South Carolina General Assembly
116th Session, 2005-2006

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Bill 1116

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Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

March 2, 2006

S. 1116

Introduced by Senators McConnell, Lourie, Ford, Cleary, Knotts and Sheheen

S. Printed 3/2/06--S.    [SEC 3/3/06 12:08 PM]

Read the first time February 2, 2006.

            

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (S. 1116) to amend the Code of Laws of South Carolina, 1976, by adding Article 10, Chapter 3, Title 23 so as to establish the Special Investigations Unit within, etc., respectfully

REPORT:

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, pages 3-5, by striking SECTIONS 1-3 and inserting:

/    SECTION    1.    Chapter 3, Title 23 of the 1976 Code is amended by adding:

"Article 10

Special Investigations Unit

Section 23-3-810.    (A)    The Special Investigations Unit is established within the South Carolina Law Enforcement Division. In accordance with Article 1, Chapter 35, Title 43, the unit shall receive all allegations of abuse, neglect, and exploitation of vulnerable adults in facilities operated or contracted for operation by the Department of Mental Health or the Department of Disabilities and Special Needs and shall investigate those reports in which there are allegations or evidence of criminal conduct. The unit shall refer those reports in which there are no allegations or evidence of criminal conduct to the Long Term Care Ombudsman Program for investigation in accordance with Article 1, Chapter 35, Title 43. The unit also shall investigate vulnerable adult fatalities as provided for in Article 5, Chapter 35, Title 43.

(B)    Upon conclusion of its investigation of abuse, neglect, or exploitation of a vulnerable adult, the unit shall:

(1)    refer the case to the circuit solicitor in the appropriate jurisdiction, if the unit finds that there is sufficient evidence to determine probable cause that a crime has been committed;

(2)    in the case of a vulnerable adult fatality, further investigate the fatality in accordance with Article 5.

(C)    The unit also shall:

(1)    establish a toll-free number, which must be operated twenty-four hours a day, seven days a week;

(2)    develop and provide training to law enforcement personnel, facility staff, the Long Term Care Ombudsman, and the Adult Protective Services Program about investigation and prosecution of abuse and neglect of vulnerable adults;

(3)    annually report to the Governor, the General Assembly, Protection and Advocacy for People with Disabilities, Inc., the Long Term Care Ombudsman, and the Directors of the Departments of Health and Human Services, Mental Health, and Disabilities and Special Needs. The report shall specify problems identified in the investigation and prosecution of abuse, neglect, and exploitation of vulnerable adults and shall contain recommendations, if any, for legislative action.

(D)    For purposes of this section 'vulnerable adult' has the same meaning as defined in Section 43-35-10."

SECTION    2.    Section 43-35-10(4) and (5) of the 1976 Code, as added by Act 110 of 1993, are amended to read:

"(4)    'Facility' means a nursing care facility, community residential care facility, a psychiatric hospital, or a facility any residential program operated or contracted for operation by the State Department of Mental Health or the South Carolina Department of Mental Retardation Department of Disabilities and Special Needs.

(5)    'Investigative entity' means the Long Term Care Ombudsman Program, the Special Investigations Unit of the South Carolina Law Enforcement Division, local law enforcement, or the Adult Protective Services Program in the Department of Social Services."

SECTION    3.    Section 43-35-15 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-15.    (A)    The Long Term Care Ombudsman Program shall investigate or cause to be investigated reports of alleged abuse, neglect, and exploitation of vulnerable adults occurring in facilities, except those facilities provided for in subsection (B). However, the Long Term Care Ombudsman Program shall refer all reports of abuse, neglect, and exploitation to the appropriate law enforcement agency if there is an indication of criminal conduct. The Long Term Care Ombudsman Program may develop policies, procedures, and memoranda of agreement to be used in reporting these incidents and in furthering its investigations. The Long Term Care Ombudsman Program must not delegate its responsibility to investigate reports of alleged abuse, neglect, and exploitation to the facilities or to the entities that operate or contract for the operation of the facilities. Nothing in this chapter precludes the Department of Mental Health, the Department of Disabilities and Special Needs, or their contractors from performing administrative responsibilities and ensuring compliance with applicable state and federal requirements.

(B)    The Special Investigations Unit, South Carolina Law Enforcement Division, created pursuant to Section 23-3-810, shall receive all reports of alleged abuse, neglect, and exploitation in facilities operated or contracted for operation by the Department of Mental Health or the Department of Disabilities and Special Needs. The unit shall investigate those reports in which there are allegations or evidence of criminal conduct, and upon completion of its investigation, the unit shall refer the case to the circuit solicitor in the appropriate jurisdiction if the unit finds that there is sufficient evidence to determine probable cause that a crime has been committed. The unit shall refer to the Long Term Care Ombudsman Program for investigation those reports in which there are no allegations or evidence of criminal conduct. The Special Investigations Unit may develop policies, procedures, and memoranda of agreement to be used in reporting these incidents and in furthering its investigations.

