New Hampshire APS


1	State	2016 Statute Number	2016 Statute Language
2	New Hampshire	N.H. Rev. Stat. Ann. § 161-F:42. Purpose.	The purpose of this subdivision is to provide protection for vulnerable adults who are abused, neglected, or exploited. Implicit in this subdivision is the philosophy that whenever possible an adult's right to self-determination should be preserved, and that each adult should live in safe conditions and should live his own life without interruption from state government. Only when these principles become impossible to follow should legal proceedings be initiated in order to care for and protect such adults.
3		N.H. Rev. Stat. Ann. § 161-F:43. Definitions.	In this subdivision: I. "Protective services" means services and action which will, through voluntary agreement or through appropriate court action, prevent neglect, abuse or exploitation of vulnerable adults. Such services shall include, but not be limited to, supervision, guidance, counseling and, when necessary, assistance in the securing of nonhazardous living accommodations, and mental and physical examinations. II. "Abuse" means any one of the following: (a) "Emotional abuse" means the misuse of power, authority, or both, verbal harassment, or unreasonable confinement which results or could result in the mental anguish or emotional distress of a vulnerable adult. (b) "Physical abuse" means the use of physical force which results or could result in physical injury to a vulnerable adult. (c) "Sexual abuse" means contact or interaction of a sexual nature involving a vulnerable adult without his or her informed consent. III. "Neglect" means an act or omission which results or could result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional or physical health and safety of a vulnerable adult. IV. "Exploitation" means the illegal use of a vulnerable adult's person or property for another person's profit or advantage, or the breach of a fiduciary relationship through the use of a person or a person's property for any purpose not in the proper and lawful execution of a trust, including, but not limited to, situations where a person obtains money, property, or services from a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud. V. "Serious bodily injury" means any harm to the body which causes or could cause severe, permanent or protracted loss of or impairment to the health or of the function of any part of the body. VI. "Self-neglect" means an act or omission by a vulnerable adult which results or could result in the deprivation of essential services or supports necessary to maintain his or her minimum mental, emotional or physical health and safety. VII. "Vulnerable" means that the physical, mental, or emotional ability of a person is such that he or she is unable to manage personal, home, or financial affairs in his or her own best interest, or he or she is unable to act or unable to delegate responsibility to a responsible caretaker or caregiver.
4		N.H. Rev. Stat. Ann. § 161-F:44. Self-Neglect.	For the purposes of this subdivision, instances of suspected self-neglect shall be construed and acted upon in the same manner as instances of suspected neglect.
5		N.H. Rev. Stat. Ann. § 161-F:45. Exception.	Nothing in this subdivision shall be construed to mean a person is abused, neglected, exploited, or in need of protective services for the sole reason that he relies on or is being furnished treatment by spiritual means alone through prayer in accordance with the tenets and practices of a church or religious denomination of which he is a member or adherent.
6		N.H. Rev. Stat. Ann. § 161-F:46. Reports of Adult Abuse; Investigations.	Any person, including, but not limited to, physicians, other health care professionals, social workers, clergy, and law enforcement officials, suspecting or believing in good faith that any adult who is or who is suspected to be vulnerable has been subjected to abuse, neglect, self-neglect, or exploitation or is living in hazardous conditions shall report or cause a report to be made as follows: I. An oral report, by telephone or otherwise, shall be made immediately, followed by a written report, if so requested, to the commissioner or his authorized representative. When oral reports are made after working hours of the department, or on weekends or holidays, such reports shall be made to the police department of the appropriate political subdivision, or to the sheriff of the county, in which the alleged abuse, neglect or exploitation occurred. Law enforcement officials receiving reports under this paragraph shall notify the commissioner within 72 hours of receipt of such reports. II. Within 72 hours following receipt by the commissioner or his authorized representative of such oral reports, an investigation shall be initiated by the commissioner or his authorized representative. III. Investigations shall not be made if the commissioner or his authorized representative determines that the report is frivolous or without a factual basis.
