orders necessary to apply for or preserve an estate in 
emergency situations. 
Sec. 5. 22 MRSA §3474, sub-§2, as amended by PL 1989, c • 7, 
Pt. N, §2 and c. 858, §§6 to 8, is further amended to read: 
2. 
Optional disclosure of records. 
The 
department 
may 
disclose relevant information in the records to the following 
persons, with ~rotection for the identity of 
re~orters and other 
~ersons when a~~ro~riate: 
A. 
An 
agency 
res~onsib1e for investigating a 
report of 
adult abuse, neglect or exploitation when the investigation 
is 
authorized 
by 
statute 
or 
by 
an 
agreement 
with 
the 
department; 
B. 
An 
advocacy agency conducting an investigation under 
chapter 961, United States Public Law 88-164, Title I, Part 
C or United States Public Law 99-319, except as provided in 
subsection 3, paragraph D; 
C. 
A physician treating an incapacitated or dependent adult 
waeffi-ae who the ~hysician reasonably suspects may be abused, 
neglected or exploited; 
D. 
An incapacitated or dependent adult named in a record 
who is reported to be abused, neglected or exploitedr or the 
caretaker of the incapacitated or dependent adultr--wit:a 
pFeteetieR-~~-~~~~~~~-FepeFteFs-~£~-~~--~~~~&-WaeR 
appFepFiate; 
E. 
A 
person 
having 
the 
legal 
responsibility 
or 
authorization to care for, evaluate, treat or supervise an 
incapacitated or dependent adult; 
F. 
Any person engaged in bona fide research, provided that 
no 
personally identifying information is made 
available, 
unless it is essential to the research and the commissioner 
or the commissioner's designee gives prior approval. 
If the 
researcher desires to contact a subject of a record, the 
subject's consent must be obtained by the department prior 
to the contact; 
G. 
Persons and organizations pursuant to Title 5, section 
9057, subsection 6, and pursuant to chapter 857; aRe 
H. 
A 
relative 
by 
blood, 
marriage 
or 
adoption 
of 
an 
incapacitated or dependent adult named in a recordT; and 
I. 
A member of a panel appointed by the department or the 
Office of 
the Attorney General 
to 
review the death or 
serious injury of an incapacitated or dependent adult or a 
child. 
Sec. 6. 22 MRSA §3474. sub-§3, ,B, as amended by PL 1985, c. 
644, §2, is further amended to read: 
B. 
A court on its finding that access to those records may 
be necessary for the determination of any issue before the 
court. Access saal;l. must be limited to 
iReame~a in camera 
inspection T 
unless: 
the 
court 
determines 
that 
p~Blie 
disclosure 
of 
the 
information 
is 
necessary 
for 
the 
resolution of an issue pending before it; 
Sec. 7. 22 MRSA §3475. as amended by PL 1981, c. 705, Pt. E, 
§1, is further amended to read: 
§3475. Penalty for violations 
A person who knowingly violates a provlslon of this chapter 
commits a civil violation for which a forfeiture of not more than 
$500 may be adjudged. 
Any licensed, registered, accredited or 
certified professional 'Tho has been adjudged to have violated a 
provision 
of 
this 
chapter 
saall 
must, 
in 
addition 
to 
any 
financial penalty, be reported by the court or the department to 
the appropriate professional licensing organization, registration 
board, accrediting unit or facility. 
Sec. 8. 22 MRSA §3477, sub-§l. as amended by PL 2003, c. 145, 
§1 and c. 210, §§1 and 2, is repealed and the following enacted 
in its place: 
1. 
Report 
required. 
The 
following 
persons 
immediately 
shall report to the department when the person has reasonable 
cause to suspect that an incapaci tated or dependent adul t 
has 
been or is at substantial risk of abuse, neglect or exploitation: 
A. 
While acting in a professional capacity: 
(1) 
An allopathic or osteopathic physician; 
(2) 
A medical intern; 
(3) 
A medical examiner; 
(4) 
A physician's assistant; 
.. 
.. 