(C)    The Adult Protective Services Program, Department of Social Services, shall investigate or cause to be investigated reports of alleged abuse, neglect, and exploitation of vulnerable adults occurring in all settings other than facilities and where appropriate, provide protective services those facilities for which the Long Term Care Ombudsman Program or the Special Investigations Unit are responsible for the investigation pursuant to this section. However, the Adult Protective Services Program shall refer all reports of abuse, neglect, and exploitation to the appropriate law enforcement agency if there is an indication of criminal conduct. The Adult Protective Services Program may promulgate regulations and develop policies, procedures, and memoranda of agreement to be used in reporting these incidents, in furthering its investigations, and in providing protective services."    /

Amend the bill further, as and if amended, pages 6-8, by striking SECTIONS 5-7 and inserting:

/    SECTION    5.    Section 43-35-25 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-25.    (A)    A physician, nurse, dentist, optometrist, medical examiner, coroner, other medical, mental health or allied health professional, Christian Science practitioner, religious healer, school teacher, counselor, psychologist, mental health or mental retardation specialist, social or public assistance worker, caregiver, staff or volunteer of an adult daycare center or of a facility, or law enforcement officer having reason to believe that a vulnerable adult has been or is likely to be abused, neglected, or exploited shall report the incident in accordance with this section. Any other person who has actual knowledge that a vulnerable adult has been abused, neglected, or exploited shall report the incident in accordance with this section.

(B)    Except as provided in subsection (A), any other person who has reason to believe that a vulnerable adult has been or may be abused, neglected, or exploited may report the incident.

(C)    A person required to report pursuant to this section is personally responsible for making the report; however, a state agency may make a report on behalf of an agency employee if the procedure the agency uses for reporting has been approved in writing by the investigative entity to which the report is to be made.

(D)    A person required to report under this section must report the incident within twenty-four hours or the next business day. A report must be made in writing or orally by telephone or otherwise to:

(1)    the Long Term Care Ombudsman Program for incidents occurring in facilities, except those facilities provided for in item (2); and

(2)    the Special Investigations Unit for incidents occurring in facilities operated or contracted for operation by the Department of Mental Health or the Department of Disabilities and Special Needs; and

(3)    to the Adult Protective Services Program for incidents occurring in all other settings.

(E)    In the event If an investigative entity receives a report which that is not within its investigative jurisdiction, it the investigative entity shall forward the report to the appropriate investigative entity not later than the next business day. In all incidents where the allegation of abuse, neglect, or exploitation may be criminal and the incident did not occur in a facility operated or contracted for operation by the Department of Mental Health or the Department of Disabilities and Special Needs, a report must be made in accordance with Section 43-35-40 to the appropriate law enforcement agency.

(E)(F)    No facility may develop policies or procedures that interfere with the reporting requirements of this section.

(F)(G)    Provided the mandatory reporting requirements of this section are met, nothing in this section precludes a person from also reporting directly to law enforcement, and in cases of an emergency, law enforcement must also be contacted."

SECTION    6.    Section 43-35-35 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-35.    (A)    A person required to report or investigate cases under this chapter who has probable cause to believe that a vulnerable adult died as a result of abuse or neglect shall report the death and suspected cause of death to the coroner or medical examiner. The coroner or medical examiner shall conduct an investigation and may conduct or order an autopsy. The coroner or medical examiner must report the investigative findings to the Special Investigations Unit, law enforcement, and the circuit solicitor in the appropriate jurisdiction.

(B)    All deaths involving a vulnerable adult in a facility operated or contracted for operation by the Department of Mental Health, the Department of Disabilities and Special Needs, or their contractors must be referred to the Special Investigations Unit for investigation in accordance with Article 5."

SECTION    7.    Section 43-35-40 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-40.    Upon receiving a report, the investigative entity Long Term Care Ombudsman Program and the Adult Protective Services Program promptly shall initiate an investigation and within two business days of receiving the report must review the report for the purpose of reporting to law enforcement those cases requiring involvement of law enforcement which indicate criminal conduct. A report to law enforcement must be made within one business day of completing the review. The law enforcement agency shall initiate an incident report and provide, upon request, a copy to an entity conducting an investigation pursuant to this chapter or any other provision of state or federal law."    /

Amend the bill further, as and if amended, pages 11-13, by striking Section 43-35-560 in its entirety and inserting:

/    Section 43-35-560.    (A)    There is created within the State Law Enforcement Division the Vulnerable Adults Fatalities Review Committee, which is under the supervision of the Director of the Special Investigations Unit, and is composed of:

(1)    the Director of the South Carolina Department of Social Services;

(2)    the Commissioner of the South Carolina Department of Health and Environmental Control;

(3)    the Executive Director of the South Carolina Criminal Justice Academy;

(4)    the Director of the Special Investigations Unit at the State Law Enforcement Division;

(5)    the Director of the South Carolina Department of Alcohol and Other Drug Abuse Services;

(6)    the Director of the South Carolina Department of Mental Health;

(7)    the Director of the South Carolina Department of Disabilities and Special Needs;

(8)    the Director of the Office on Aging;

(9)    the Executive Director of Protection and Advocacy for People with Disabilities, Inc;

(10)    two representatives from two county board of disabilities and special needs established pursuant to Section 44-20-375;

(11)    a county coroner or medical examiner;

(12)    an attorney with experience in prosecuting crimes against vulnerable adults;

(13)    a physician with experience in treating vulnerable adults, appointed from recommendations submitted by the South Carolina Medical Association;

(14)    a solicitor;

(15)    a forensic pathologist; and

(16)    two members of the public at large, one of whom must represent a private nonprofit community residential care facility and one whom must represent a public for profit community residential care facility, both of which must provide services to vulnerable adults.

