Modifies provisions relating to abuse and neglect of certain persons

EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 1482
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR HENDERSON.
6137S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 192.2200, 192.2400, 192.2475, 192.2490, 192.2495, 192.2500, 198.006,
198.070, and 208.912, RSMo, and to enact in lieu thereof twelve new sections relating
to abuse and neglect of certain persons, with penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 192.2200, 192.2400, 192.2475, 1
192.2490, 192.2495, 192.2500, 198.006, 198.070, and 208.912, 2
RSMo, are repealed and twelve new sections enacted in lieu 3
thereof, to be known as sections 192.2200, 192.2256, 192.2257, 4
192.2400, 192.2475, 192.2490, 192.2495, 192.2500, 197.550, 5
198.006, 198.070, and 208.912, to read as follows:6
192.2200. As used in sections 192.2200 to [192.2260] 1
192.2275, unless the context clearly indicates otherwise, 2
the following terms mean: 3
(1) "Abuse", the infliction of physical, sexual, or 4
emotional injury or harm, including financial exploitation 5
by any person, firm, or corporation; 6
(2) "Adult", an individual over the age of eighteen; 7
(3) "Adult day care program", a group program designed 8
to provide care and supervision to meet the needs of 9
functionally impaired adults for periods of less than twenty- 10
four hours but more than two hours per day in a place other 11
than the adult's own home; 12
(4) "Adult day care provider", the person, 13
corporation, partnership, association or organization 14
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legally responsible for the overall operation of the adult 15
day care program; 16
(5) "Department", the department of health and senior 17
services; 18
(6) "Financial exploitation", when a person knowingly 19
obtains control over the property of a participant with the 20
intent to deprive the participant of the use, benefit, or 21
possession of his or her property, thereby benefitting the 22
offender or detrimentally affecting the participant by means 23
of: 24
(a) Deceit; 25
(b) Coercion; 26
(c) Creating or confirming another person's impression 27
that is false and that the offender does not believe to be 28
true; 29
(d) Failing to correct a false impression that the 30
offender previously has created or confirmed; 31
(e) Preventing another person from acquiring 32
information pertinent to the disposition of the property 33
involved; 34
(f) Selling or otherwise transferring or encumbering 35
property, or failing to disclose a lien, adverse claim, or 36
other legal impediment to the enjoyment of the property, 37
whether such impediment is or is not valid or is or is not a 38
matter of official record; 39
(g) Promising performance that the offender does not 40
intend to perform or knows will not be performed. Failure 41
to perform on its own shall not be sufficient evidence to 42
prove that the offender did not intend to perform; or 43
(h) Undue influence, which means the use of influence 44
by someone who exercises authority over a participant in 45
order to take unfair advantage of that person's vulnerable 46
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state of mind, neediness, pain, or agony. Undue influence 47
includes, but is not limited to, the improper or fraudulent 48
use of a power of attorney, guardianship, conservatorship, 49
or other fiduciary authority; 50
(7) "Functionally impaired adult", an adult who by 51
reason of age or infirmity requires care and supervision; 52
[(7)] (8) "License", the document issued by the 53
department in accordance with the provisions of sections 54
192.2200 to [192.2260] 192.2275 to an adult day care program 55
which authorizes the adult day care provider to operate the 56
program in accordance with the provisions of sections 57
192.2200 to [192.2260] 192.2275 and the applicable rules 58
promulgated pursuant thereto; 59
(9) "Neglect", the failure to provide, by those 60
responsible for the care, custody, and control of a 61
participant in an adult day care program, the services that 62
are reasonable and necessary to maintain the physical and 63
mental health of the participant, when such failure presents 64
either an imminent danger to the health, safety, or welfare 65
of the participant or a substantial probability that death 66
or serious physical harm would result; 67
[(8)] (10) "Operator", any person licensed or required 68
to be licensed under the provisions of sections 192.2200 to 69
[192.2260] 192.2275 in order to establish, conduct, or 70
maintain an adult day care program; 71
[(9)] (11) "Participant", a functionally impaired 72
adult who is enrolled in an adult day care program; 73
[(10)] (12) "Person", any individual, firm, 74
corporation, partnership, association, agency, or an 75
incorporated or unincorporated organization regardless of 76
the name used; 77
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[(11)] (13) "Related", any of the following by blood, 78
marriage or adoption: parent, child, grandchild, brother, 79
sister, half-brother, half-sister, stepparent, uncle, aunt, 80
niece, nephew, or first cousin; 81
[(12)] (14) "Staff participant ratio", the number of 82
adult care staff required by the department in relation to 83
the number of adults being cared for by such staff; 84
[(13)] (15) "Substantial noncompliance", any violation 85
of a class I or class II standard or twenty or more 86
violations of class III standards. 87
192.2256. 1. When any advanced emergency medical 1
technician; adult day care worker; bank personnel; 2
chiropractor; Christian Science practitioner; coroner; 3
dentist; embalmer; emergency medical technician; employee of 4
the departments of social services, mental health, or health 5
and senior services; employee of a local area agency on 6
aging or an organized area agency on aging program; 7
firefighter; first responder, as defined in section 8
192.2405; funeral director; home health agency or home 9
health agency employee; hospital and clinic personnel 10
engaged in examination, care, or treatment of persons; in- 11
home services owner, provider, operator, or employee; law 12
enforcement officer; long-term care facility administrator 13
or employee; medical examiner; medical resident or intern; 14
mental health professional; minister; nurse; nurse 15
practitioner; optometrist; other health practitioner; 16
paramedic; peace officer; pharmacist; physical therapist; 17
physician; physician's assistant; podiatrist; probation or 18
parole officer; psychologist; social worker; or other person 19
with the care of a person sixty years of age or older or an 20
eligible adult, as defined in section 192.2400, has 21
reasonable cause to believe that a participant of an adult 22
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day care program has been abused or neglected, he or she 23
shall immediately report or cause a report to be made to the 24
department. 25
2. The report shall contain the name and address of 26
the adult day care program, the name of the participant, 27
information regarding the nature of the abuse or neglect, 28
the name of the complainant, and any other information that 29
may be helpful in an investigation. 30
3. Any person required in subsection 1 of this section 31
to report or cause a report to be made to the department who 32
knowingly fails to make a report within a reasonable time 33
after the act of abuse or neglect as required in this 34
section is guilty of a class A misdemeanor. 35
4. In addition to the penalties imposed by this 36
section, any adult day care operator who knowingly conceals 37
any act of abuse or neglect resulting in death or serious 38
physical injury, as defined in section 556.061, is guilty of 39
a class E felony. 40
5. In addition to those persons required to report 41
pursuant to subsection 1 of this section, any other person 42
having reasonable cause to believe that a participant has 43
been abused or neglected may report such information to the 44
department. 45
6. Upon receipt of a report, the department shall 46
initiate an investigation within twenty-four hours and, as 47
soon as possible during the course of the investigation, 48
shall notify the participant's next of kin or responsible 49
party of the report and the investigation and further notify 50
them whether the report was substantiated or 51
unsubstantiated, unless such person is the alleged 52
perpetrator of the abuse or neglect. As provided in section 53
192.2425, substantiated reports of elder abuse shall be 54
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promptly reported by the department to the appropriate law 55
enforcement agency and prosecutor. 56
7. Reports, including investigation records, shall be 57
confidential, as provided under section 192.2500. 58
8. Anyone, except any person who has abused or 59
neglected a participant in an adult day care program, who 60
makes a report under this section or who testifies in any 61
administrative or judicial proceeding arising from the 62
report shall be immune from any civil or criminal liability 63
for making such a report or for testifying except for 64
liability for perjury, unless such person acted negligently, 65
recklessly, in bad faith, or with malicious purpose. It is 66
an offense under section 565.189 for any person to knowingly 67
file a false report of elder abuse or neglect. 68
9. Within five working days after a report required to 69
be made under this section is received, the person making 70
the report shall be notified in writing of its receipt and 71
of the initiation of the investigation. 72
10. No person who directs or exercises any authority 73
in an adult day care program shall evict, harass, dismiss, 74
or retaliate against a participant or employee because such 75
participant or employee or any member of such participant's 76
or employee's family has made a report of any violation or 77
suspected violation of laws, ordinances, or regulations 78
applying to the adult day care program that the participant, 79
the participant's family, or an employee has reasonable 80
cause to believe has been committed or has occurred. 81
Through the existing department information and referral 82
telephone contact line, participants, their families, and 83
employees of an adult day care program shall be able to 84
obtain information about their rights, protections, and 85
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options in cases of harassment, dismissal, or retaliation 86