(5) 
A dentist; 
( 6 ) 
A chiropractor; 
(7) 
A podiatrist; 
( 8 ) 
A registered or licensed practical nurse; 
{ 9} 
A certified nursing assistant; 
{10} 
A social worker; 
{II} 
A psychologist; 
(12) 
A pharmacist; 
(13} 
A physical therapist; 
(14) 
A speech therapist; 
(15) 
An occupational therapist; 
(16} 
A mental health professional; 
(17) 
A law enforcement official; 
(IS} 
Emergency room personnel; 
(19) 
An ambulance attendant: 
{20} 
An emergency medical technician; 
(22) 
A 
human~ 9,gen~~~R:tQy~.Q._~b~_tc~~artment of 
Agr icul ture, Food and Rur_Q._l_ -R..e_S9JILCs!~_i--.9I 
(23) 
A C~ 
___ !lliU!lb~L~C:(l\.!:Lr iIL9~_tch~L_information as a 
reS---'J~L __ 9J __ ~ier 
i_C:i3._1n_-£~Qfess_:L91lal 
\vork 
except _ for 
information received during confidential communications; 
B. 
Any 
person 
who' has 
assumed 
full, 
intermittent 
or 
occasional responsibility for the care or custody of the 
incapacitated or dependent adult, regardless of whether the 
person receives compensation; or 
c. 
Any 
person 
affiliated 
with 
a 
church 
or 
religious 
institution who serves in an administrative capacity or has 
otherwise assumed a position of trust or responsibility to 
the members of that church or religious institution, while 
acting in that capacity, regardless of whether the person 
receives compensation. 
The duty to report under this subsection applies to individuals 
who must report directly to the department. 
A supervisor or 
administrator of a person making a report under this section may 
not impede or inhibit t.he reporting, and a person making a report 
may not be subject to any sanction for making a report. 
Internal 
procedures to facilitate, ensure confidentiality of and apprise 
supervisors and administrators of reports may be established as 
long as those procedures are no~ inconsistent with this chapter. 
Sec. 9. 22 MRSA §3477, sub-§2, as enacted by PL 1981, c. 705, 
Pt. E, §2, is amended to read: 
2. 
Reports. 
:Reports 
regarding 
abuse, 
neglect 
or 
exploitation shall must~ be made immediately by telephone to the 
department and shall must be followed by a written report within 
hours if requested by the department. 
The reports shall must 
contain the name and address of the involved adult; information 
regarding 
the 
nature 
and 
extent 
of 
the 
abuse, 
neglect 
or 
exploitation; the source of the report; the person making the 
report; his that person's occupation; and where he that person 
can be contacted. 
The report may contain any other information 
whieh that the reporter believes may be helpful. 
Sec. 10. 22 MRSA §3479, as repealed and replaced by PL 1989, 
c. 858, §12, is amended to read: 
§3479. Optional reporting 
Any person may make a report i€ to the department when that 
person ~ReW&-e~ has reasonable cause to suspect an incapacitated 
or dependent adult has been or is at substantial risk of abuse, 
neglect or exploitation e€--an--i-H€-a~a-e-i-t;.at;.e.G-e-£-~-aelalET 
e~--~--~~~--eaase---~--~~---EhaE--~--~~---is 
iReaFaeiEateel. 
Sec. 11. 22 MRSA §3479-A, sub-§I, as enacted by PL 1981, c. 
705, Pt. E, §2, is amended to read: 
1. 
Reporting and proceedings. 
A person participating in 
good faith in reportinq under this subchapter, or in a related 
adult protection investigation or proceeding, is immune from any 
civil liability that might otherwise result from these actions L 
including, but not limited to, 
any civil liability that might 
otherwise arise under state or local laws or rules regarding 
confidentiality of information. 
.. 
Sec. 12. 22 MRSA §3480, sub-§I, ,A, as enacted by PL 1981, c. 
527, §2, is amended to read: 
A. 
Issue subpoenas requiring persons to disclose or provide 
to the department information or records in their possession 
wRieR ~ 
are necessary and relevant to an investigation of 
a report of suspected abuse, neglect or exploitation or to a 
subsequent adult protective proceeding., including, but not 
limited to, health care information that is confidential 
under section 1711-C. 