(B)    Those members enumerated in items (1) through (10) shall serve ex officio and may appoint a designee, who has administrative or program responsibilities for vulnerable adults, to serve in their place from their particular departments or agencies. The remaining members, including the coroner or medical examiner and solicitor, who shall serve ex officio, must be appointed by the Governor for terms of four years and until their successors are appointed and qualify.

(C)    A chairman and vice-chairman of the committee must be elected from among the members by a majority vote of the membership for a term of two years.

(D)    Meetings of the committee must be held at least quarterly. A majority of the committee constitutes a quorum.

(E)    Each ex officio member shall provide sufficient staff and administrative support to carry out the responsibilities of this article.    /

Amend the bill further, as and if amended, page 16, by striking SECTION 12 and inserting:

/    SECTION    12.    Section 44-7-2910(B)(1) of the 1976 Code, as added by Act 242 of 2002, is amended by adding at the end:

"(e)    a residential program operated or contracted for operation by the Department of Mental Health or the Department of Disabilities and Special Needs."    /

Renumber sections to conform.

Amend title to conform.

JOHN D. HAWKINS for Committee.

            

STATEMENT OF ESTIMATED FISCAL IMPACT

ESTIMATED FISCAL IMPACT ON GENERAL FUND EXPENDITURES:

A Cost to the General Fund (See Below)

ESTIMATED FISCAL IMPACT ON FEDERAL & OTHER FUND EXPENDITURES:

$0 (No additional expenditures or savings are expected)

EXPLANATION OF IMPACT:

State Law Enforcement Division - SLED

SLED indicates there will be a cost to the general fund of the State to carry out the responsibilities as outlined in this bill. However, implementation costs may vary depending on intent with regard to the duties and responsibilities of the investigative staff. First year cost would be $718,859 if it is the intent that these agents receive training and equipment necessary to respond to emergency situations and conduct criminal investigations other than those specified in this bill. Such costs would include, among other things, providing each agent with two weapons, a protective vest, several radios and handcuffs. If it is legislative intent that these agents investigate only complaints relative to certain facilities, then first year cost could be estimated at $516,440 which includes purchasing vehicles and phone service, but excludes those items listed above. Cost estimates for SLED are summarized below:

Summary of Estimated Cost to SLED

Scenario 1    Scenario 2

Agents

(7 FTE's @ $47,525 with fringe)    $332,675    $332,675

Other Operating Expenses    $100,884    $ 20,265

Toll-Free Phone Line    $ 6,000    $ 6,000

Subtotal - Recurring Cost Estimate    $439,559    $358,940

Non-recurring (First Year Only)    $279,300    $157,500

Total - First Year Cost    $718,859    $516,440

Lieutenant Governor's Office

The Long Term Care Ombudsman within the Office on Aging currently has abuse, neglect and exploitation of vulnerable adult investigative responsibilities within existing statutes. However, no staff or resources exist to carry out those responsibilities. The bill further emphasizes the Ombudsman's responsibilities and distinguishes them from SLED's responsibilities with regard to investigations. The Office on Aging indicates there are over 6,000 complaints annually and estimates the cost of carrying out its investigative responsibilities at $390,250. This includes salary and fringe for seven additional staff at $302,390 and other operating expenses (rent, travel, supplies, phones, etc.) estimated at $87,860 annually.

Department of Social Services

The department indicates bill would have no impact on the General Fund of the State or federal and/or other funds.

The Department of Disabilities and Special Needs indicates there would be no additional cost associated with enactment. The Department of Mental Health has yet to submit a response for review and analysis.

Approved By:

Don Addy

Office of State Budget

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 10, CHAPTER 3, TITLE 23 SO AS TO ESTABLISH THE SPECIAL INVESTIGATIONS UNIT WITHIN THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION TO INVESTIGATE ABUSE, NEGLECT, AND EXPLOITATION OF VULNERABLE ADULTS AND VULNERABLE ADULT FATALITIES; TO AMEND SECTION 43-35-10, AS AMENDED, RELATING TO THE DEFINITION OF TERMS IN THE OMNIBUS ADULT PROTECTION ACT, SO AS TO REVISE THE DEFINITION OF FACILITIES TO INCLUDE RESIDENTIAL PROGRAMS OPERATED BY, OR CONTRACTED, WITH THE DEPARTMENT OF MENTAL HEALTH, THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, OR LOCAL DISABILITIES BOARDS AND THE DEFINITION OF "INVESTIGATIVE ENTITY" TO INCLUDE THE SPECIAL INVESTIGATIONS UNIT IN THE STATE LAW ENFORCEMENT DIVISION; TO AMEND SECTION 43-35-15, RELATING TO THE DUTIES AND PROCEDURES OF INVESTIGATIVE ENTITIES IN CONNECTION WITH ABUSE, NEGLECT, AND EXPLOITATION OF VULNERABLE ADULTS, SO AS TO PROVIDE THAT THE SPECIAL INVESTIGATIONS UNIT SHALL RECEIVE REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF VULNERABLE ADULTS IN FACILITIES OPERATED BY, OR CONTRACTED WITH, THE DEPARTMENT OF MENTAL HEALTH, THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, OR LOCAL DISABILITIES BOARDS, TO CLARIFY THE INVESTIGATIVE RESPONSIBILITIES OF THE LONG TERM CARE OMBUDSMAN AND THE ADULT PROTECTIVE SERVICES PROGRAM AT THE DEPARTMENT OF SOCIAL SERVICES, AND TO FURTHER PROVIDE FOR THE INVESTIGATION OF THESE INCIDENTS; TO AMEND SECTION 43-35-20, RELATING TO ADDITIONAL POWERS OF INVESTIGATIVE ENTITIES, SO AS TO PROVIDE THAT THESE ENTITIES HAVE ACCESS TO FACILITIES AS PERMITTED BY LAW; TO AMEND SECTION 43-35-25, RELATING TO PERSONS REQUIRED TO REPORT ABUSE, NEGLECT, AND EXPLOITATION OF VULNERABLE ADULTS, SO AS TO FURTHER CLARIFY THESE REPORTING RESPONSIBILITIES AND TO REQUIRE INCIDENTS INVOLVING CRIMINAL INTENT TO BE REPORTED TO LAW ENFORCEMENT; TO AMEND SECTION 43-35-35, RELATING TO REPORTING VULNERABLE ADULT DEATHS BELIEVED TO HAVE RESULTED FROM ABUSE OR NEGLECT, SO AS TO PROVIDE THAT ALL DEATHS OF A VULNERABLE ADULT IN FACILITIES OPERATED BY, OR CONTRACTED WITH, THE DEPARTMENT OF MENTAL HEALTH, THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, OR A LOCAL DISABILITIES BOARD MUST BE REPORTED TO THE SPECIAL INVESTIGATIONS UNIT; TO AMEND SECTION 43-35-40, RELATING TO INVESTIGATIVE ENTITIES REPORTING INCIDENTS INVOLVING CRIMINAL INTENT TO LAW ENFORCEMENT, SO AS TO FURTHER CLARIFY THIS REPORTING REQUIREMENT; TO AMEND SECTION 43-35-65, RELATING TO NOTICES REQUIRED TO BE PLACED IN FACILITIES CONCERNING DUTIES OF FACILITY PERSONNEL, SO AS TO REQUIRE THESE NOTICES TO CONTAIN E-MAIL ADDRESSES AND FAX NUMBERS OF THE LONG TERM CARE OMBUDSMAN PROGRAM, THE SPECIAL INVESTIGATIONS UNIT, AND LAW ENFORCEMENT; TO AMEND SECTION 43-35-80, RELATING TO ACTIONS OF THE ATTORNEY GENERAL AGAINST A PERSON OR FACILITY FOR FAILING TO EXERCISE REASONABLE CARE IN OPERATING A FACILITY FOR VULNERABLE ADULTS, SO AS TO PROVIDE THAT REFERRALS FOR SUCH ACTIONS MAY ALSO BE MADE BY THE SPECIAL INVESTIGATIONS UNIT; TO ADD ARTICLE 5 TO CHAPTER 35, TITLE 43 SO AS TO FURTHER PROVIDE FOR THE POWERS AND DUTIES OF THE SPECIAL INVESTIGATIONS UNIT IN THE INVESTIGATION OF VULNERABLE ADULT FATALITIES AND TO ESTABLISH THE VULNERABLE ADULT FATALITIES REVIEW COMMITTEE AND TO PROVIDE FOR ITS MEMBERS, POWERS, AND DUTIES; TO ADD SECTION 17-5-555 SO AS TO REQUIRE THE CORONER OR MEDICAL EXAMINER TO REPORT THE DEATH OF A VULNERABLE ADULT TO THE SPECIAL INVESTIGATIONS UNIT UNDER CERTAIN CIRCUMSTANCES; AND TO AMEND SECTION 44-7-2910, AS AMENDED, RELATING TO CRIMINAL RECORDS CHECKS FOR DIRECT CAREGIVERS, SO AS TO REQUIRE THESE RECORDS CHECKS ON DIRECT CAREGIVERS IN RESIDENTIAL PROGRAMS OPERATED BY, OR CONTRACTED WITH, THE DEPARTMENT OF MENTAL HEALTH, THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, AND LOCAL DISABILITIES BOARDS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1.    Chapter 3, Title 23 of the 1976 Code is amended by adding:

"Article 10

Special Investigations Unit

Section 23-3-810.    (A)    The Special Investigations Unit is established within the South Carolina Law Enforcement Division. In accordance with Article 1, Chapter 35, Title 43, the unit shall receive all allegations of abuse, neglect, and exploitation of vulnerable adults in facilities operated by, or contracted with, the Department of Mental Health, the Department of Disabilities and Special Needs, or a disabilities board established pursuant to Section 44-20-375 and shall investigate those reports in which there are allegations or evidence of criminal intent. The unit shall refer those reports in which there are no allegations or evidence of criminal intent to the Long Term Care Ombudsman Program for investigation in accordance with Article 1, Chapter 35, Title 43. The unit also shall investigate vulnerable adult fatalities as provided for in Article 5, Chapter 35, Title 43.

(B)    Upon conclusion of its investigation of abuse, neglect, or exploitation of a vulnerable adult the unit shall:

(1)    refer the case to the proper law enforcement agency if the unit finds that there is sufficient evidence to determine probable cause that a crime has been committed;

(2)    in the case of a vulnerable adult fatality, further investigate the fatality in accordance with Article 5.