due to a report being made under this section. 87
11. Any person who abuses or neglects a participant of 88
an adult day care program is subject to criminal prosecution 89
under section 565.184. 90
12. The department shall maintain the employee 91
disqualification list and place on the employee 92
disqualification list the names of any persons who are or 93
have been employed in any adult day care program and who 94
have been finally determined by the department under section 95
192.2490 to have knowingly or recklessly abused or neglected 96
a participant. A person acts "knowingly" with respect to 97
the person's conduct when a reasonable person should be 98
aware of the result caused by his or her conduct. A person 99
acts "recklessly" when the person consciously disregards a 100
substantial and unjustifiable risk that the person's conduct 101
will result in serious physical injury and such disregard 102
constitutes a gross deviation from the standard of care that 103
a reasonable person would exercise in the situation. 104
13. The timely self-reporting of incidents to the 105
central registry by an adult day care program shall continue 106
to be investigated in accordance with department policy, and 107
shall not be counted or reported by the department as a hot- 108
line call but rather a self-reported incident. If the self- 109
reported incident results in a regulatory violation, such 110
incident shall be reported as a substantiated report. 111
192.2257. 1. Any person having reasonable cause to 1
believe that a misappropriation of a participant of an adult 2
day care program's property or funds has occurred shall 3
report such information to the department. 4
2. For each report the department shall attempt to 5
obtain the names and addresses of the adult day care 6
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program, the employee of the adult day care program, the 7
participant of the adult day care program, information 8
regarding the nature of the misappropriation, the name of 9
the complainant, and any other information that may be 10
helpful in an investigation. 11
3. Any adult day care program or adult day care 12
program employee who puts to his or her own use or the use 13
of the adult day care program or otherwise diverts from the 14
adult day care program participant's use any personal 15
property or funds of the adult day care program participant 16
is guilty of a class A misdemeanor. 17
4. Upon receipt of a report, the department shall 18
initiate an investigation and report information gained from 19
such investigation to appropriate law enforcement 20
authorities. 21
5. If the investigation indicates probable 22
misappropriation of property or funds of an adult day care 23
program participant, the investigator shall refer the 24
complaint together with the investigator's report to the 25
department director or the director's designee for 26
appropriate action. 27
6. Reports, including investigation records, shall be 28
confidential, as provided under section 192.2500. 29
7. Anyone, except any person participating in or 30
benefitting from the misappropriation of funds, who makes a 31
report under this section or who testifies in any 32
administrative or judicial proceeding arising from the 33
report shall be immune from any civil or criminal liability 34
for making such a report or for testifying except for 35
liability for perjury, unless such person acted negligently, 36
recklessly, in bad faith, or with malicious purpose. 37
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8. Within five working days after a report required to 38
be made under this section is received, the person making 39
the report shall be notified in writing of its receipt and 40
of the initiation of the investigation. 41
9. No person who directs or exercises any authority in 42
an adult day care program shall harass, dismiss, or 43
retaliate against an adult day care program participant or 44
employee because he or she or any member of his or her 45
family has made a report of any violation or suspected 46
violation of laws, ordinances, or regulations applying to 47
the adult day care program or any adult day care program 48
employee that he or she has reasonable cause to believe has 49
been committed or has occurred. 50
10. The department shall maintain the employee 51
disqualification list and place on the employee 52
disqualification list the names of any persons who are or 53
have been employed by an adult day care program and who have 54
been finally determined by the department under section 55
192.2490 to have misappropriated any property or funds of an 56
adult day care program participant and who came to be known 57
to the person, directly or indirectly, while employed by an 58
adult day care program. 59
192.2400. As used in sections 192.2400 to 192.2505, 1
the following terms mean: 2
(1) "Abuse", the infliction of physical, sexual, or 3
emotional injury or harm, including financial exploitation 4
by any person, firm, or corporation and bullying; 5
(2) "Bullying", intimidation or harassment that causes 6
a reasonable person to fear for his or her physical safety 7
or property and may consist of physical actions including 8
gestures; cyberbullying; oral, electronic, or written 9
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communication; and any threat of retaliation for reporting 10
of such acts; 11
(3) "Court", the circuit court; 12
(4) "Department", the department of health and senior 13
services; 14
(5) "Director", director of the department of health 15
and senior services or his or her designees; 16
(6) "Financial exploitation", when a person knowingly 17
obtains control over the property of an eligible adult with 18
the intent to deprive the eligible adult of the use, 19
benefit, or possession of his or her property, thereby 20
benefitting the offender or detrimentally affecting the 21
eligible adult by: 22
(a) Deceit; 23
(b) Coercion; 24
(c) Creating or confirming another person's impression 25
that is false and that the offender does not believe to be 26
true; 27
(d) Failing to correct a false impression that the 28
offender previously has created or confirmed; 29
(e) Preventing another person from acquiring 30
information pertinent to the disposition of the property 31
involved; 32
(f) Selling or otherwise transferring or encumbering 33
property or failing to disclose a lien, adverse claim, or 34
other legal impediment to the enjoyment of the property, 35
whether such impediment is or is not valid or is or is not a 36
matter of official record; 37
(g) Promising performance that the offender does not 38
intend to perform or knows will not be performed. Failure 39
to perform on its own shall not be sufficient evidence to 40
prove that the offender did not intend to perform; or 41
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(h) Undue influence, which means the use of influence 42
by someone who exercises authority over an eligible adult in 43
order to take unfair advantage of that person's vulnerable 44
state of mind, neediness, pain, or agony. Undue influence 45
includes, but is not limited to, the improper or fraudulent 46
use of a power of attorney, guardianship, conservatorship, 47
or other fiduciary authority; 48
(7) "Eligible adult", a person sixty years of age or 49
older who is unable to protect his or her own interests or 50
adequately perform or obtain services which are necessary to 51
meet his or her essential human needs or an adult with a 52
disability, as defined in section 192.2005, between the ages 53
of eighteen and fifty-nine who is unable to protect his or 54
her own interests or adequately perform or obtain services 55
which are necessary to meet his or her essential human needs; 56
[(7)] (8) "Home health agency", the same meaning as 57
such term is defined in section 197.400; 58
[(8)] (9) "Home health agency employee", a person 59
employed by a home health agency; 60
[(9)] (10) "Home health patient", an eligible adult 61
who is receiving services through any home health agency; 62
[(10)] (11) "In-home services client", an eligible 63
adult who is receiving services in his or her private 64
residence through any in-home services provider agency; 65
[(11)] (12) "In-home services employee", a person 66
employed by an in-home services provider agency; 67
[(12)] (13) "In-home services provider agency", a 68
business entity under contract with the department or with a 69
Medicaid participation agreement, which employs persons to 70
deliver any kind of services provided for eligible adults in 71
their private homes; 72
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[(13)] (14) "Least restrictive environment", a 73
physical setting where protective services for the eligible 74
adult and accommodation is provided in a manner no more 75
restrictive of an individual's personal liberty and no more 76
intrusive than necessary to achieve care and treatment 77
objectives; 78
[(14)] (15) "Likelihood of serious physical harm", one 79
or more of the following: 80
(a) A substantial risk that physical harm to an 81
eligible adult will occur because of his or her failure or 82
inability to provide for his or her essential human needs as 83
evidenced by acts or behavior which has caused such harm or 84
which gives another person probable cause to believe that 85
the eligible adult will sustain such harm; 86
(b) A substantial risk that physical harm will be 87
inflicted by an eligible adult upon himself or herself, as 88
evidenced by recent credible threats, acts, or behavior 89
which has caused such harm or which places another person in 90
reasonable fear that the eligible adult will sustain such 91
harm; 92
(c) A substantial risk that physical harm will be 93
inflicted by another upon an eligible adult as evidenced by 94
recent acts or behavior which has caused such harm or which 95
gives another person probable cause to believe the eligible 96
adult will sustain such harm; 97
(d) A substantial risk that further physical harm will 98
occur to an eligible adult who has suffered physical injury, 99
neglect, sexual or emotional abuse, or other maltreatment or 100
wasting of his or her financial resources by another person; 101
[(15)] (16) "Neglect", the failure to provide services 102
to an eligible adult by any person, firm or corporation with 103
a legal or contractual duty to do so, when such failure 104
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presents either an imminent danger to the health, safety, or 105
