I write to comment upon the proposed Adult Protective Services regulations and, in particular, to express grave concerns about proposed 22VAC40-740-40.H and 22VAC40-740-45 which pertain to notification of the alleged perpetrator and right to review by the alleged perpetrator.  I believe this aspect of the proposed new policy is unnecessary as a due process matter and that, if implemented, the proposed policy would pose a serious risk to the very people Adult Protective Services is designed to protect.  In addition, I believe the proposed policy would impose additional burdens on mandated reporters.

Due process concerns are certainly warranted when an alleged perpetrator stands to lose a benefit or to be subjected to some form of penalty or punishment.  In the Child Protective Services arena, as best I can determine, there are clear reasons for notice and the opportunity to challenge a finding of child neglect or abuse.  The purpose of the investigation in the CPS context is, among other things, to determine if abuse or neglect has occurred, and if so, to determine who abused or neglected the child.  § 63.2-1505.A. There is the possibility of removal of the child from the home.  If a report is founded, the results are submitted to the child abuse and neglect central registry and will remain on the registry for 3 to 18 years, depending on the severity of the complaint.  22VAC40-700-30.  Having one’s name on the registry can have adverse implications for employment—see, e.g., §§ 37.2-408.1.C, 63.2-1719, 63.2-1726.C.

As best I can determine, there are virtually no such negative implications if a complaint of adult abuse, neglect or exploitation is founded.  In contrast to the CPS investigation, the purpose of an APS investigation is “to determine whether the adult alleged to be abused, neglected or exploited or at risk of abuse, neglect or exploitation is in need of protective services, and, if so, to identify services needed to provide the protection.”  22VAC40-740-21.D.   Disposition, likewise, is to determine whether the adult “is in need of protective services and if so, what services are needed” and then to assess whether the person will accept or refuse services or whether services  should be provided involuntarily by court order.  22VAC40-740-40.   Adult Protective Services is about protecting the victims and offering them services, not about punishing the perpetrator.  There is no registry of persons found to have committed adult abuse, neglect or exploitation.  If referral is made to law enforcement and charges are brought under §18.2-369 or another code section, full due process rights would certainly attach at that time.  If there are other circumstances under which an alleged perpetrator is subject to loss of employment or certification from a founded complaint, then notice and appeal rights should attach at that point under those circumstances, not be applied across the board.  The provision of notice and appeal rights to all perpetrators, whether or not they stand to experience any adverse consequence from the founded complaint, is unnecessary and ill-advised.

While the due process rationale for notice and appeal rights is minimal at best, the additional risk to victims if alleged perpetrators are notified of the allegations and can appeal findings is substantial and potentially deadly.  If the perpetrator is put on notice that the victim or someone else has filed a complaint against him, there is considerable risk that the perpetrator, now angry and defensive, will take further abusive actions against the elderly or incapacitated victim.  The victim may have nowhere else to go and may elect to stay despite the risk of further harm. In the CPS context, the CPS worker and a court will make the determination of whether the child should be removed from the household.  In the APS context, however, if the adult victim has capacity and wants to stay in the household, APS must honor that request despite the potential risk to the victim.  Moreover, if the perpetrator seeks a review of the findings, the finding to provide services to the elderly victim could be reversed.  These potential consequences are contrary to the core purpose of APS—to investigate complaints and to provide casework and care management “in order to stabilize the situation or to prevent further abuse, neglect and exploitation of an adult at risk of abuse, neglect and exploitation.” 22VAC40-740-10. The unintended consequence of this proposed policy change is to destabilize the situation and to trigger further acts of abuse, neglect or exploitation, rather than preventing them.

The proposed change also places an added burden on mandated reporters who genuinely wish to help those they believe may be the victims of abuse, neglect or exploitation but who may rightly fear for the safety of the victim if the alleged perpetrator is notified of the complaint.  At the same time as the proposed regulations beef up procedures against mandated reporters who fail to report, the proposed perpetrator notice provision seems likely to have a chilling effect upon mandated reporters and upon victims who might otherwise seek help.  Surely the intent of these regulations is to increase reporting, not to discourage reporting by placing those already vulnerable at greater risk of harm.

Any rationale for increasing the due process rights of alleged perpetrators is minimal and could be addressed in a more targeted way whenever an alleged perpetrator stands to experience some genuine punishment or loss of employment or certification.  The due process concerns are far outweighed by the increased risk of danger to victims, the chilling effect such a proposal would likely have on the reporting of abuse, neglect and exploitation, and the possible increased risk to APS workers from irate perpetrators.  Where a perpetrator is faced with no adverse consequences from a founded complaint, imposition of these provisions will only serve to unnecessarily dilute protections and services for victims.  Surely that is not what we intend.  Please eliminate proposed 22VAC40-740-40.H and 22VAC40-740-45 or restrict their reach only to those perpetrators facing a genuine loss of benefits or actual punishment for their actions.  Thank you for your attention to these comments.