(C)    The unit also shall:

(1)    establish a toll-free number, which must be operated twenty-four hours a day, seven days a week;

(2)    develop and provide training to law enforcement personnel, facility staff, the Long Term Care Ombudsman, and the Adult Protective Services Program about investigation and prosecution of abuse and neglect of vulnerable adults;

(3)    annually report to the Governor, the General Assembly, Protection and Advocacy for People with Disabilities, Inc., the Long Term Care Ombudsman, and the Directors of the Departments of Health and Human Services, Mental Health, and Developmental Disabilities and Special Needs. The report shall specify problems identified in the investigation and prosecution of abuse, neglect, and exploitation of vulnerable adults and shall contain recommendations, if any for legislative action.

(D)    For purposes of this section 'vulnerable adult' has the same meaning as defined in Section 43-35-10."

SECTION    2.    Section 43-35-10(4) and (5) of the 1976 Code, as added by Act 110 of 1993, are amended to read:

"(4)    'Facility' means a nursing care facility, community residential care facility, a psychiatric hospital, or any residential program a facility operated by, or contracted for operation by with, the State Department of Mental Health, or the South Carolina Department of Mental Retardation the Department of Disabilities and Special Needs, or a disabilities board established pursuant to Section 44-20-375.

(5)    'Investigative entity' means the Long Term Care Ombudsman Program, the Special Investigations Unit of the South Carolina Law Enforcement Division, or the Adult Protective Services Program in the Department of Social Services."

SECTION    3.    Section 43-35-15 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-15.    (A)    The Long Term Care Ombudsman Program shall investigate or cause to be investigated reports of alleged abuse, neglect, and exploitation of vulnerable adults occurring in facilities, except those facilities provided for in subsection (B). However, the Long Term Care Ombudsman Program shall refer all reports of abuse, neglect, and exploitation to the appropriate law enforcement agency if there is an indication of criminal intent. The Long Term Care Ombudsman Program may develop policies, procedures, and memoranda of agreement to be used in reporting these incidents and in furthering its investigations. The Long Term Care Ombudsman Program must not allow an agency or facility to conduct its own investigations of abuse, neglect, or exploitation within facilities the agency or facility operates or contracts with, except that the agency or facility may use the results of investigations conducted by the Long Term Care Ombudsman Program for quality control purposes.

(B)    The Special Investigations Unit, South Carolina Law Enforcement Division, created pursuant to Section 23-3-810, shall receive all reports of alleged abuse, neglect, and exploitation in facilities operated by, or contracted with, the Department of Mental Health, the Department of Disabilities and Special Needs, or a disabilities board established pursuant to Section 44-20-375. The unit shall investigate those reports in which there are allegations or evidence of criminal intent, and upon completion of its investigation, the unit shall refer the case to the proper law enforcement agency if the unit finds that there is sufficient evidence to determine probable cause that a crime has been committed. The unit shall refer to the Long Term Care Ombudsman Program for investigation those reports in which there are no allegations or evidence of criminal intent. The Special Investigations Unit may develop policies, procedures, and memoranda of agreement to be used in reporting these incidents and in furthering its investigations.

(C)    The Adult Protective Services Program, Department of Social Services shall investigate or cause to be investigated reports of alleged abuse, neglect, and exploitation of vulnerable adults occurring in all settings other than facilities and where appropriate, provide protective services those facilities for which the Long Term Care Ombudsman Program or the Special Investigations Unit are responsible for the investigation pursuant to this section. However, the Adult Protective Services Program shall refer all reports of abuse, neglect, and exploitation to the appropriate law enforcement agency if there is an indication of criminal intent. The Adult Protective Services Program may promulgate regulations and develop policies, procedures, and memoranda of agreement to be used in reporting these incidents, in furthering its investigations, and in providing protective services."

SECTION    4.    Section 43-35-20(1) of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"(1)    have access to facilities for the purpose of conducting investigations, as otherwise permitted by law;"

SECTION    5.    Section 43-35-25 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-25.    (A)    A physician, nurse, dentist, optometrist, medical examiner, coroner, other medical, mental health or allied health professional, Christian Science practitioner, religious healer, school teacher, counselor, psychologist, mental health or mental retardation specialist, social or public assistance worker, caregiver, staff or volunteer of an adult daycare center or of a facility, or law enforcement officer having reason to believe that a vulnerable adult has been or is likely to be abused, neglected, or exploited shall report the incident in accordance with this section. Any other person who has actual knowledge that a vulnerable adult has been abused, neglected, or exploited shall report the incident in accordance with this section.

(B)    Except as provided in subsection (A), any other person who has reason to believe that a vulnerable adult has been or may be abused, neglected, or exploited may report the incident.

(C)    A person required to report pursuant to this section is personally responsible for making the report; however, a state agency may make a report on behalf of an agency employee if the procedure the agency uses for reporting has been approved in writing by the investigative entity to which the report is to be made.

(D)    A person required to report under this section must report the incident within twenty-four hours or the next business day. A report must be made in writing or orally by telephone or otherwise to;

(1)    the Long Term Care Ombudsman Program for incidents occurring in facilities, except those facilities provided for in item (2); and

(2)    the Special Investigations Unit for incidents occurring in facilities operated by, or contracted with, the Department of Mental Health, the Department of Disabilities and Special Needs, or a disabilities board established pursuant to Section 40-23-375;

(3)    to the Adult Protective Services Program for incidents occurring in all other settings.