welfare of the client or a substantial probability that 106
death or serious physical harm would result; 107
[(16)] (17) "Protective services", services provided 108
by the state or other governmental or private organizations 109
or individuals which are necessary for the eligible adult to 110
meet his or her essential human needs. 111
192.2475. 1. When any advanced emergency medical 1
technician; adult day care worker; bank personnel; 2
chiropractor; Christian Science practitioner; coroner; 3
dentist; embalmer; emergency medical technician; employee of 4
the departments of social services, mental health, or health 5
and senior services; employee of a local area agency on 6
aging or an organized area agency on aging program; 7
firefighter; first responder, as defined in section 8
192.2405; funeral director; home health agency or home 9
health agency employee; hospital and clinic personnel 10
engaged in examination, care, or treatment of persons; in- 11
home services owner, provider, operator, or employee; law 12
enforcement officer; long-term care facility administrator 13
or employee; medical examiner; medical resident or intern; 14
mental health professional; minister; nurse; nurse 15
practitioner; paramedic; optometrist; other health 16
practitioner; peace officer; pharmacist; physical therapist; 17
physician; physician's assistant; podiatrist; probation or 18
parole officer; psychologist; or social worker has 19
reasonable cause to believe that an in-home services client 20
has been abused or neglected, as a result of in-home 21
services, he or she shall immediately report or cause a 22
report to be made to the department. If the report is made 23
by a physician of the in-home services client, the 24
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department shall maintain contact with the physician 25
regarding the progress of the investigation. 26
2. Any person required in subsection 1 of this section 27
to report or cause a report to be made to the department who 28
fails to do so within a reasonable time after the act of 29
abuse or neglect is guilty of a class A misdemeanor. 30
3. The report shall contain the names and addresses of 31
the in-home services provider agency, the in-home services 32
employee, the in-home services client, the home health 33
agency, the home health agency employee, information 34
regarding the nature of the abuse or neglect, the name of 35
the complainant, and any other information which might be 36
helpful in an investigation. 37
4. In addition to those persons required to report 38
under subsection 1 of this section, any other person having 39
reasonable cause to believe that an in-home services client 40
or home health patient has been abused or neglected by an in- 41
home services employee or home health agency employee may 42
report such information to the department. 43
5. If the investigation indicates possible abuse or 44
neglect of an in-home services client or home health 45
patient, the investigator shall refer the complaint together 46
with his or her report to the department director or his or 47
her designee for appropriate action. If, during the 48
investigation or at its completion, the department has 49
reasonable cause to believe that immediate action is 50
necessary to protect the in-home services client or home 51
health patient from abuse or neglect, the department or the 52
local prosecuting attorney may, or the attorney general upon 53
request of the department shall, file a petition for 54
temporary care and protection of the in-home services client 55
or home health patient in a circuit court of competent 56
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jurisdiction. The circuit court in which the petition is 57
filed shall have equitable jurisdiction to issue an ex parte 58
order granting the department authority for the temporary 59
care and protection of the in-home services client or home 60
health patient, for a period not to exceed thirty days. 61
6. Reports, including investigation records, shall be 62
confidential, as provided under section 192.2500. 63
7. Anyone, except any person who has abused or 64
neglected an in-home services client or home health patient, 65
who makes a report pursuant to this section or who testifies 66
in any administrative or judicial proceeding arising from 67
the report shall be immune from any civil or criminal 68
liability for making such a report or for testifying except 69
for liability for perjury, unless such person acted 70
negligently, recklessly, in bad faith, or with malicious 71
purpose. 72
8. Within five working days after a report required to 73
be made under this section is received, the person making 74
the report shall be notified in writing of its receipt and 75
of the initiation of the investigation. 76
9. No person who directs or exercises any authority in 77
an in-home services provider agency or home health agency 78
shall harass, dismiss or retaliate against an in-home 79
services client or home health patient, or an in-home 80
services employee or a home health agency employee because 81
he or she or any member of his or her family has made a 82
report of any violation or suspected violation of laws, 83
standards or regulations applying to the in-home services 84
provider agency or home health agency or any in-home 85
services employee or home health agency employee which he or 86
she has reasonable cause to believe has been committed or 87
has occurred. 88
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10. Any person who abuses or neglects an in-home 89
services client or home health patient is subject to 90
criminal prosecution under section 565.184. If such person 91
is an in-home services employee and has been found guilty by 92
a court, and if the supervising in-home services provider 93
willfully and knowingly failed to report known abuse by such 94
employee to the department, the supervising in-home services 95
provider may be subject to administrative penalties of one 96
thousand dollars per violation to be collected by the 97
department and the money received therefor shall be paid to 98
the director of revenue and deposited in the state treasury 99
to the credit of the general revenue fund. Any in-home 100
services provider which has had administrative penalties 101
imposed by the department or which has had its contract 102
terminated may seek an administrative review of the 103
department's action pursuant to chapter 621. Any decision 104
of the administrative hearing commission may be appealed to 105
the circuit court in the county where the violation occurred 106
for a trial de novo. For purposes of this subsection, the 107
term "violation" means a determination of guilt by a court. 108
11. The department shall establish a quality assurance 109
and supervision process for clients that requires an in-home 110
services provider agency to conduct random visits to verify 111
compliance with program standards and verify the accuracy of 112
records kept by an in-home services employee. 113
12. The department shall maintain the employee 114
disqualification list and place on the employee 115
disqualification list the names of any persons who have been 116
finally determined by the department, pursuant to section 117
192.2490, to have recklessly, knowingly or purposely abused 118
or neglected an in-home services client or home health 119
patient while employed by an in-home services provider 120
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agency or home health agency. For purposes of this section 121
only, "knowingly" and "recklessly" shall have the meanings 122
that are ascribed to them in this section. A person acts 123
"knowingly" with respect to the person's conduct when a 124
reasonable person should be aware of the result caused by 125
his or her conduct. A person acts "recklessly" when the 126
person consciously disregards a substantial and 127
unjustifiable risk that the person's conduct will result in 128
serious physical injury and such disregard constitutes a 129
gross deviation from the standard of care that a reasonable 130
person would exercise in the situation. 131
13. At the time a client has been assessed to 132
determine the level of care as required by rule and is 133
eligible for in-home services, the department shall conduct 134
a safe at home evaluation to determine the client's 135
physical, mental, and environmental capacity. The 136
department shall develop the safe at home evaluation tool by 137
rule in accordance with chapter 536. The purpose of the 138
safe at home evaluation is to assure that each client has 139
the appropriate level of services and professionals involved 140
in the client's care. The plan of service or care for each 141
in-home services client shall be authorized by a nurse. The 142
department may authorize the licensed in-home services 143
nurse, in lieu of the department nurse, to conduct the 144
assessment of the client's condition and to establish a plan 145
of services or care. The department may use the expertise, 146
services, or programs of other departments and agencies on a 147
case-by-case basis to establish the plan of service or 148
care. The department may, as indicated by the safe at home 149
evaluation, refer any client to a mental health 150
professional, as defined in 9 CSR 30- 4.030, for evaluation 151
and treatment as necessary. 152
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14. Authorized nurse visits shall occur at least twice 153
annually to assess the client and the client's plan of 154
services. The provider nurse shall report the results of 155
his or her visits to the client's case manager. If the 156
provider nurse believes that the plan of service requires 157
alteration, the department shall be notified and the 158
department shall make a client evaluation. All authorized 159
nurse visits shall be reimbursed to the in-home services 160
provider. All authorized nurse visits shall be reimbursed 161
outside of the nursing home cap for in-home services clients 162
whose services have reached one hundred percent of the 163
average statewide charge for care and treatment in an 164
intermediate care facility, provided that the services have 165
been preauthorized by the department. 166
15. All in-home services clients shall be advised of 167
their rights by the department or the department's designee 168
at the initial evaluation. The rights shall include, but 169