7		N.H. Rev. Stat. Ann. § 161-F:47. Immunity From Liability.	Any person or agency, other than an alleged perpetrator, participating in good faith in the making of a report of an alleged incident of adult abuse, neglect or exploitation, providing information relative to such incident or following a reporting protocol developed jointly with the department, or who in good faith investigates the report, administers the registry, or who participates in a judicial or administrative proceeding resulting from that report, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any person or agency providing information in good faith, including materials requested by the department pursuant to RSA 161-F:56, shall have the same immunity with respect to participation in any investigation by the commissioner or his authorized representative or in any judicial proceeding resulting from such report.
8		N.H. Rev. Stat. Ann. § 161-F:48. Abrogation of Privileged Communication.	The privileged quality of communication between husband and wife and any professional person and his patient or client, except that between attorney and client, shall not apply to any proceedings instituted pursuant to this subdivision and shall not constitute grounds for failure to report as required by this subdivision.
9		N.H. Rev. Stat. Ann. § 161-F:49. Registry.	I. There shall be established a state registry at the department for the purpose of maintaining a record of information on each founded report of abuse, neglect, or exploitation toward an individual by a paid or volunteer caregiver, guardian, or agent acting under the authority of a power of attorney or any durable power of attorney. The registry shall be confidential and subject to rules on access established by the commissioner of the department under RSA 541-A. Unfounded reports shall not be maintained on the registry. The department shall maintain statistical, non-identifying information on founded reports as the department determines is necessary to track and address trends. For the purposes of this section: (a) "Individual" means an individual, 18 years of age or older, who is a vulnerable adult, as defined under RSA 161-F:43, VII. (b) "Investigator" means a person designated or employed by the department, in accordance with a protocol developed by the department to ensure objectivity, thoroughness, timeliness, and uniformity in methodology and format in the conduct of investigations and investigation reports. An investigator may include an investigator employed by an area agency or a community mental health center, if designated by the department. (c) "Perpetrator" means a person who, following a protective investigation completed in accordance with RSA 161-F:42 through RSA 161-F:57, is found to have abused, neglected, or exploited a vulnerable adult. (d) "Volunteer" means a person who provides voluntary services through any agency, program, or facility. II. Within 5 business days of completion of an investigation of abuse, neglect, or exploitation of an individual by a paid or volunteer caregiver, guardian, or agent acting under the authority of a power of attorney or any durable power of attorney, the investigator shall provide a summary of the investigation to the commissioner, or designee. Except as provided in paragraph IV, for a founded report, the commissioner, or designee, shall, within 5 business days, notify the perpetrator: (a) Of the founded report against him or her and that such information shall be entered on the registry and the consequences of such a finding. (b) Of the right to contest the finding by appealing within 10 business days. (c) Of the right to receive a full and fair administrative hearing, including the right to be represented by counsel at his or her own expense. (d) Of the right to appeal an adverse administrative hearing decision to the probate court in accordance with paragraph V. (e) That he or she may petition the probate court to expunge the report from the registry pursuant to RSA 161-F:49, X. III. In response to a written request from an employer identified in paragraph VII, the commissioner, or designee, shall notify the employer: (a) Relative to a prospective or current employee, consultant, contractor, or volunteer who is not on the registry of that fact within 5 business days of receipt of a request from the employer. (b) Relative to a prospective or current employee, consultant, contractor, or volunteer who is on the registry of that fact within 5 business days of receipt of the request from the employer, and the department shall include in the notice the date the person was placed on the registry. IV. A founded report of abuse, neglect, or exploitation, and other information the commissioner deems appropriate, shall be entered on the registry upon: (a) Expiration of the 10-business-day period for appeal when the perpetrator does not request an appeal. (b) An administrative hearing officer sustaining the finding, unless an appeal is filed in accordance with paragraph V and an order of stay is issued by the probate court. V. If the finding is sustained after an administrative hearing, a perpetrator shall have the right to appeal as follows: (a) A perpetrator may file a petition in the Merrimack county probate court to review the final order by the commissioner, or designee, within 30 days of the date of the final order. Jurisdiction to hear such appeals is vested in the Merrimack