(E)    In the event If an investigative entity receives a report which that is not within its investigative jurisdiction, it the investigative entity shall forward the report to the appropriate investigative entity not later than the next business day. In all incidents where the allegation of abuse, neglect, or exploitation may be criminal and the incident did not occur in a facility operated by, or contracted with, the Department of Mental Health, the Department of Disabilities and Special Needs, or a disabilities board established pursuant to Section 40-23-375, a report must be made in accordance with Section 43-35-40 to the appropriate law enforcement agency.

(EF)    No facility may develop policies or procedures that interfere with the reporting requirements of this section.

(FG)    Provided the mandatory reporting requirements of this section are met, nothing in this section precludes a person from also reporting directly to law enforcement, and in cases of an emergency, law enforcement must also be contacted."

SECTION    6.    Section 43-35-35 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-35.    (A)    A person required to report or investigate cases under this chapter who has probable cause to believe that a vulnerable adult died as a result of abuse or neglect shall report the death and suspected cause of death to the coroner or medical examiner. The coroner or medical examiner shall conduct an investigation and may conduct or order an autopsy. The coroner or medical examiner must report the investigative findings to the Special Investigations Unit, law enforcement, and the circuit solicitor in the appropriate jurisdiction.

(B)    All deaths involving a vulnerable adult in a facility operated by, or contracted with the Department of Mental Health or the Department of Disabilities and Special Needs, its contractors or a disabilities board established pursuant to Section 44-20-375 must be referred to the Special Investigations Unit for investigation in accordance with Article 5."

SECTION    7.    Section 43-35-40 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-40.    Upon receiving a report the investigative entity Long Term Care Ombudsman Program and the Adult Protective Services Program promptly shall initiate an investigation and within two business days of receiving the report must review the report for the purpose of reporting to law enforcement those cases requiring involvement of law enforcement which indicate criminal intent. A report to law enforcement must be made within one business day of completing the review. The law enforcement agency shall initiate an incident report and provide upon request a copy to an entity conducting an investigation pursuant to this chapter or any other provision of state or federal law."

SECTION    8.    Section 43-35-65 of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-65.    A facility as defined in Section 43-35-10 shall prominently display notices stating the duties of its personnel under this chapter, the text of which must be provided by the Long Term Care Ombudsman Program. The notices must also include the addresses and addresses, telephone numbers, fax numbers, and e-mail addresses of the Long Term Care Ombudsman Program, the Special Investigations Unit, and local law enforcement."

SECTION    9.    Section 43-35-80(A) of the 1976 Code, as added by Act 110 of 1993, is amended to read:

"Section 43-35-80.    (A)    Notwithstanding any regulatory or administrative penalty that may be assessed and in addition to a private civil cause of action that may be brought against a person or facility based on an action or failure to act that otherwise constitutes abuse, neglect, or exploitation under this chapter, the Attorney General, upon referral from the Long Term Care Ombudsman Program or the Special Investigations Unit, may bring an action against a person who fails through pattern or practice to exercise reasonable care in hiring, training, or supervising facility personnel or in staffing or operating a facility, and this failure results in the commission of abuse, neglect, exploitation, or any other crime against a vulnerable adult in a facility. A person or facility which verifies good standing of the employee with the appropriate licensure or accrediting entity is rebuttably presumed to have acted reasonably regarding the hiring."

SECTION    10.    Chapter 35, Title 43 of the 1976 Code is amended by adding:

"Article 5

Vulnerable Adult Fatalities

Section 43-35-500.    In addition to the definitions contained in Section 43-35-10, for purposes of this article:

(1)    'Committee' means the Vulnerable Adult Fatalities Review Committee.

(2)    'SLED' means the State Law Enforcement Division.

(3)    'Meeting' means both in-person meetings and meetings through telephone conferencing.

(4)    'Preventable death' means a death that reasonable medical, social, legal, psychological, or educational intervention may have prevented.

(5)    'Provider of medical care' means a licensed health care practitioner who provides, or a licensed health care facility through which is provided, medical evaluation or treatment, including dental and mental health evaluation or treatment.

(6)    'Unit' means the Special Investigations Unit of the South Carolina Law Enforcement Division.

(7)    'Working day' means Monday through Friday, excluding official state holidays.

Section 43-35-510.    It is the policy of this State that:

(1)    Every vulnerable adult is entitled to live in safety and in health.

(2)    Responding to deaths of vulnerable adults is a state and a community responsibility.

(3)    When a vulnerable adult dies, the response by the State and the community to the death must include an accurate and complete determination of the cause of death, the provision of services to surviving family members, and the development and implementation of measures to prevent future deaths from similar causes and may include court action, including prosecution of persons who may be responsible for the death and family court proceedings to protect other vulnerable adults in the care of the responsible person.

(4)    Professionals from disparate disciplines and agencies that have responsibilities for vulnerable adults and expertise that can promote safety and well-being of vulnerable adults should share their expertise and knowledge toward the goals of determining the causes of deaths of vulnerable adults, planning and providing services to nonoffending family members, and preventing future vulnerable adult deaths.

(5)    A greater understanding of the incidence and causes of deaths of vulnerable adults is necessary if the State is to prevent future vulnerable adult deaths.

(6)    Multi-disciplinary and multi-agency reviews of vulnerable adult deaths can assist the State in the investigation of vulnerable adult deaths, in the development of a greater understanding of the incidence and causes of vulnerable adult deaths and the methods for preventing such deaths, and in identifying gaps in services to vulnerable adults and families.

(7)    Access to information regarding vulnerable adults and their families is necessary to achieve the mandates and purposes of this article.

