An Act To Amend the Adult Protective Services Act
Maine Legislature, Session 121, LD 1606
Committee: Judiciary
Sponsors: PENDLETON, BRYANT-DESCHENES, BULL, CAMPBELL, NORBERT, WALCOTT
Amends: 22 MRSA §3471, 22 MRSA §3473, 22 MRSA §3474, 22 MRSA §3475, 22 MRSA §3476, 22 MRSA §3477, 22 MRSA §3479, 22 MRSA §3479-A, 22 MRSA §3480, 22 MRSA §3480-A, 22 MRSA §3481, 22 MRSA §3484, 22 MRSA §3485, 22 MRSA §3486

Legislative Document 
No. 1606 
S.P.560 
In Senate, May 7, 2003 
An Act To Amend the Adult Protective Services Act 
Submitted by the Department of Human Services pursuant to Joint Rule 204. 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Senator PENDLETON of Cumberland. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Representative BRYANT -DESCHENES of Turner and 
Representatives: BULL of Freeport, CAMPBELL of Newfield, NORBERT of Portland, 
WALCOTT of Lewiston. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 22 MRSA §3471, as amended by PL 1991, c. 711, §l, is 
further amended to read: 
§347I. 
Declaration of policy and legislative intent 
The Legislature recognizes that many adult citizens of the 
State, because of incapacitation or aepeBaeBey vulnerability, are 
unable to manage their own affairs or to protect themselves from 
abuse, neglect or exploitation. Often these persons 
eaBBe~ can 
not 
find others 
able 
or willing to 
render 
assistance. 
The 
Legislature intends, through this Act, to establish a program of 
protective services designed to fill this need and to ass\,u:e 
ensure 
its availability 
to 
all 
incapacitated 
and 
aepeBaeB~ 
vulnerable adults who are faced with abuse, neglect, exploitation 
or the substantial risk of abuse, neglect or exploitation. It is 
also the intent of the Legislature to authorize only the least 
possible restriction on the exercise of personal and civil rights 
consistent with the person's need for services. and to require 
that due process be followed in imposing those restrictions. 
Sec. 2. 22 MRS A §3472, as amended by PL 2001, c. 354, §3, is 
further amended to read: 
§3472. 
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 wiU! 
~es~±~iB~ that causes or is likely to cause physical harm or pain 
or mental anguish; sexual abuse or sexual exploitation; or the 
wi±±f~± intentional, knowing or reckless deprivation of essential 
needs. 
"Abuse" includes acts and omissions. 
2. 
Adult. 
"Adult" means any person who has attained the 
age of 18 years or who is a legally emancipated minor. 
2-A. 
Bureau. 
"Bureau" means the Bureau of Elder and Adult 
Services of the Department of Human Services. 
3. 
Caretaker. 
"Caretaker" 
means 
any 
individual 
or 
institution who has or assumes the responsibility for the care of 
an adult. 
4. 
Conmissioner. 
"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 
Page l-LR1946(1) 
meB6ally---£eta£eee 
adults 
Commissioner 
of 
Behavioral 
designated representative in 
person resides or is present. 
with 
mental 
retardation, 
the 
and 
Developmental 
Services 
or 
a 
the geographical area in which the 
5. 
Department. 
"Department" means either the Department of 
Human Services or, in the case of meB6ally-£e-t;:a£eee adults with 
mental 
retardation, 
the 
Department 
of 
Behavioral 
and 
Developmental Services. 
fi ... --DepeBdeBt;-adu.lt; ... --.!.'f)epeBQeB-t;:--aEkH-t..!.'--mean&-~-aEh.J:.1;-whe 
is-~~y-~-paF6ially-QepeBQeB~-~~B&-e£-~~~~~-pe£seBs 
~eF-€a£e-~-~~r-&i1;h&F-emetieBal-e£-~~~-~-wh&-weale 
ae-iB-eaB~eF-i~-taa6-eaFe-eF-sappeF6-weFe-wi6aeFawBT 
7. 
which: 
Emerqency. 
"Emergency" refers to a situation waeFe in 
A. 
The incapacitated ~ 
or eepeBeeB6 vulnerable adult is 
in immediate risk of serious harm; 
B. 
The incapacitated ~ 
or eepeBeeB6 vulnerable adult is 
unable to consent to services whieh .th£.t will diminish or 
eliminate the risk; and 
C. 
There 
is 
no 
~aaFeiaB person 
legally authorized 
to 
consent to emergency services. 
8. 
Emerqency services. 
"Emergency services" 
Fe~eF refers 
to those services necessary to avoid serious harm. 
9. 
Exploitation. 
"Exploitation" 
means 
the 
illegal 
or 
improper use of an incapacitated adult or eepeBeeBt a vulnerable 
adult or his that adult's resources for another's profit or 
advantage. 