(1) 
The department may apply to the District Court and 
Probate Court to enforce a 
subpoenaT-aBe~ 
(2) 
A person who complies with a subpoena is immune 
from civil or criminal liability that might otherwise 
result 
from 
the 
act 
of 
turning 
over 
or 
providing 
information or records to the department; and 
Sec. 13. 22 MRSA §3480-A is enacted to read: 
§3480-A. 
Privileged or confidential communications 
The 
husband-wife, 
physician-patient 
and 
psychotherapist-patient 
privileges 
under 
the 
Maine 
Rules 
of 
Evidence and the confidential quality of communications 
under 
section 1711-C, Title 24-A, section 4224 and Title 32, section!> 
1092-A and 7005 are abrogated in relation to required reporting, 
cooperating with the department in an investigation or other 
protective 
activity 
or 
giving 
evidence 
in 
a 
protective 
proceeding. 
Information released to the department pursuant to 
this section must be kept confidential and may not be disclosed 
by the department except as provided in section 3474. 
A statement made to a licensed mental.health professional in 
the course of counseling, therapy or evaluation in a case In 
which a privilege is abrogated under this section may not be used 
against the client in a criminal proceeding except to rebut the 
client's testimony contradicting that statement. 
This section 
does not limit any responsibilities of the professional pursuant 
to this Act. 
Sec. 14. 22 MRSA §3484. as enacted by PL 1981, c. 527, §2, is 
amended to read: 
§3484. Payment for protective services 
At the time the department makes an evaluation of the case 
reported, it sRa;!,;!, must be determined, according to regulations 
set by the commissioner, whether the incapacitated or dependent 
adult 
is 
financially 
capable 
of 
paying 
for 
the 
essential 
services. 
To 
the 
extent 
that 
assets 
are 
available 
to 
the 
incapacitated or 
dependent 
aa~~tsr--e~--wa~as adult, 
ward 
or 
protected person, the cost of services sRa~~ ~ 
be borne by the 
estate of ~e~seBs the person receiving those services. 
Sec. 15. 22 MRSA §3485, as amended by PL 1995, c. 183, §1, is 
further amended to read: 
§3485. Reportinq abuse 
Upon finding evidence indicating that a person has abused 
e~.L neglected or exploited an incapacitated or dependent adult, 
resulting in serious harm, 
e~-~~~~~~-aB--~it~~-e~ 
ae~eBaeB~--aa~~tr the 
department 
shall 
notify 
the 
district 
attorney or law enforcement agency. 
Sec. 16. 22 MRSA c. 958-A, sub-c. 3, as enacted by PL 1983, c. 
575, §1, is repealed. 
Sec. 17. 22 MRS A c. 958-A. sub-c. 4 is enacted to read: 
SUBCHAPTER 4 
§3493. 
Rules 
The department may adopt rules in accordance with Title 5, 
chapter 375, subchapter :2-A to carry out this chapter. 
Sec. 18. 22 MRSA §5:I06, sub-§ll-B. as enacted by PL 1989, c. 
329, §16, is amended to :read: 
II-B. 
Adult protective services. 
Administer a program of 
protective services as provided in chapter 958-A designed to 
protect incapacitated and dependent adults, other than adults who 
are mentally retarded, 
from 
abuse, 
neglect, 
exploitation and 
physical 
danger. 
The 
program 
is 
described 
in 
the 
Adul t 
Protective Services Act r -seetieBs-i411-te-i493; 
SUMMARY 
This bill clarifies the reporting requirements under the 
Adult 
Protective 
Services 
Act 
by 
making 
the 
reporting 
requirements 
individual 
to 
the 
reporter, 
similar 
to 
the 
requirements that currently exist for the reporting of abuse, 
neglect and exploitation in facilities. 
This bill also clarifies 
the relationship between the Adult Protective Services Act and 
• 
.. 
other state and local laws regarding confidential or privileged 
information and specifies the types of information the department 
may 
receive 
as 
part 
of 
an 
investigation 
or 
protective 
proceeding. 
Some 
definitions, 
including 
the 
definition 
of 
"dependent 
adult," 
have 
been 
revised 
to better 
reflect 
the 
population served by the Adult Protective Services Act . 
Page lO-LR2644(1)