not be limited to, the right to call the department for any 170
reason, including dissatisfaction with the provider or 171
services. The department may contract for services relating 172
to receiving such complaints. The department shall 173
establish a process to receive such nonabuse and neglect 174
calls other than the elder abuse and neglect hotline. 175
16. Subject to appropriations, all nurse visits 176
authorized in sections 192.2400 to 192.2475 shall be 177
reimbursed to the in-home services provider agency. 178
192.2490. 1. After an investigation and a 1
determination has been made to place a person's name on the 2
employee disqualification list, that person shall be 3
notified in writing mailed to his or her last known address 4
that: 5
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(1) An allegation has been made against the person, 6
the substance of the allegation and that an investigation 7
has been conducted which tends to substantiate the 8
allegation; 9
(2) The person's name will be included in the employee 10
disqualification list of the department; 11
(3) The consequences of being so listed including the 12
length of time to be listed; and 13
(4) The person's rights and the procedure to challenge 14
the allegation. 15
2. If no reply has been received within thirty days of 16
mailing the notice, the department may include the name of 17
such person on its list. The length of time the person's 18
name shall appear on the employee disqualification list 19
shall be determined by the director or the director's 20
designee, based upon the criteria contained in subsection 9 21
of this section. 22
3. If the person so notified wishes to challenge the 23
allegation, such person may file an application for a 24
hearing with the department. The department shall grant the 25
application within thirty days after receipt by the 26
department and set the matter for hearing, or the department 27
shall notify the applicant that, after review, the 28
allegation has been held to be unfounded and the applicant's 29
name will not be listed. 30
4. If a person's name is included on the employee 31
disqualification list without the department providing 32
notice as required under subsection 1 of this section, such 33
person may file a request with the department for removal of 34
the name or for a hearing. Within thirty days after receipt 35
of the request, the department shall either remove the name 36
from the list or grant a hearing and set a date therefor. 37
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5. [Any hearing shall] The director of the department 38
or the director's designee shall conduct any hearing by 39
telephone or electronic means, unless the person submits a 40
written request for the hearing to be conducted in the 41
county of the person's residence [by the director of the 42
department or the director's designee]. The provisions of 43
chapter 536 for a contested case except those provisions or 44
amendments which are in conflict with this section shall 45
apply to and govern the proceedings contained in this 46
section and the rights and duties of the parties involved. 47
The person appealing such an action shall be entitled to 48
present evidence, pursuant to the provisions of chapter 536, 49
relevant to the allegations. 50
6. Upon the record made at the hearing, the director 51
of the department or the director's designee shall determine 52
all questions presented and shall determine whether the 53
person shall be listed on the employee disqualification 54
list. The director of the department or the director's 55
designee shall clearly state the reasons for his or her 56
decision and shall include a statement of findings of fact 57
and conclusions of law pertinent to the questions in issue. 58
7. A person aggrieved by the decision following the 59
hearing shall be informed of his or her right to seek 60
judicial review as provided under chapter 536. If the 61
person fails to appeal the director's findings, those 62
findings shall constitute a final determination that the 63
person shall be placed on the employee disqualification list. 64
8. A decision by the director shall be inadmissible in 65
any civil action brought against a facility or the in-home 66
services provider agency and arising out of the facts and 67
circumstances which brought about the employment 68
disqualification proceeding, unless the civil action is 69
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brought against the facility or the in-home services 70
provider agency by the department of health and senior 71
services or one of its divisions. 72
9. The length of time the person's name shall appear 73
on the employee disqualification list shall be determined by 74
the director of the department of health and senior services 75
or the director's designee, based upon the following: 76
(1) Whether the person acted recklessly or knowingly, 77
as defined in chapter 562; 78
(2) The degree of the physical, sexual, or emotional 79
injury or harm; or the degree of the imminent danger to the 80
health, safety or welfare of a resident or in-home services 81
client; 82
(3) The degree of misappropriation of the property or 83
funds, or falsification of any documents for service 84
delivery of an in-home services client; 85
(4) Whether the person has previously been listed on 86
the employee disqualification list; 87
(5) Any mitigating circumstances; 88
(6) Any aggravating circumstances; and 89
(7) Whether alternative sanctions resulting in 90
conditions of continued employment are appropriate in lieu 91
of placing a person's name on the employee disqualification 92
list. Such conditions of employment may include, but are 93
not limited to, additional training and employee 94
counseling. Conditional employment shall terminate upon the 95
expiration of the designated length of time and the person's 96
submitting documentation which fulfills the department of 97
health and senior services' requirements. 98
10. The removal of any person's name from the list 99
under this section shall not prevent the director from 100
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keeping records of all acts finally determined to have 101
occurred under this section. 102
11. The department shall provide the list maintained 103
pursuant to this section to other state departments upon 104
request and to any person, corporation, organization, or 105
association who: 106
(1) Is licensed as an operator under chapter 198; 107
(2) Provides in-home services under contract with the 108
department of social services or its divisions; 109
(3) Employs health care providers as defined in 110
section 376.1350 for temporary or intermittent placement in 111
health care facilities; 112
(4) Is approved by the department to issue 113
certificates for nursing assistants training; 114
(5) Is an entity licensed under chapter 197; 115
(6) Is a recognized school of nursing, medicine, or 116
other health profession for the purpose of determining 117
whether students scheduled to participate in clinical 118
rotations with entities described in subdivision (1), (2), 119
or (5) of this subsection are included in the employee 120
disqualification list; or 121
(7) Is a consumer reporting agency regulated by the 122
federal Fair Credit Reporting Act that conducts employee 123
background checks on behalf of entities listed in this 124
subsection. Such a consumer reporting agency shall conduct 125
the employee disqualification list check only upon the 126
initiative or request of an entity described in this 127
subsection when the entity is fulfilling its duties required 128
under this section. 129
The information shall be disclosed only to the requesting 130
entity. The department shall inform any person listed above 131
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who inquires of the department whether or not a particular 132
name is on the list. The department may require that the 133
request be made in writing or by electronic means. No 134
person, corporation, organization, or association who is 135
entitled to access the employee disqualification list may 136
disclose the information to any person, corporation, 137
organization, or association who is not entitled to access 138
the list. Any person, corporation, organization, or 139
association who is entitled to access the employee 140
disqualification list who discloses the information to any 141
person, corporation, organization, or association who is not 142
entitled to access the list shall be guilty of an infraction. 143
12. No person, corporation, organization, or 144
association who received the employee disqualification list 145
under subdivisions (1) to (7) of subsection 11 of this 146
section shall knowingly employ any person who is on the 147
employee disqualification list. Any person, corporation, 148
organization, or association who received the employee 149
disqualification list under subdivisions (1) to (7) of 150
subsection 11 of this section, or any person responsible for 151
providing health care service, who declines to employ or 152
terminates a person whose name is listed in this section 153
shall be immune from suit by that person or anyone else 154
acting for or in behalf of that person for the failure to 155
employ or for the termination of the person whose name is 156
listed on the employee disqualification list. 157
13. Any employer or vendor as defined or described in 158
sections 197.250, 197.400, 198.006, 208.900, or 192.2400 159
required to deny employment to an applicant or to discharge 160
an employee, provisional or otherwise, as a result of 161
information obtained through any portion of the background 162
screening and employment eligibility determination process 163
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under section 210.903, or subsequent, periodic screenings, 164
shall not be liable in any action brought by the applicant 165
or employee relating to discharge where the employer is 166
required by law to terminate the employee, provisional or 167
otherwise, and shall not be charged for unemployment 168
insurance benefits based on wages paid to the employee for 169
work prior to the date of discharge, pursuant to section 170
288.100, if the employer terminated the employee because the 171
employee: 172
(1) Has been found guilty, pled guilty or nolo 173
contendere in this state or any other state of a crime as 174
listed in subsection 6 of section 192.2495; 175
(2) Was placed on the employee disqualification list 176