county probate court. (b) At the earliest practical time, the court shall review the record as developed before the commissioner, or designee, together with any written legal argument presented to the court. Based on that review, the court may affirm or reverse the decision of the commissioner, or designee, or order that oral argument be held. As justice may require, the court may remand the case to the commissioner, or designee, for further findings or rulings. The petition for appeal shall set forth all the grounds upon which the final order is sought to be overturned. Issues not raised by the appellant before the commissioner, or designee, shall not be raised before the probate court. The burden of proof shall be upon the appellant to show that the decision of the commissioner, or designee, was clearly unreasonable or unlawful, and all findings of the commissioner, or designee, upon all questions of fact properly before him or her shall be deemed to be prima facie lawful and reasonable. The order or decision appealed from shall not be vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence, that the order is unjust or unreasonable. (c) No new or additional evidence shall be introduced in the probate court. The case shall be determined upon the record and evidence transferred, except that in any case, if it shall be necessary in order that no party shall be deprived of any constitutional right, or if the court determines that justice requires the reception of evidence of facts which have occurred since the hearing, or which by reason of accident, mistake, or misfortune could not have been offered before the commissioner, or designee, it shall remand the case to the commissioner, or designee, to receive and consider such additional evidence. VI. If it is determined by the commissioner, or designee, or after a hearing requested pursuant to subparagraph II(c) that a founded report was caused by factors beyond the control of the perpetrator, then the finding shall not be entered onto the registry as founded. VII. All employers of programs which are licensed, certified, or funded by the department to provide services to individuals shall be required before hiring a prospective employee, consultant, contractor, or volunteer who may have contact with individuals to submit his or her name, for review against the registry to determine whether the person is on the registry. The employer shall not hire the prospective employee, consultant, contractor, or volunteer if he or she is listed on the registry unless the employer requests and obtains a waiver from the department to hire such person. The employer, upon receiving notice that a prospective employee, consultant, contractor, or volunteer is on the registry and in order to determine whether to request a waiver from the department, may request permission from the prospective employee, consultant, contractor, or volunteer for the authority to obtain further information about a founded report of abuse, neglect, or exploitation. An employer may, with the consent of a current employee, consultant, contractor, or volunteer, submit his or her name for review against the registry. All employers, upon learning that the name of a current employee, consultant, contractor, or volunteer of their agency is on the registry shall take immediate action to ensure the safety of the individuals in their care. Such action may include, but is not limited to, termination, training, re-assignment, probationary employment, and/or the provision of direct supervision of the employee, consultant, contractor, or volunteer when working with individuals. VIII. Any person hiring or employing a paid or volunteer caregiver, consultant, or contractor directly, or through an authorized representative or fiscal intermediary, to provide personal care services, as defined in RSA 161-E or RSA 161-I, may, with the consent of the current or prospective caregiver, consultant, contractor, or volunteer, submit his or her name for review against the registry and, if he or she is on the registry, and with the further permission of the current or prospective caregiver, consultant, contractor, or volunteer, obtain information about any founded report. Any person considering designating another to serve as his or her agent under a power of attorney or any type of durable power of attorney may, with the consent of the proposed agent, submit the proposed agent's name for review against the registry. The person shall not be required in such situations to obtain a waiver prior to hiring a person on the registry. VIII-a. It shall be unlawful for any employer other than those specified under this section to require as a condition of employment that the employee submit his or her name for review against the registry of founded reports of abuse, neglect, or exploitation and any violation of this provision shall be punishable as a violation. IX. Founded reports of abuse, neglect, or exploitation shall be retained on the registry for a period of 7 years subject to the perpetrator's right to petition for the earlier removal of the report from the registry as provided in this section. X. Any perpetrator whose name is listed in the founded reports maintained on the state registry may petition the probate court to have a founded report expunged from the registry as follows: (a) A petition to expunge shall be filed in the probate court where the petitioner resides