(8)    Competent investigative services must be sensitive to the needs of South Carolina's vulnerable adults and their families and not be unnecessarily intrusive and should be achieved through training, awareness, and technical assistance.

Section 43-35-520.    The Special Investigations Unit, at the State Law Enforcement Division, created pursuant to Section 23-3-810, shall, in addition to its investigation responsibilities under that section or Article 1, investigate cases of vulnerable adult fatalities.

Section 43-35-530.    Upon receipt of a report of a vulnerable adult death, as required by Section 17-5-555 or Section 43-35-35, the Special Investigations Unit shall:

(1) investigate and gather all information on the vulnerable adult fatality. The coroner or medical examiner immediately must request an autopsy if the unit determines that an autopsy is necessary. The autopsy must be performed by a pathologist with forensic training as soon as possible. The forensic pathologist must inform the unit of the findings within forty-eight hours of completion of the autopsy. If the autopsy reveals the cause of death to be pathological or an unavoidable accident, the case must be closed by the unit. If the autopsy reveals physical or sexual trauma, suspicious markings, or other findings that are questionable or yields no conclusion to the cause of death, the unit immediately must begin an investigation;

(2)    request assistance of any other local, county, or state agency to aid in the investigation;

(3)    upon receipt of additional investigative information, reopen a case for another coroner's inquest;

(4)    upon receipt of the notification required by item (1), review agency records for information regarding the deceased vulnerable adult or family. Information available to the department pursuant to Section 43-35-570 and information that is public under Chapter 4, Title 30, the Freedom of Information Act, must be available as needed to the county coroner or medical examiner, the Long Term Care Ombudsman Program, the Special Investigations Unit, and the Department of Social Services, Adult Protective Services Program.

Section 43-35-540.    Upon request of the Special Investigations Unit and as necessary to carry out the unit's duties, the unit immediately must be provided:

(1)    by a provider of medical care, access to information and records regarding a vulnerable adult whose death is being investigated by the unit or reviewed by the committee;

(2)    access to all information and records maintained by any state, county, or local government agency including, but not limited to, birth certificates, law enforcement investigation data, county coroner or medical examiner investigation data, parole and probation information and records, and information and records of social services and health agencies that provided services to the vulnerable adult or family.

Section 43-35-550.    When necessary in the discharge of the duties of the Special Investigations Unit and upon application of the unit, the clerks of court shall issue a subpoena or subpoena duces tecum to any state, county, or local agency, board, or commission or to any representative of any state, county, or local agency, board, or commission or to a provider of medical care to compel the attendance of witnesses and production of documents, books, papers, correspondence, memoranda, and other relevant records to the discharge of the unit's duties. Failure to obey a subpoena or subpoena duces tecum issued pursuant to this section may be punished as contempt.

Section 43-35-560.    (A)    There is created within the State Law Enforcement Division the Vulnerable Adults Fatalities Review Committee, which is under the supervision of the director of the Special Investigations Unit, and is composed of:

(1)    the Commissioner of the South Carolina Department of Social Services;

(2)    the Commissioner of the South Carolina Department of Health and Environmental Control;

(3)    the Executive Director of the South Carolina Criminal Justice Academy;

(4)    the Director of the Special Investigations Unit at the State Law Enforcement Division;

(5)    the Director of the South Carolina Commission on Alcohol and Drug Abuse;

(6)    the Director of the Department of Mental Health;

(7)    the Director of the Department of Disabilities and Special Needs;

(8)    the Executive Director of Protection and Advocacy for People with Disabilities, Inc;

(9)    two representatives from two county board of disabilities and special needs established pursuant to Section 44-20-375;

(10)    a county coroner or medical examiner;

(11)    an attorney with experience in prosecuting crimes against vulnerable adults;

(12)    a physician with experience in treating vulnerable adults, appointed from recommendations submitted by the South Carolina Medical Association;

(13)    a solicitor;

(14)    a forensic pathologist;

(15)    two members of the public at large, one of whom must represent a private nonprofit community residential care facility and one whom must represent a public for profit community residential care facility, both of which must provide services to vulnerable adults.

(B)    Those members enumerated in items (1) through (9) shall serve ex officio and may appoint a designee, who has administrative or program responsibilities for vulnerable adults, to serve in their place from their particular departments or agencies. The remaining members, including the coroner or medical examiner and solicitor, who shall serve ex officio, must be appointed by the Governor for terms of four years and until their successors are appointed and qualify.

(C)    A chairman and vice-chairman of the committee must be elected from among the members by a majority vote of the membership for a term of two years.

(D)    Meetings of the committee must be held at least quarterly. A majority of the committee constitutes a quorum.

(E)    Each ex officio member shall provide sufficient staff and administrative support to carry out the responsibilities of this article.

Section 43-35-570.    (A)    The purpose of the Vulnerable Adult Fatalities Review Committee is to decrease the incidence of preventable vulnerable adult deaths by:

(1)    developing an understanding of the causes and incidences of vulnerable adult deaths;

(2)    developing plans for and implementing changes within the agencies represented on the committee which will prevent vulnerable adult deaths; and

(3)    advising the Governor and the General Assembly on statutory, policy, and practice changes that will prevent vulnerable adult deaths.