under this section after the date of hire; 177
(3) Was placed on the employee disqualification 178
registry maintained by the department of mental health after 179
the date of hire; 180
(4) Has a disqualifying finding under this section, 181
section 192.2495, or is on any of the background check lists 182
in the family care safety registry under sections 210.900 to 183
210.936; or 184
(5) Was denied a good cause waiver as provided for in 185
subsection 10 of section 192.2495. 186
14. Any person who has been listed on the employee 187
disqualification list may request that the director of the 188
department or the director's designee remove his or her name 189
from the employee disqualification list. The request shall 190
be written and may not be made more than once every twelve 191
months. The request will be granted by the director of the 192
department or the director's designee upon a clear showing, 193
by written submission only, that the person will not commit 194
additional acts of abuse, neglect, misappropriation of the 195
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property or funds, or the falsification of any documents of 196
service delivery to an in-home services client. The 197
director of the department or the director's designee may 198
make conditional the removal of a person's name from the 199
list on any terms that the director of the department or the 200
director's designee deems appropriate, and failure to comply 201
with such terms may result in the person's name being 202
relisted. The [director's] determination of whether to 203
remove the person's name from the list is not subject to 204
appeal. 205
192.2495. 1. For the purposes of this section, the 1
term "provider" means any person, corporation or association 2
who: 3
(1) Is licensed as an operator pursuant to chapter 198; 4
(2) Provides in-home services under contract with the 5
department of social services or its divisions; 6
(3) Employs health care providers as defined in 7
section 376.1350 for temporary or intermittent placement in 8
health care facilities; 9
(4) Is an entity licensed pursuant to chapter 197; 10
(5) Is a public or private facility, day program, 11
residential facility or specialized service operated, funded 12
or licensed by the department of mental health; or 13
(6) Is a licensed adult day care provider. 14
2. For the purpose of this section "patient or 15
resident" has the same meaning as such term is defined in 16
section 43.539. 17
3. Prior to allowing any person who has been hired as 18
a full-time, part-time or temporary position to have contact 19
with any patient or resident the provider shall, or in the 20
case of temporary employees hired through or contracted for 21
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an employment agency, the employment agency shall prior to 22
sending a temporary employee to a provider: 23
(1) Request a criminal background check as provided in 24
section 43.540. Completion of an inquiry to the highway 25
patrol for criminal records that are available for 26
disclosure to a provider for the purpose of conducting an 27
employee criminal records background check shall be deemed 28
to fulfill the provider's duty to conduct employee criminal 29
background checks pursuant to this section; except that, 30
completing the inquiries pursuant to this subsection shall 31
not be construed to exempt a provider from further inquiry 32
pursuant to common law requirements governing due 33
diligence. If an applicant has not resided in this state 34
for five consecutive years prior to the date of his or her 35
application for employment, the provider shall request a 36
nationwide check for the purpose of determining if the 37
applicant has a prior criminal history in other states. The 38
fingerprint cards and any required fees shall be sent to the 39
highway patrol's central repository. The fingerprints shall 40
be used for searching the state repository of criminal 41
history information. If no identification is made, 42
fingerprints shall be forwarded to the Federal Bureau of 43
Investigation for the searching of the federal criminal 44
history files. The patrol shall notify the submitting state 45
agency of any criminal history information or lack of 46
criminal history information discovered on the individual. 47
The provisions relating to applicants for employment who 48
have not resided in this state for five consecutive years 49
shall apply only to persons who have no employment history 50
with a licensed Missouri facility during that five-year 51
period. Notwithstanding the provisions of section 610.120, 52
all records related to any criminal history information 53
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discovered shall be accessible and available to the provider 54
making the record request; and 55
(2) Make an inquiry to the department of health and 56
senior services whether the person is listed on the employee 57
disqualification list as provided in section 192.2490. 58
4. When the provider requests a criminal background 59
check pursuant to section 43.540, the requesting entity may 60
require that the applicant reimburse the provider for the 61
cost of such record check. When a provider requests a 62
nationwide criminal background check pursuant to subdivision 63
(1) of subsection 3 of this section, the total cost to the 64
provider of any background check required pursuant to this 65
section shall not exceed five dollars which shall be paid to 66
the state. State funding and the obligation of a provider 67
to obtain a nationwide criminal background check shall be 68
subject to the availability of appropriations. 69
5. An applicant for a position to have contact with 70
patients or residents of a provider shall: 71
(1) Sign a consent form as required by section 43.540 72
so the provider may request a criminal records review; 73
(2) Disclose the applicant's criminal history. For 74
the purposes of this subdivision "criminal history" includes 75
any conviction or a plea of guilty to a misdemeanor or 76
felony charge and shall include any suspended imposition of 77
sentence, any suspended execution of sentence or any period 78
of probation or parole; 79
(3) Disclose if the applicant is listed on the 80
employee disqualification list as provided in section 81
192.2490; and 82
(4) Disclose if the applicant is listed on any of the 83
background checks in the family care safety registry 84
established under section 210.903. A provider not otherwise 85
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prohibited from employing an individual listed on such 86
background checks may deny employment to an individual 87
listed on any of the background checks in such registry. 88
6. An applicant who knowingly fails to disclose his or 89
her criminal history as required in subsection 5 of this 90
section is guilty of a class A misdemeanor. A provider is 91
guilty of a class A misdemeanor if the provider knowingly 92
hires or retains a person to have contact with patients or 93
residents and the person has been found guilty in this state 94
or any other state or has been found guilty of a crime, 95
which if committed in Missouri would be a class A or B 96
felony violation of chapter 565, 566 or [569] 579, or any 97
violation of subsection 3 of section 198.070 or sections 98
565.184, 566.115, 566.116, or [section] 568.020. 99
7. Any in-home services provider agency or home health 100
agency shall be guilty of a class A misdemeanor if such 101
agency knowingly employs a person to provide in-home 102
services or home health services to any in-home services 103
client or home health patient and such person either refuses 104
to register with the family care safety registry or if such 105
person: 106
(1) Has any of the disqualifying factors listed in 107
subsection 6 of this section; 108
(2) Has been found guilty of or pleaded guilty or nolo 109
contendere to any felony offense under chapter 195 or 579; 110
(3) Has been found guilty of or pleaded guilty or nolo 111
contendere to any felony offense under section 568.045, 112
568.050, 568.060, 568.175, 570.023, 570.025, 570.030, 113
570.040 as it existed prior to January 1, 2017, 570.090, 114
570.145, 570.223, 575.230, or 576.080; 115
(4) Has been found guilty of or pleaded guilty or nolo 116
contendere to a violation of section 577.010 or 577.012 and 117
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who is alleged and found by the court to be an aggravated or 118
chronic offender under section 577.023; 119
(5) Has been found guilty of or pleaded guilty or nolo 120
contendere to any offense requiring registration under 121
section [589.400] 589.414; 122
(6) Is listed on the department of health and senior 123
services employee disqualification list under section 124
192.2490; 125
(7) Is listed on the department of mental health 126
employee disqualification registry under section 630.170; or 127
(8) Has a finding on the child abuse and neglect 128
registry under sections 210.109 to 210.183. 129
8. The highway patrol shall examine whether protocols 130
can be developed to allow a provider to request a statewide 131
fingerprint criminal records review check through local law 132
enforcement agencies. 133
9. A provider may use a private investigatory agency 134
rather than the highway patrol to do a criminal history 135
records review check, and alternatively, the applicant pays 136
the private investigatory agency such fees as the provider 137
and such agency shall agree. 138
10. Except for the hiring restriction based on the 139
department of health and senior services employee 140
disqualification list established pursuant to section 141
192.2490, the department of health and senior services shall 142
promulgate rules and regulations to waive the hiring 143
restrictions pursuant to this section for good cause. For 144
purposes of this section, "good cause" means the department 145
has made a determination by examining the employee's prior 146
work history and other relevant factors that such employee 147
does not present a risk to the health or safety of residents. 148
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192.2500. 1. Reports, including investigation 1
records, confidential under [section] sections 192.2256, 2
192.2257, 192.2475 to 192.2490, 197.550, 198.070, 198.090, 3
208.912, 208.915, and [sections 192.2475 to 192.2490] any 4
other record or report related to the inclusion of an 5
