Disability Community Opposition to HB 1044-Mandatory Reporting of At Risk Adults:
This bill requires a host of professionals (and exempts the CCB system) to report to Social Services or Law Enforcement instances of abuse, neglect, financial exploitation or self-neglect for “at risk” adults, or people with disabilities. The bill also authorizes social services to take guardianship of such individuals if they show signs of “impaired decision making”. This also opens professionals who serve us to prosecution and liability for damages for failure to report. While we agree that abuse and exploitation of people with disabilities is a serious problem this is the wrong solution.
Our reasons for opposition are as follows:
- People with disabilities are not children. If someone is truly incapacitated there is already a process for guardianship. If there are problems with that process we need to address those problems first.
- This bill expands the definition of guardianship--this needs to be done in the probate world. Currently the definition is the inability to effectively receive and evaluate information. This adds impaired decision making, a very subjective area. Does someone have impaired decision making if they cheat on their spouse? What about if they don’t eat three square meals a day?
- This will stop many people with disabilities from seeking care--for example a doctor will they are the guardian. There is no guarantee that the person will have adequate counsel and representation.
- We have known of many people who have called Adult Protective Services themselves when they felt at immediate risk of harm. In most of these cases APS says that they cannot help. Why are we adding to their caseload with people who don’t want intervention when they don’t have the resources to help those who are asking for help?
- We have wanted the law changed to make sure that the criminal statute regarding wrongs to at risk adults is changed to be consistent with the Americans with Disabilities Act in terms of the definition of disability. When people with disabilities are victims of crime we cannot get attention or prosecution. People with disabilities are often victims of crime but the existing statute on wrongs against at risk adults is rarely used.
- The legal representation that currently exists with guardianships for court appointed attorneys is inadequate due to the low reimbursement provided to attorneys.
- The bill requires professionals to report bruises--which are common to many people who are immobile. Self-neglect is very subjective and could be used by either over-zealous professionals or in retaliation against clients who are difficult.
- There is no protection for the people subject to these reports. Once social services or law enforcement is in one’s life the person may be subject to unreasonable control.
- This does not address the true problems inherent in abuse of at risk adults--lack of options. Often people are abused by their caregivers--if there are not options for these individuals many choose to stay in abusive or neglectful situations when the only alternative is being institutionalized.
- Adults often unfortunately don’t make good choices about relationships or about self-care--is this an issue for the government?
- There is no guarantee that if social services takes guardianship of someone that the person would not be put in an institutional setting. That is often the only way for a busy social services agency to manage someone who needs advocacy to receive services in the community.
If there is an insistence on passing this legislation we request the following amendments:
- That any adult can chose to refuse services without any negative consequences.
- If guardianship proceedings are initiated pursuant to this section that court appointed counsel will be paid their usual and customary rate or a rate set by the Colorado Bar Association as fair and equitable.
- That “impaired decision making” be struck from the legislation in terms of when a county department may seek guardianship.
- That a section be added that any service plan developed pursuant to this section must be provided in the most integrated setting appropriate to the needs of the individual. This is already a requirement of the section of the Americans with Disabilities Act that applies to services provided by state and local government.
- That anyone providing advocacy or domestic violence services is exempt. (Some individuals provide advocacy or domestic violence services are also professionals subject to this statute. There would be an ethical conflict of interest if these individuals were required to report on clients) We might also want to exempt staff and volunteers from Independent Living Centers.
- That there be a place for people to report abuse by county government officials or employees including failure to protect other than the county or local law enforcement.
- That there be an oversight advisory committee including advocates representing the elderly and disabled that has the authority to review any cases where the client complains about the process including an allegation of retaliation. This committee shall have access to all records including personnel records.
- That criminal and liability prosecution extend to anyone who makes a false report or whose actions are found to be inappropriate or over zealous by the above named committee.
Here are some real life situations of at risk adults--none of whom would be helped by this bill. All of these situations really take funds or very time intensive casework to be able to resolve the problem.
Mrs. B is a 68 year old woman with mental illness and multiple health conditions. She has a bank account with $6,000 left from her late husband and she refuses to spend these funds. She needs daily care and medication management. She is living with her adult son who is a drug abuser. There is strong evidence that he is using her money and not providing proper care. Because she is unwilling to spend the $6,000 she is not eligible for Medicaid or HCBS services. She makes bad decisions but is able to understand the consequences and chooses to live with her adult son, despite her knowledge that he is exploiting her.
Mr. P is a 45 year old man who has a rare insect infestation affecting his living situation and his health. The health department does not have a lab and the landlord has sprayed but that has not resolved the problem. He continues to deteriorate health wise and is begging for assistance. He is already on Medicaid and Medicare.
Ms. M is a 40 year old female with multiple disabilities and is a single parent. She is low income and is being evicted and needs accessible housing with very specific features. She is not able to seek housing, pack, unpack or handle the details of setting up a move without significant assistance. Medicaid has denied additional hours of care and that is currently under appeal, however the hearing will not occur before her move out date.
Ms. H is a 55 year old woman who has multiple health problems and uses a wheelchair. She also has mental health problems including mild agoraphobia. She has Medicaid. Because of her agoraphobia she cancels appointments frequently. The local BHO has denied in home services. Because she cancels appointments she has been kicked out of several mental health clinics and none of the doctors in town will see her because she does not follow through. She does not have transportation to get to medical appointments and will often argue with and insult cab drivers who do not speak English as a first language. Therefore most cab companies now refuse to serve her. Because she does not follow up and cannot get health care she has frequent care crisis and often ends up in the emergency room.
Ms. F is a 22 year old with developmental disabilities. She is from Mexico and came her illegally with her parents as a child. She was taken away from her parents by the county social services after a court determined it was the most severe case of abuse they had ever seen. She was not here legally on August 22, 1996 so is not eligible for Social Security Administration benefits. Her foster mother recently threw her out because there are no funds for her care and she could not afford to keep her. The foster mother got support from child welfare until she aged out last July. She has a green card now but there is no documentation or ability to prove that she has been here legally for five years as the green card was only obtained last year. She has no income and is not eligible for Medicaid due to her legal status.