10. 
Incapacitated adult. 
"Incapacitated adult" means any 
aealt person who is impaired by reason of mental illness, mental 
deficiency, physical illness or disability, chronic use of drugs, 
chronic intoxication or other cause except minority to the extent 
that that iBeivieaal person lacks sufficient understanding or 
capacity to make or communicate responsible decisions concerning 
that iBeivieaal.!.s person's person, or to the extent the aealt 
person 
eaBBet 
can 
not 
effectively 
manage 
or 
apply 
that 
iBeivieaal.!.s person's estate to necessary ends. 
11. 
Neqlect. 
"Neglect" means a threat to an adul t 's heal th 
or 
welfare 
by 
physical 
or 
mental 
injury 
or 
impairment, 
deprivation of essential needs or lack of protection from these. 
"Neglect" includes self neglect. 
12. 
Protective 
services. 
"Protective 
services" 
means 
services 
wBieB--wi~~ ~ 
separate 
incapacitated 
adults 
or 
aepeaaeas vulnerable adults 
from danger. 
Protective services 
include, but are not limited to, social, medical and psychiatric 
services 
necessary 
to 
preserve 
the 
incapacitated adult's 
or 
aepeaaeas vulnerable adult's rights and resources and to maintain 
the 
incapacitated 
adult's 
or 
aepeaaeas 
vulnerable 
adult's 
physical and mental well-being. 
Protective 
services 
may 
include 
seeking 
guardianship 
or 
a 
protective order under Title l8-A, Article V ~. 
12-A. 
Self-neglect. 
"Self-neglect" means neglect that is a 
result of an incapacitated adult's or vulnerable adult's own 
actions or failure to perform or obtain services necessary for 
that adult's care or support. 
13. 
Serious harm. 
"Serious harm" means: 
A. 
Serious physical injury or impairment; 
B. 
Serious mental injury or impairment T -wh4eB 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; SF 
C. 
Sexual abuse or sexual exploitationTL-QI 
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 adult or eepeaeeas a vulnerable 
adult without that adult's informed consent. 
16. 
Vulnerable adult. 
"Vulnerable adult" means an adult 
who has a physical or mental condition that substantially impairs 
the 
adult 
from 
adequately providing 
for 
that adult's daily 
needs. 
"Vulnerable adult" includes, but is not limited to, any 
of the following: 
A. 
An incapacitated adult; 
B. 
A resident of a nursing facility licensed or required to 
be licensed under section 1817; 
C. 
A resident of 
a 
facility providing assisted living 
services licensed or required to be licensed pursuant to 
section 7801; or 
D. 
A person described as a dependent person in Title l7-A, 
section 555. 
Sec. 3. 22 MRSA §3473, as amended by PL 1991, c. 711, §§2 to 
4, is further amended to read: 
§3473. 
Authorizations 
1. 
General. 
The department shall act to: 
A. 
Protect 
aa~seer-~1&Gt~-~--eKp19ieee incapacitated 
adults and eepeaeeae vulnerable adults from abuse, neglect 
or 
exploitation 
and 
protect 
incapacitated 
adults 
and 
eepeaeeae 
vulnerable 
adults 
in circumstances 
whieh 
that 
present 
a 
substantial 
risk 
of 
abuse, 
neglect 
or 
exploitation; 
B. 
Prevent abuse, neglect or exploitation of incapacitated 
adults and vulnerable adults; 
C. 
Enhance the welfare of these incapacitated adults and 
eepeaeea~ vulnerable adults; and 
D. 
Promote self-care wherever possible. 
2. 
Reports. 
The department shall: 
A. 
Receive, promptly investigate and determine the validity 
of reports of alleged abuse, neglect or exploitation or the 
substantial risk of abuse, neglect or exploitation; 
B. 
Take 
appropriate 
action, 
including 
providing 
arranging for 
the provision of appropriate services 
making referrals to law enforcement; and 
or 
and 
C. 
Petition for guardianship or a protective order under 
Title 
l8-A, 
Article 
5, 
when 
all 
less 
restrictive 
alternatives have been tried and have failed to protect the 
incapacitated adult. 
3. 
Appearance of designated employees 
The commissioner may designate employees of 
represent the department in Prob9te Court in: 
in Probate Court. 
the department to 
A. 
Matters 
relating 
to 
the 
performance 
of 
duties 
in 
uncontested guardianshipT QX'. conservatorship or termination 
of guardianship or conservatorship proceedings; and 
B. 