individual on the employee disqualification list shall not 6
be deemed a public record and shall not be subject to the 7
provisions of section 109.180 or chapter 610. The name of 8
the complainant or any person mentioned in the reports shall 9
not be disclosed unless: 10
(1) The complainant, resident, participant, patient, 11
or the in-home services client mentioned agrees to 12
disclosure of his or her name; 13
(2) The department determines that disclosure is 14
necessary in order to prevent further abuse, neglect, 15
misappropriation of property or funds, or falsification of 16
any documents verifying service delivery to an in-home 17
services client; 18
(3) Release of a name is required for conformance with 19
a lawful subpoena; 20
(4) Release of a name is required in connection with a 21
review by the administrative hearing commission in 22
accordance with section 198.039; 23
(5) The department determines that release of a name 24
is appropriate when forwarding a report of findings of an 25
investigation to a licensing authority; or 26
(6) Release of a name is requested for the purpose of 27
licensure under chapter 210. 28
2. The department shall, upon request, provide to the 29
division of employment security within the department of 30
labor and industrial relations copies of the investigative 31
SB 1482 31
reports that led to an employee being placed on the 32
disqualification list. 33
197.550. 1. Any person having reasonable cause to 1
believe that a misappropriation of a patient's property or 2
funds has occurred shall report such information to the 3
department. 4
2. For each report the department shall attempt to 5
obtain the names and addresses of the facility or provider, 6
the employee of the facility or provider, the patient of the 7
facility or provider, information regarding the nature of 8
the misappropriation, the name of the complainant, and any 9
other information that may be helpful in an investigation. 10
3. Any facility or provider licensed under this 11
chapter or facility employee who puts to his or her own use 12
or the use of the facility or provider or otherwise diverts 13
from the patient's use any personal property or funds of the 14
patient is guilty of a class A misdemeanor. 15
4. Upon receipt of a report, the department shall 16
initiate an investigation and report information gained from 17
such investigation to appropriate law enforcement 18
authorities. 19
5. If the investigation indicates probable 20
misappropriation of property or funds of a patient, the 21
investigator shall refer the complaint together with the 22
investigator's report to the department director or the 23
director's designee for appropriate action. 24
6. Reports, including investigation records, shall be 25
confidential, as provided under section 192.2500. 26
7. Anyone, except any person participating in or 27
benefitting from the misappropriation of funds, who makes a 28
report under this section or who testifies in any 29
administrative or judicial proceeding arising from the 30
SB 1482 32
report shall be immune from any civil or criminal liability 31
for making such a report or for testifying except for 32
liability for perjury, unless such person acted negligently, 33
recklessly, in bad faith, or with malicious purpose. 34
8. Within five working days after a report required to 35
be made under this section is received, the person making 36
the report shall be notified in writing of its receipt and 37
of the initiation of the investigation. 38
9. No person who directs or exercises any authority in 39
a facility or provider licensed under this chapter shall 40
harass, dismiss, or retaliate against a patient or employee 41
because he or she or any member of his or her family has 42
made a report of any violation or suspected violation of 43
laws, ordinances, or regulations applying to the facility, 44
provider, or any employee which he or she has reasonable 45
cause to believe has been committed or has occurred. 46
10. The department shall maintain the employee 47
disqualification list and place on the employee 48
disqualification list the names of any persons who are or 49
have been employed by a facility or provider licensed under 50
this chapter and who have been finally determined by the 51
department under section 192.2490 to have misappropriated 52
any property or funds of a patient and who came to be known 53
to the person, directly, or indirectly, while employed by 54
the facility or provider. 55
198.006. As used in sections 198.003 to 198.186, 1
unless the context clearly indicates otherwise, the 2
following terms mean: 3
(1) "Abuse", the infliction of physical, sexual, or 4
emotional injury or harm, including financial exploitation 5
by any person, firm, or corporation; 6
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(2) "Activities of daily living" or "ADL", one or more 7
of the following activities of daily living: 8
(a) Eating; 9
(b) Dressing; 10
(c) Bathing; 11
(d) Toileting; 12
(e) Transferring; and 13
(f) Walking; 14
(3) "Administrator", the person who is in general 15
administrative charge of a facility; 16
(4) "Affiliate": 17
(a) With respect to a partnership, each partner 18
thereof; 19
(b) With respect to a limited partnership, the general 20
partner and each limited partner with an interest of five 21
percent or more in the limited partnership; 22
(c) With respect to a corporation, each person who 23
owns, holds or has the power to vote five percent or more of 24
any class of securities issued by the corporation, and each 25
officer and director; 26
(d) With respect to a natural person, any parent, 27
child, sibling, or spouse of that person; 28
(5) "Appropriately trained and qualified individual", 29
an individual who is licensed or registered with the state 30
of Missouri in a health care-related field or an individual 31
with a degree in a health care-related field or an 32
individual with a degree in a health care, social services, 33
or human services field or an individual licensed under 34
chapter 344 and who has received facility orientation 35
training under 19 CSR 30-86.047, and dementia training under 36
section 192.2000 and twenty-four hours of additional 37
training, approved by the department, consisting of 38
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definition and assessment of activities of daily living, 39
assessment of cognitive ability, service planning, and 40
interview skills; 41
(6) "Assisted living facility", any premises, other 42
than a residential care facility, intermediate care 43
facility, or skilled nursing facility, that is utilized by 44
its owner, operator, or manager to provide twenty-four-hour 45
care and services and protective oversight to three or more 46
residents who are provided with shelter, board, and who may 47
need and are provided with the following: 48
(a) Assistance with any activities of daily living and 49
any instrumental activities of daily living; 50
(b) Storage, distribution, or administration of 51
medications; and 52
(c) Supervision of health care under the direction of 53
a licensed physician, provided that such services are 54
consistent with a social model of care; 55
Such term shall not include a facility where all of the 56
residents are related within the fourth degree of 57
consanguinity or affinity to the owner, operator, or manager 58
of the facility; 59
(7) "Community-based assessment", documented basic 60
information and analysis provided by appropriately trained 61
and qualified individuals describing an individual's 62
abilities and needs in activities of daily living, 63
instrumental activities of daily living, vision/hearing, 64
nutrition, social participation and support, and cognitive 65
functioning using an assessment tool approved by the 66
department of health and senior services that is designed 67
for community-based services and that is not the nursing 68
home minimum data set; 69
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(8) "Dementia", a general term for the loss of 70
thinking, remembering, and reasoning so severe that it 71
interferes with an individual's daily functioning, and may 72
cause symptoms that include changes in personality, mood, 73
and behavior; 74
(9) "Department", the Missouri department of health 75
and senior services; 76
(10) "Emergency", a situation, physical condition or 77
one or more practices, methods or operations which presents 78
imminent danger of death or serious physical or mental harm 79
to residents of a facility; 80
(11) "Facility", any residential care facility, 81
assisted living facility, intermediate care facility, or 82
skilled nursing facility; 83
(12) "Financial exploitation", when a person knowingly 84
obtains control over the property of a resident with the 85
intent to deprive the resident of the use, benefit, or 86
possession of his or her property, thereby benefitting the 87
offender or detrimentally affecting the resident by: 88
(a) Deceit; 89
(b) Coercion; 90
(c) Creating or confirming another person's impression 91
that is false and that the offender does not believe to be 92
true; 93
(d) Failing to correct a false impression that the 94
offender previously has created or confirmed; 95
(e) Preventing another person from acquiring 96
information pertinent to the disposition of the property 97
involved; 98
(f) Selling or otherwise transferring or encumbering 99
property, or failing to disclose a lien, adverse claim, or 100
other legal impediment to the enjoyment of the property, 101
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whether such impediment is or is not valid or is or is not a 102
matter of official record; 103
(g) Promising performance that the offender does not 104
intend to perform or knows will not be performed. Failure 105
to perform on its own shall not be sufficient evidence to 106
prove that the offender did not intend to perform; or 107
(h) Undue influence, which means the use of influence 108
by someone who exercises authority over a resident in order 109
to take unfair advantage of that person's vulnerable state 110
of mind, neediness, pain, or agony. Undue influence 111
includes, but is not limited to, the improper or fraudulent 112
use of a power of attorney, guardianship, conservatorship, 113
or other fiduciary authority; 114
(13) "Health care provider", any person providing 115
health care services or goods to residents and who receives 116
funds in payment for such goods or services under Medicaid; 117
[(13)] (14) "Instrumental activities of daily living", 118