or where the abuse, neglect, or exploitation occurred. (b) A petition to expunge shall be filed on forms provided by the probate courts. The petition shall include certified copies of the petitioner's criminal record and may include any other information the petitioner deems relevant. (c) When a petition to expunge is filed, the probate court shall require the department to report to the court concerning any additional founded abuse, neglect, or exploitation reports relative to the petitioner and shall require that the petitioner submit the petitioner's name, birth date, and address to the state police to obtain information about criminal convictions. The court may require the department to provide any additional information that the court believes may aid it in making a determination on the petition. (d) Upon the receipt of the department's report, the court may act on the petition without further hearing or may schedule the matter for hearing at the request of either party. If the court determines that the petitioner does not pose a present threat to the safety of individuals and has exhibited best efforts to eliminate the likelihood of reoccurrence of the type of behavior that resulted in his or her entry onto the registry, the court shall grant the petition and order the department to remove the founded report from the registry. Otherwise, the petition shall be denied. XI. The department shall, in the notice it sends out pursuant to RSA 161-F:49, II(a), notify the perpetrator of his or her right to petition to have his or her founded report expunged from the registry. No petition to expunge a founded report shall be brought within one year from the date that the report was initially entered on the registry. If the petition to expunge is denied, no further petition shall be brought more frequently than every 3 years thereafter. XII. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to: (a) Setting forth the process and criteria for requesting and granting a waiver pursuant to RSA 161-F:49, VII. (b) Safeguarding the confidentiality of and access to the registry except for the functions necessary to comply with this section. Such safeguards shall include limitations on which persons in an employment situation may request and access the founded reports on the registry.
10		N.H. Rev. Stat. Ann. § 161-F:50. Penalty for Violation.	Any person who knowingly fails to make any report required by RSA 161-F:46 shall be guilty of a misdemeanor.
11		N.H. Rev. Stat. Ann. § 161-F:51. Duties and Responsibilities.	I. The commissioner or his or her authorized representative, upon the substantiation of a report of abuse, neglect, or exploitation of a vulnerable adult, shall provide, when necessary, protective services to such adults. II. The commissioner or his or her authorized representative shall refer all cases of serious bodily injury to a vulnerable adult known or suspected to be the result of abuse, neglect, or exploitation to local law enforcement, the department of justice or to the county attorney for possible criminal prosecution. The commissioner or his or her authorized representative shall also report other cases of abuse, neglect, or exploitation to local law enforcement, the department of justice, or the office of the county attorney for possible criminal prosecution if there is reason to believe a crime has been committed.
12		N.H. Rev. Stat. Ann. § 161-F:52. Guardianship.	If all other remedies are exhausted, the commissioner or his authorized representative may seek to have a guardian or conservator appointed by the probate court, pursuant to RSA 464-A, for any adult who is in need of protective services.
13		N.H. Rev. Stat. Ann. § 161-F:53. Entry of Premises.	If either a vulnerable adult reported or suspected of being abused, neglected, or exploited refuses, or a caretaker or caregiver refuses, to allow the representative of the department entrance to the premises for the purpose of investigating a report of abuse, neglect, or exploitation, the probate court, in the county where the adult is found, upon a finding of probable cause, may order an authorized representative of the commissioner, a police officer, or other authorized individual to enter said premises in furtherance of such investigation.
14		N.H. Rev. Stat. Ann. § 161-F:54. Court Ordered Examination.	The probate court, at any time, may order a proposed ward to submit to a medical or psychiatric examination to be completed within 30 days by a licensed psychologist, licensed psychiatrist or physician, or local community mental health center. A written report of such examination shall be forwarded to the court and shall contain, but not be limited to, the proposed ward's disease or disability, if any, the proposed ward's present mental status, and the prognosis. If the proposed ward objects to the evaluation, the probate court having jurisdiction shall be notified in writing within 5 days after notification of the time and place of such evaluation, and the court shall hold a hearing to consider the objection prior to ordering such evaluation or, upon good cause shown, may excuse the proposed ward from the provisions of this section.
15		N.H. Rev. Stat. Ann. § 161-F:55. Rulemaking.	The commissioner shall adopt such rules under RSA 541-A as are necessary to carry out the purpose of this subdivision, including, but not limited to, rules relative to access to records under RSA 161-F:49.