Requests for emergency guardianships 
ar~s~ng from the 
need for emergency medical treatment or placement in aal:i±t 
festeF--hemesT--aeaFaia~--hemes--eF--al:iFSia~--hemes assisted 
living programs, 
residential 
care facilities 
or 
nursing 
facilities or for orders necessary to apply for or preserve 
an estate in emergency situations. 
Sec. 4. 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 
disclose relevant information 
persons, with protection for 
persons when appropriate: 
of records. 
The 
department 
may 
in the records to the following 
identity of reporters 
and other 
A. 
An 
agency responsible 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 adult or aepeaaent 
a 
vulnerable adult whem--he 
who 
the physician reasonably 
suspects may be abused, neglected or exploited; 
D. 
An incapacitated adult or aepeaaeat a vulnerable adult 
named in a record who is reported to be abused, neglected or 
exploi ted, or the caretaker of the incapacitated adul t 
or 
aepeaaeat vulnerable adultT-wi~£-~~~~~-f~--1G~~~i~~-ef 
FepeFteFs-aaa-etheF-peFsens-whea-appFepFiate; 
E. 
A 
person 
having 
the 
legal 
responsibility 
or 
authorization to care for, evaluate, treat or supervise an 
incapacitated adult or aepeaaent a vulnerable 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; ana 
H. 
A relative 
by 
blood, 
marriage 
or 
adoption 
of 
an 
incapacitated adult or aepeRaeR~ a vulnerable adult named in 
a record ... ~ 
I. 
A member of a panel appointed by the department or the 
Department of the Attorney General to review deaths or 
serious injuries of an incapacitated adult or a vulnerable 
adult or a child. 
Sec. 5. 22 MRS A §3474, sub-§3, 1[A, as enacted by PL 1981, c. 
527, §2, is amended to read: 
A. 
The guardian ad litem of an incapacitated adult or 
aepeRaeR~ a 
vulnerable adult named in a 
record who 
is 
reported to be abused, neglected or exploited; 
Sec. 6. 22 MRSA §3474, sub-§3, 1[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 shall must be limited to iReameFa in camera 
inspection r 
unless 
the 
court 
determines 
that 
pYBlie 
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, 
§l, is further amended to read: 
§3475. 
Penalty for violations 
A person who knowingly violates a 
prov~s~on 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 who has been adjudged to have violated a 
provision 
of 
this 
chapter 
shall 
must, 
in 
addition 
to 
any 
financial penalty, be reported by the court or the department to 
the 
appropriate 
professional 
licensing, 
registration 
board, 
accrediting unit or facility. 
Sec. 8. 22 MRSA §3476, as enacted by PL 1981, c. 527, §2, is 
amended to read: 
§3476. 
Spiritual treatment 
1. 
Treatment not considered abuse, neglect or exploitation. 
An incapacitated adult or aepeRaeR~ a vulnerable adult shall may 
not be considered to be abused, neglected or exploited solely 
because 
treatment 
is 
by 
spiritual 
means 
by 
an 
accredited 
practitioner of a recognized religious organization. 
2. Treatment to be considered if requested. 
When medical 
treatment 
is 
authorized r 
under 
this 
chapter, 
treatment 
by 
spiritual means by an accredited practitioner of a 
recognized 
religious organization may also be considered if requested by the 
incapacitated ~ 
or aisaalea vulnerable adult or his that 
adult's caretaker. 
Sec. 9. 22 MRSA §3477, sub-§l, as repealed and replaced by PL 
2001, c. 345, §3, is amended to read: 
1. 
Report 
required. 
The 
following 
persons 
immediately 
shall report eF-€a~5e-~~~~-~~-ge-maae to the department when 
the person sHs~eets-~ha~-~-aGa~&-has-~eB-~,-~~~-eF 
eH~.l9it,eG-aaa has reasonable cause to suspect that the--adu-l-t--is 
iaea~aeitatee-eF-aereaaeBt an incapacitated adult or a vulnerable 
adult 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; 
(11) 
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; 
~18}--A-ee:r;:eRe:r;:f 
(19) 
Emergency room personnel; 
(20) 
An ambulance attendant; 
(21) 
An emergency medical technician; or 
(22) 
Unlicensed assistive personnel; or 
B. 
Any other person who has assumed full, intermittent or 
occasional responsibility for the care or custody of the 
adult, whether or not the person receives compensation. 
WheReve:r;:-a-~~~~~~~i£~-~-:r;:epe:r;:~-a6-~~-~~-~h&-s~a~~ 
e~-a-~~~-~~~-e~-p£iva~e-~~~~~~~-~~F-~aeili~YT 
~he-6~a~~-~~-~iat~~-&ha~~-ffiake-a-~~~-~~~~-~-~he 
Elepa:r;:~ffieR~T 
The 
duty 
to 
report 
under 
this 
section 
is 
individual. 