(B)    To achieve its purpose, the committee shall:

(1)    meet with the Special Investigations Unit no later than one month after the unit receives notification by the county coroner or medical examiner pursuant to Section 17-5-555 or Section 43-35-35 to review the investigation of the death;

(2)    undertake annual statistical studies of the incidence and causes of vulnerable adult fatalities in this State. The studies shall include an analysis of community and public and private agency involvement with the decedents and their families before and subsequent to the deaths;

(3)    consider training, including cross-agency training, consultation, technical assistance needs, and service gaps;

(4)    educate the public regarding the incidences and causes of vulnerable adult deaths, the public role in preventing these deaths, and specific steps the public can undertake to prevent vulnerable adult deaths. The committee shall enlist the support of civic, philanthropic, and public service organizations in performing the committee's educational duties;

(5)    develop and implement policies and procedures for its own governance and operation;

(6)    submit to the Governor and the General Assembly, an annual written report and any other reports prepared by the committee including, but not limited to, the committee's findings and recommendations for changes to any statute, regulation, policy, or procedure that the committee determines is needed to decrease the incidence of preventable vulnerable adult deaths. Annual reports must be made available to the public.

Section 43-35-580.    (A)    Meetings of the Special Investigations Unit and of the Vulnerable Adult Fatalities Review Committee are closed to the public and are not subject to Chapter 4, Title 30, the Freedom of Information Act, when the unit or committee is discussing individual cases of vulnerable adult deaths.

(B)    Except as provided in subsection (C), meetings of the committee are open to the public and subject to the Freedom of Information Act when the committee is not discussing individual cases of vulnerable adult deaths.

(C)    Information identifying a deceased vulnerable adult or a family member, guardian, or caretaker of a deceased vulnerable adult, or an alleged or suspected perpetrator of abuse or neglect upon a vulnerable adult may not be disclosed during a public meeting and information regarding the involvement of any agency with the deceased vulnerable adult or family may not be disclosed during a public meeting.

(D)    Violation of this section is a misdemeanor and, upon conviction, a person must be fined not more than five hundred dollars or imprisoned not more than six months, or both.

Section 43-35-590.    (A) All information and records acquired by the unit and the committee in the exercise of their duties and responsibilities pursuant to this article are confidential, exempt from disclosure under Chapter 4, Title 30, the Freedom of Information Act, and only may be disclosed as necessary to carry out the unit's and committee's purposes and responsibilities.

(B)    Statistical compilations of data that do not contain information that would permit the identification of a person to be ascertained are public records.

(C)    Reports of the unit and the committee that do not contain information that would permit the identification of a person to be ascertained are public information.

(D)    Except as necessary to carry out the unit's and committee's duties and responsibilities, unit personnel and members of the committee and persons attending meetings may not disclose what transpired at a meeting that is not public under Section 43-35-580 and may not disclose information, the disclosure of which is prohibited by this section.

(E)    Members of the committee, persons attending a committee meeting, and persons who present information to the committee may not be required to disclose in any civil or criminal proceeding information presented in or opinions formed as a result of the meeting, except that information available from other sources is not immune from introduction into evidence through those sources solely because it was presented during proceedings of the committee or because it is maintained by the committee. Nothing in this subsection may be construed to prevent a person from testifying to information obtained independently of the committee or which is public information.

(F)    Information, documents, and records of the unit and of the committee are not subject to subpoena, discovery, or the Freedom of Information Act, except that information, documents, and records otherwise available from other sources are not immune from subpoena, discovery, or the Freedom of Information Act through those sources solely because they were presented during proceedings of the unit or committee or because they are maintained by the unit or the committee.

(G)    A person who violates a provision of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

Section 43-35-595.    The South Carolina Law Enforcement Division shall promulgate regulations necessary to carry out its responsibilities under this article."

SECTION    11.    Article 7, Chapter 5, Title 17 of the 1976 Code is amended by adding:

"Section 17-5-555.    (A)    The coroner or medical examiner, within twenty-four hours or one working day, whichever occurs first, must notify the Special Investigations Unit when a vulnerable adult dies in the county he serves:

(1)    as a result of violence, when unattended by a physician, and in any suspicious or unusual manner; or

(2)    when the death is unexpected and unexplained.

(B)    If the home or premises last inhabited by a vulnerable adult is not the scene of the death of the vulnerable adult, the coroner or medical examiner, while conducting an investigation of the death, may petition the local magistrate of the appropriate judicial circuit for a warrant to inspect the home or premises inhabited by the deceased before death. The local magistrate must issue the inspection warrant upon probable cause to believe that events in the home or premises may have contributed to the death of the vulnerable adult.

(C)    For purposes of this section:

(1)    'vulnerable adult' has the same meaning as defined in Section 43-35-10(11);

(2)    a vulnerable adult is not considered to be 'unattended by a physician' when a physician has, before death, provided diagnosis and treatment following a fatal injury;

(3)    'unexpected death' includes all vulnerable adult deaths that, before investigation, appear possibly to have been caused by trauma, suspicious, or obscure circumstances, or abuse or neglect."

SECTION    12.    Section 44-7-2910(B)(1) of the 1976 Code, as added by Act 242 of 2002, is amended by adding at the end:

"(e)    a residential program operated by, or contracted with, the Department of Mental Health, the Department of Disabilities and Special Needs, or a disabilities board established pursuant to Section 44-20-375 including, but not limited to, residential facilities designated as community training homes or supervised living programs."

SECTION    13.    This act takes effect upon approval by the Governor.

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This web page was last updated on Tuesday, June 23, 2009 at 2:08 P.M.