or "IADL", one or more of the following activities: 119
(a) Preparing meals; 120
(b) Shopping for personal items; 121
(c) Medication management; 122
(d) Managing money; 123
(e) Using the telephone; 124
(f) Housework; and 125
(g) Transportation ability; 126
[(14)] (15) "Intermediate care facility", any 127
premises, other than a residential care facility, assisted 128
living facility, or skilled nursing facility, which is 129
utilized by its owner, operator, or manager to provide 130
twenty-four-hour accommodation, board, personal care, and 131
basic health and nursing care services under the daily 132
supervision of a licensed nurse and under the direction of a 133
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licensed physician to three or more residents dependent for 134
care and supervision and who are not related within the 135
fourth degree of consanguinity or affinity to the owner, 136
operator or manager of the facility; 137
[(15)] (16) "Manager", any person other than the 138
administrator of a facility who contracts or otherwise 139
agrees with an owner or operator to supervise the general 140
operation of a facility, providing such services as hiring 141
and training personnel, purchasing supplies, keeping 142
financial records, and making reports; 143
[(16)] (17) "Medicaid", medical assistance under 144
section 208.151, et seq., in compliance with Title XIX, 145
Public Law 89-97, 1965 amendments to the Social Security Act 146
(42 U.S.C. Section 301, et seq.), as amended; 147
[(17)] (18) "Neglect", the failure to provide, by 148
those responsible for the care, custody, and control of a 149
resident in a facility, the services which are reasonable 150
and necessary to maintain the physical and mental health of 151
the resident, when such failure presents either an imminent 152
danger to the health, safety or welfare of the resident or a 153
substantial probability that death or serious physical harm 154
would result; 155
[(18)] (19) "Operator", any person licensed or 156
required to be licensed under the provisions of sections 157
198.003 to 198.096 in order to establish, conduct or 158
maintain a facility; 159
[(19)] (20) "Owner", any person who owns an interest 160
of five percent or more in: 161
(a) The land on which any facility is located; 162
(b) The structure or structures in which any facility 163
is located; 164
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(c) Any mortgage, contract for deed, or other 165
obligation secured in whole or in part by the land or 166
structure in or on which a facility is located; or 167
(d) Any lease or sublease of the land or structure in 168
or on which a facility is located. 169
Owner does not include a holder of a debenture or bond 170
purchased at public issue nor does it include any regulated 171
lender unless the entity or person directly or through a 172
subsidiary operates a facility; 173
[(20)] (21) "Protective oversight", an awareness 174
twenty-four hours a day of the location of a resident, the 175
ability to intervene on behalf of the resident, the 176
supervision of nutrition, medication, or actual provisions 177
of care, and the responsibility for the welfare of the 178
resident, except where the resident is on voluntary leave; 179
[(21)] (22) "Resident", a person who by reason of 180
aging, illness, disease, or physical or mental infirmity 181
receives or requires care and services furnished by a 182
facility and who resides or boards in or is otherwise kept, 183
cared for, treated or accommodated in such facility for a 184
period exceeding twenty-four consecutive hours; 185
[(22)] (23) "Residential care facility", any premises, 186
other than an assisted living facility, intermediate care 187
facility, or skilled nursing facility, which is utilized by 188
its owner, operator or manager to provide twenty-four-hour 189
care to three or more residents, who are not related within 190
the fourth degree of consanguinity or affinity to the owner, 191
operator, or manager of the facility and who need or are 192
provided with shelter, board, and with protective oversight, 193
which may include storage and distribution or administration 194
of medications and care during short-term illness or 195
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recuperation, except that, for purposes of receiving 196
supplemental welfare assistance payments under section 197
208.030, only any residential care facility licensed as a 198
residential care facility II immediately prior to August 28, 199
2006, and that continues to meet such licensure requirements 200
for a residential care facility II licensed immediately 201
prior to August 28, 2006, shall continue to receive after 202
August 28, 2006, the payment amount allocated immediately 203
prior to August 28, 2006, for a residential care facility II 204
under section 208.030; 205
[(23)] (24) "Skilled nursing facility", any premises, 206
other than a residential care facility, an assisted living 207
facility, or an intermediate care facility, which is 208
utilized by its owner, operator or manager to provide for 209
twenty-four-hour accommodation, board and skilled nursing 210
care and treatment services to at least three residents who 211
are not related within the fourth degree of consanguinity or 212
affinity to the owner, operator or manager of the facility. 213
Skilled nursing care and treatment services are those 214
services commonly performed by or under the supervision of a 215
registered professional nurse for individuals requiring 216
twenty-four-hours-a-day care by licensed nursing personnel 217
including acts of observation, care and counsel of the aged, 218
ill, injured or infirm, the administration of medications 219
and treatments as prescribed by a licensed physician or 220
dentist, and other nursing functions requiring substantial 221
specialized judgment and skill; 222
[(24)] (25) "Social model of care", long-term care 223
services based on the abilities, desires, and functional 224
needs of the individual delivered in a setting that is more 225
home-like than institutional and promotes the dignity, 226
individuality, privacy, independence, and autonomy of the 227
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individual. Any facility licensed as a residential care 228
facility II prior to August 28, 2006, shall qualify as being 229
more home-like than institutional with respect to 230
construction and physical plant standards; 231
[(25)] (26) "Vendor", any person selling goods or 232
services to a health care provider; 233
[(26)] (27) "Voluntary leave", an off-premise leave 234
initiated by: 235
(a) A resident that has not been declared mentally 236
incompetent or incapacitated by a court; or 237
(b) A legal guardian of a resident that has been 238
declared mentally incompetent or incapacitated by a court. 239
198.070. 1. When any advanced emergency medical 1
technician; adult day care worker; bank personnel; 2
chiropractor; Christian Science practitioner; coroner; 3
dentist; embalmer; emergency medical technician; employee of 4
the departments of social services, mental health, or health 5
and senior services; employee of a local area agency on 6
aging or an organized area agency on aging program; 7
firefighter; first responder, as defined in section 8
192.2405; funeral director; home health agency or home 9
health agency employee; hospital and clinic personnel 10
engaged in examination, care, or treatment of persons; in- 11
home services owner, provider, operator, or employee; law 12
enforcement officer; long-term care facility administrator 13
or employee; medical examiner; medical resident or intern; 14
mental health professional; minister; nurse; nurse 15
practitioner; optometrist; other health practitioner; 16
paramedic; peace officer; pharmacist; physical therapist; 17
physician; physician's assistant; podiatrist; probation or 18
parole officer; psychologist; social worker; or other person 19
with the care of a person sixty years of age or older or an 20
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eligible adult, as defined in section 192.2400, has 21
reasonable cause to believe that a resident of a facility 22
has been abused or neglected, he or she shall immediately 23
report or cause a report to be made to the department. 24
2. (1) The report shall contain the name and address 25
of the facility, the name of the resident, information 26
regarding the nature of the abuse or neglect, the name of 27
the complainant, and any other information which might be 28
helpful in an investigation. 29
(2) In the event of suspected sexual assault of the 30
resident, in addition to the report to be made to the 31
department, a report shall be made to the appropriate local 32
law enforcement agency in accordance with federal law under 33
the provisions of 42 U.S.C. Section 1320b-25. 34
3. Any person required in subsection 1 of this section 35
to report or cause a report to be made to the department who 36
knowingly fails to make a report within a reasonable time 37
after the act of abuse or neglect as required in this 38
subsection is guilty of a class A misdemeanor. 39
4. In addition to the penalties imposed by this 40
section, any administrator who knowingly conceals any act of 41
abuse or neglect resulting in death or serious physical 42
injury, as defined in section 556.061, is guilty of a class 43
E felony. 44
5. In addition to those persons required to report 45
pursuant to subsection 1 of this section, any other person 46
having reasonable cause to believe that a resident has been 47
abused or neglected may report such information to the 48
department. 49
6. Upon receipt of a report, the department shall 50
initiate an investigation within twenty-four hours and, as 51
soon as possible during the course of the investigation, 52
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shall notify the resident's next of kin or responsible party 53
of the report and the investigation and further notify them 54
whether the report was substantiated or unsubstantiated 55
unless such person is the alleged perpetrator of the abuse 56
or neglect. As provided in section 192.2425, substantiated 57
reports of elder abuse shall be promptly reported by the 58
department to the appropriate law enforcement agency and 59
prosecutor. 60
7. If the investigation indicates possible abuse or 61
neglect of a resident, the investigator shall refer the 62
complaint together with the investigator's report to the 63