A 
supervisor or administrator of a person making a report under 
this section may not impede or inhibit the 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, provided those procedures are not 
inconsistent with this chapter. 
Sec. 10. 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 I s occupation; and where he that person 
can be contacted. 
The report may contain any other information 
whieh the reporter believes may be helpful. 
Sec. 11. 22 MRSA §3479, as repealed and replaced by PL 1989, 
c. 858, §12, is amended to read: 
§3479. Optional reportinq 
Any person may make a report it to the de~artment when that 
person *aew&-e~ has reasonable cause to suspect an inca~acitated 
adult or vulnerable adult has been or is at substantial risk of 
abuse, neglect or exploi tation 
et--an--j,.:aeapaeitatee.-~--ElepeBe.eat 
ae.Q±tT-~~-~-~~~-€a~£e--te--&~&peG~-~~---an--a£~~~--is 
iaeapaeitatee.. 
Sec. 12. 22 MRSA §3479-A, sub-§I, as enacted by PL 1981, c. 
705, Pt. E, §2, is amended to read: 
1. 
Reportinq and proceedinqs. 
A person participating in 
good faith in reporting 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 
other 
state or 
local 
laws 
or 
rules 
regarding confidentiality of information. 
Sec. 13. 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 
wsies that 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 l71l-C: 
(1) 
The department may apply to the District Court and 
Probate Court to enforce a subpoena: and 
(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. 14. 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 
Title 22, section 1711; Title 24-A, section 4224; and Title 32, 
sections 1092-A and 7005, are abrogated in relation to required 
reporting, cooperating with the department in an investigation or 
other protective activity or g1v1ng 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. 
Nothing in this 
section 
may 
limit 
any 
responsibilities 
of 
the 
professional 
pursuant to this Act. 
Sec. 15. 22 MRSA §3481, first" as enacted by PL 1981, c. 527, 
§2, is amended to read: 
When it has been determined that an incapacitated adult or 
EiepeaEieat; a vulnerable adult is in need of protective services, 
the 
department 
shall 
immediately 
provide 
or 
arrange 
for 
protective services, provided that the adult consents. 
Sec. 16. 22 MRSA §3481, sub-§l, as enacted by PL 1981, c. 527, 
§2, is amended to read: 
1. 
Consent. 
If 
an 
incapacitated 
vulnerable adult does not consent to the 
services, or if He 
-",t""h""a..."t,----",a=d=u=l,-",t 
withdraws 
sHa±± may not be provided. 
adult 
or 
EiepeaEieat; 
Q 
receipt of protective 
consent, 
the service 
Sec. 17. 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 SHa±± must be determined, according to regulations 
set by 
the 
commissioner, 
whether the 
incapacitated adult or 
EiepeaEieat; vulnerable adult is financially capable of paying for 
the essential services. To the extent that assets are available 
to the incapacitated adult or 
EiepeaEieat;-aEi~±t;s vulnerable adult, 
eF-w-a-£e.S ward or protected person, the cost of services SHa;!,;!, 
must be borne by the estate of peFseas a person receiving those 
services. 
Sec. 18. 22 MRSA §3485, as amended by PL 1995, c. 183, §1, is 
further amended to read: 
§3485. 
Reporting abuse 
upon finding evidence indicating that a person has abused 
e~L neglected or exploited an incapacitated ~ 
or aepeBaeB~ ~ 
vulnerable adult, resulting in serious harm, e~-~~~it~-aB 
iBeapaei~a~ea-e~-aepeaaea~-aaQltT the department shall notify the 
district attorney or law enforcement agency. 
Sec. 19. 22 MRSA §3486, as enacted by PL 1981, c. 527, §2, 1S 
amended to read: 
§3486. 
Cooperation 
All other state and local agencies 
as well 
agencies 
receiving 
public 
funds 
shall 
cooperate 
department 
in 
rendering 
protective 
services 
on 
incapacitated adults and aepeaaeat vulnerable adults. 
as private 
with 
the 
behalf 
of 
Sec. 20. 22 MRSA c. 958-A, sub-c. 3 is amended by repealing the 
subchapter headnote and enacting the following in its place: 
SUBCHAPTER 3 
RULES 
Sec. 21. 22 MRSA §§3488 to 3491, as enacted by PL 1983, c. 
575, §1, are repealed. 
SUMMARY 
This bill makes the reporting requirements under the Adult 
Protective Services Act individual to the reporter. 
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 types of 
information the Department of Human Services may receive as part 
of 
an 
investigation 
or 
protective 
proceeding. 
The 
term 
"dependent 
adult" 
has 
been 
replaced 
throughout 
the 
Adult 
Protective Services Act by the term "vulnerable adult." 
Page ll-LRI946(1}