16		N.H. Rev. Stat. Ann. § 161-F:56. Access to Information.	In the course of an investigation conducted pursuant to this subdivision, the department's authorized representative may make any inquiries and obtain such information as is necessary to further such investigation. The department's authorized representative may review and photocopy any books, files, medical records, financial records, photographs or other records on any medium of an alleged victim of abuse, neglect, or exploitation. In the event any person or agency refuses to allow the department access to materials necessary to further its investigation, the probate court, upon a finding of probable cause, may order the person or agency to release its records to the department.
17		N.H. Rev. Stat. Ann. § 161-F:57. Access to Files; Confidentiality.	The files maintained by the department which relate to investigations of alleged instances of abuse, neglect, or exploitation shall be disclosed only with the written consent of the victim, or his guardian or attorney, or if such disclosure is required by court or administrative order. Nothing in this section shall be construed to prohibit the disclosure of information gathered pursuant to an investigation to a service provider as may be necessary to devise or implement a service plan, to a facility and the appropriate licensing authority or authorities for an incident occurring within a facility, as defined in RSA 151, to the extent necessary to protect the victim or other facility residents or to comply with state or federal law, to local law enforcement, the department of justice, or a county attorney, pursuant to RSA 161-F:51, II, or to any court in any proceeding where the welfare of the alleged victim or actions of a fiduciary acting on behalf of an alleged victim are at issue.
18		N.H. Rev. Stat. Ann. § 631:8. Criminal Neglect of Elderly, Disabled, or Impaired Adults.	I. In this section: (a) "Adult" means any person who is 18 years of age or older. (b) "Caregiver" means any person who has been entrusted with, or has assumed the responsibility voluntarily, by contract, or by order of the court, for frequent and regular care of or services to an elderly, disabled, or impaired adult, including subsistence, medical, custodial, personal or other care, on a temporary or permanent basis. A caregiver shall not include an uncompensated volunteer, unless such person has agreed to provide care and is aware that the person receiving the care is dependent upon the care provided. (c) "Disabled adult" means an adult who has a diagnosed physical or mental impairment. (d) "Elderly adult" means an individual who is 60 years of age or older. (e) "Impaired adult" means any adult who suffers from an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, memory loss, or other cause, that causes an adult to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the adult's person or property or exhibits the functional limitations as defined in RSA 464-A:2, VII. Impaired adult includes a person determined to be vulnerable under RSA 161-F or incapacitated under RSA 464-A. (f) "Neglect" means the failure or omission on the part of the caregiver to provide the care, supervision, and services which he or she has voluntarily, or by contract, or by order of the court agreed to provide and which are necessary to maintain the health of an elderly, disabled, or impaired adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider necessary for the well-being of an elderly, disabled, or impaired adult. "Neglect" may be repeated conduct or a single incident. (g) "Person" means any natural person, corporation, trust, partnership, unincorporated association, or any other legal entity. (h) "Serious bodily injury" means serious bodily injury as defined in RSA 625:11, VI. (i) "Undue influence" means the intentional use, by a person in a position of trust and confidence with an elderly, disabled, or impaired adult, of that position to obtain an unfair advantage over the elderly, disabled, or impaired adult, through actions or tactics, including, but not limited to, emotional, psychological, and legal manipulation. II. Any caregiver who purposely causes serious bodily injury to an elderly, disabled, or impaired adult by neglect shall be guilty of a class A felony. III. Any caregiver who knowingly or recklessly causes serious bodily injury to an elderly, disabled, or impaired adult by neglect shall be guilty of a class B felony. IV. Nothing in this section shall be construed to alter or impair a person's right to self-determination or right to refuse medical treatment as described in RSA 151:21 and RSA 151:21-b. V. Nothing in this section shall be construed to mean a person is abused, neglected, exploited, or in need of protective services for the sole reason that such person relies on or is being furnished treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a church or religious denomination of which such person is a member or an adherent. VI. Nothing in this section shall be construed to impose criminal liability on a person who has made a good faith effort to provide for the care of an elderly, disabled, or impaired adult, but through no fault of his or her own, has been unable to provide such care, or on a person who is carrying out the lawful request of an elderly or disabled adult who is competent to make his or her own decisions.


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