department director or the director's designee for 64
appropriate action. If, during the investigation or at its 65
completion, the department has reasonable cause to believe 66
that immediate removal is necessary to protect the resident 67
from abuse or neglect, the department or the local 68
prosecuting attorney may, or the attorney general upon 69
request of the department shall, file a petition for 70
temporary care and protection of the resident in a circuit 71
court of competent jurisdiction. The circuit court in which 72
the petition is filed shall have equitable jurisdiction to 73
issue an ex parte order granting the department authority 74
for the temporary care and protection of the resident, for a 75
period not to exceed thirty days. 76
8. Reports, including investigation records, shall be 77
confidential, as provided pursuant to section 192.2500. 78
9. Anyone, except any person who has abused or 79
neglected a resident in a facility, who makes a report 80
pursuant to this section or who testifies in any 81
administrative or judicial proceeding arising from the 82
report shall be immune from any civil or criminal liability 83
for making such a report or for testifying except for 84
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liability for perjury, unless such person acted negligently, 85
recklessly, in bad faith or with malicious purpose. It is a 86
crime under section 565.189 for any person to knowingly file 87
a false report of elder abuse or neglect. 88
10. Within five working days after a report required 89
to be made pursuant to this section is received, the person 90
making the report shall be notified in writing of its 91
receipt and of the initiation of the investigation. 92
11. No person who directs or exercises any authority 93
in a facility shall evict, harass, dismiss or retaliate 94
against a resident or employee because such resident or 95
employee or any member of such resident's or employee's 96
family has made a report of any violation or suspected 97
violation of laws, ordinances or regulations applying to the 98
facility which the resident, the resident's family or an 99
employee has reasonable cause to believe has been committed 100
or has occurred. Through the existing department 101
information and referral telephone contact line, residents, 102
their families and employees of a facility shall be able to 103
obtain information about their rights, protections and 104
options in cases of eviction, harassment, dismissal or 105
retaliation due to a report being made pursuant to this 106
section. 107
12. Any person who abuses or neglects a resident of a 108
facility is subject to criminal prosecution under section 109
565.184. 110
13. The department shall maintain the employee 111
disqualification list and place on the employee 112
disqualification list the names of any persons who are or 113
have been employed in any facility and who have been finally 114
determined by the department pursuant to section 192.2490 to 115
have knowingly or recklessly abused or neglected a 116
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resident. For purposes of this section only, "knowingly" 117
and "recklessly" shall have the meanings that are ascribed 118
to them in this section. A person acts "knowingly" with 119
respect to the person's conduct when a reasonable person 120
should be aware of the result caused by his or her conduct. 121
A person acts "recklessly" when the person consciously 122
disregards a substantial and unjustifiable risk that the 123
person's conduct will result in serious physical injury and 124
such disregard constitutes a gross deviation from the 125
standard of care that a reasonable person would exercise in 126
the situation. 127
14. The timely self-reporting of incidents to the 128
central registry by a facility shall continue to be 129
investigated in accordance with department policy, and shall 130
not be counted or reported by the department as a hot-line 131
call but rather a self-reported incident. If the self- 132
reported incident results in a regulatory violation, such 133
incident shall be reported as a substantiated report. 134
208.912. 1. When any advanced emergency medical 1
technician; adult day care worker; bank personnel; 2
chiropractor[,]; Christian Science practitioner[,]; 3
coroner[,]; dentist[,]; embalmer[,]; emergency medical 4
technician; employee of the departments of social services, 5
mental health, or health and senior services; employee of a 6
local area agency on aging or an organized area agency on 7
aging program; firefighter; first responder, as defined in 8
section 192.2405; funeral director; home health agency or 9
home health agency employee; hospital and clinic personnel 10
engaged in examination, care, or treatment of persons; in- 11
home services owner, provider, operator, or employee; law 12
enforcement officer; long-term care facility administrator 13
or employee; medical examiner; medical resident or intern; 14
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mental health professional; minister; nurse; nurse 15
practitioner; optometrist; other health practitioner; 16
paramedic; peace officer; pharmacist; physical therapist; 17
physician; physician's assistant; podiatrist; probation or 18
parole officer; psychologist; vendor as defined in section 19
208.900; personal care attendant; or social worker has 20
reasonable cause to believe that a consumer has been abused 21
or neglected as defined in section 192.2400 as a result of 22
the delivery of or failure to deliver personal care 23
assistance services, he or she shall immediately report or 24
cause a report to be made to the department. If the report 25
is made by a physician of the consumer, the department shall 26
maintain contact with the physician regarding the progress 27
of the investigation. 28
2. When a report of deteriorating physical condition 29
resulting in possible abuse or neglect of a consumer is 30
received by the department, the department's case manager 31
and the department nurse shall be notified. The case 32
manager shall investigate and immediately report the results 33
of the investigation to the department nurse. 34
3. If requested, local area agencies on aging shall 35
provide volunteer training to those persons listed in 36
subsection 1 of this section regarding the detection and 37
reporting of abuse and neglect under this section. 38
4. Any person required in subsection 1 of this section 39
to report or cause a report to be made to the department who 40
fails to do so within a reasonable time after the act of 41
abuse or neglect is guilty of a class A misdemeanor. 42
5. The report shall contain the names and addresses of 43
the vendor, the personal care attendant, and the consumer, 44
and information regarding the nature of the abuse or 45
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neglect, the name of the complainant, and any other 46
information which might be helpful in an investigation. 47
6. In addition to those persons required to report 48
under subsection 1 of this section, any other person having 49
reasonable cause to believe that a consumer has been abused 50
or neglected by a personal care attendant may report such 51
information to the department. 52
7. If the investigation indicates possible abuse or 53
neglect of a consumer, the investigator shall refer the 54
complaint together with his or her report to the department 55
director or his or her designee for appropriate action. If, 56
during the investigation or at its completion, the 57
department has reasonable cause to believe that immediate 58
action is necessary to protect the consumer from abuse or 59
neglect, the department or the local prosecuting attorney 60
may, or the attorney general upon request of the department 61
shall, file a petition for temporary care and protection of 62
the consumer in a circuit court of competent jurisdiction. 63
The circuit court in which the petition is filed shall have 64
equitable jurisdiction to issue an ex parte order granting 65
the department authority for the temporary care and 66
protection of the consumer, for a period not to exceed 67
thirty days. 68
8. Reports, including investigation reports, shall be 69
confidential, as provided under section 192.2500. 70
9. Anyone, except any person who has abused or 71
neglected a consumer, who makes a report pursuant to this 72
section or who testifies in any administrative or judicial 73
proceeding arising from the report shall be immune from any 74
civil or criminal liability for making such a report or for 75
testifying, except for liability for perjury, unless such 76
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person acted negligently, recklessly, in bad faith, or with 77
malicious purpose. 78
10. Within five working days after a report required 79
to be made under this section is received, the person making 80
the report shall be notified of its receipt and of the 81
initiation of the investigation. 82
11. No person who directs or exercises any authority 83
as a vendor, and no personal care attendant, shall harass, 84
dismiss or retaliate against a consumer because he or she or 85
any member of his or her family has made a report of any 86
violation or suspected violation of laws, standards or 87
regulations applying to the vendor or personal care 88
attendant which he or she has reasonable cause to believe 89
has been committed or has occurred. 90
12. The department shall place on the employee 91
disqualification list established in section 192.2490 the 92
names of any persons who have been finally determined by the 93
department to have recklessly, knowingly or purposely abused 94
or neglected a consumer while employed by a vendor, or 95
employed by a consumer as a personal care attendant. 96
13. The department shall provide the list maintained 97
pursuant to section 192.2490 to vendors as defined in 98
section 208.900. 99
14. Any person, corporation or association who 100
received the employee disqualification list under subsection 101
13 of this section, or any person responsible for providing 102
health care service, who declines to employ or terminates a 103
person whose name is listed in this section shall be immune 104
from suit by that person or anyone else acting for or in 105
behalf of that person for the failure to employ or for the 106
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termination of the person whose name is listed on the 107
employee disqualification list. 108
✓