Note:

Changes in the laws, rules and regulations since the 2001 edition of the LSBEP Directory and Statutory Reference book appear in boldface type in this 2002 edition.

Adult Abuse, LA S.S. 14:403.2 (1992)

§ 403.2. Abuse and neglect of adults; reports; investigation; waiver of privileges; penalties; immunity

         A.    (1) The purpose of this Section is to protect adults who cannot physically or mentally protect themselves and who are harmed or threatened with harm through action or inaction by themselves or by the individuals responsible for their care or by other parties, by requiring mandatory reporting of suspected cases of abuse or neglect by any person having reasonable cause to believe that such a case exists. It is intended that, as a result of such reports, protective services shall be provided by the adult protection agency. Such services shall be available as needed without regard to income.

                (2) It is the further intent of the legislature to authorize only the least possible restriction on the exercise of personal and civil rights consistent with the person’s need for services and to require that due process be followed in imposing such restrictions.  

         B.  For the purposes of this Section, the following definitions shall apply:

                (1) “Abuse” is the infliction of physical or mental injury on an adult by other parties, including but not limited to such means as sexual abuse, exploitation, or extortion of funds or other things of value, to such an extent that his health, self-determination, or emotional well-being is endangered.

                (2) “Adult” is any individual eighteen years of age or older or an emancipated minor who, because of mental or physical dysfunction, is unable to manage his own resources, carry out the activities of daily living, or protect himself from neglect, or hazardous or abusive situations without assistance from others, and who has no available, willing, and responsibly able person to assist him.

                3) “Adult protection agency” is the office of elderly affairs in the office of the governor, for any individual sixty years of age or older in need of adult protective services as provided in this Section. Adult protection agency is the Department of Health and Hospitals for any individual between the ages of eighteen and fifty-nine years of age in need of adult protective services as provided in this Section. The secretary of the Department of Health and Hospitals may assign the duties and powers provided in this Section to any office of the department for provision of adult protective services, as provided in Subsection E(1).

                (4) “Exploitation” is the illegal or improper use or management of an aged person’s or disabled adult’s funds, assets, or property, or the use of an aged person’s or disabled adult’s power of attorney or guardianship for one’s own profit or advantage.

                (5) “Extortion” is the acquisition of a thing of value from an unwilling or reluctant adult by physical force, intimidation, or abuse of legal or official authority.

                (6) “Neglect” is the failure, by a caregiver responsible for an adult’s care or by other parties, to provide the proper or necessary support or medical, surgical, or any other care necessary for his well-being. No adult who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be neglected or abused.

                (7) “Caregiver” is any person or persons, either temporarily or permanently, responsible for the care of an aged person or a physically or mentally disabled adult. Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare personnel, adult foster home sponsors, personnel of public and private institutions and facilities, adult congregate living facilities, and nursing homes which have voluntarily assumed the care of an aged person, have assumed voluntary residence with an aged person or disabled adult, or have assumed voluntary use or tutelage of an aged or disabled person’s assets, funds, or property, and specifically shall include city, parish, or state law enforcement agencies.

                (8) “Protective services” include but are not limited to:

                        (a) Conducting investigations and assessments of complaints of possible abuse, neglect, or exploitation to determine if the situation and condition of the adult warrants further action;

                        (b) Preparing a social services plan utilizing community resources aimed at remedying abuse, neglect and exploitation;

                        (c) Case management to assure stabilization of the situation; and

                        (d) Referral for legal assistance to initiate any necessary extrajudicial remedial action.

                (9) “Self-neglect” is the failure, either by the adult’s action or inaction, to provide the proper or necessary support or medical, surgical, or any other care necessary for his own well-being. No adult who is being provided treatment in accordance with a recognized religious method of healing in lieu of medical treatment shall for that reason alone be considered to be self-neglected.

         C. Any person having cause to believe that an adult’s physical or mental health or welfare has been or may be further adversely affected by abuse, neglect or exploitation shall report in accordance with Subsection D of this Section.

         D.    (1) Reports reflecting the reporter’s belief that an adult has been abused or neglected shall be made to any adult protection agency or to any local or state law enforcement agency. These reports need not name the persons suspected of the alleged abuse or neglect.

                (2) All reports shall contain the name and address of the adult, the name and address of the person responsible for the care of the adult, if available, and any other pertinent information.

         E.    (1) The adult protection agency shall make prompt investigation and assessment. When the report concerns care in a facility or program under the supervision of the Department of Health and Hospitals, the secretary of the department may assign the duties and powers enumerated in Paragraph (2) of this Subsection to any office or entity within the department to carry out the purposes of this Section.

                (2) The investigation and assessment shall include the nature, extent, and cause of the abuse and neglect, the identity of the person or persons responsible for the abuse and neglect, if known, and an interview with the adult and a visit to the adult’s home, if possible. Consultation with others having knowledge of the facts of the particular case shall also be included in the investigation.

                (3) In the event that admission to the adult’s home is refused, the adult protection agency may apply to a court of competent civil jurisdiction for an order to enter the home to make such an investigation.

                (4) To secure further information and coordinate community service efforts, the adult protection agency shall contact other appropriate local or state agencies.

                (5) The adult protection agencies shall convene a regional level coordinating council composed of representatives of both public and private agencies providing services, with the objectives of identifying resources, increasing needed supportive services, avoiding duplication of effort, and assuring maximum community coordination of effort.

                (6) If it appears after investigation that an adult has been abused and neglected by other parties and that the problem cannot be remedied by extrajudicial means, the adult protection agency shall refer the matter to the appropriate district attorney’s office. Evidence that abuse or neglect has occurred must be presented together with an account of the protective services given or available to the adult and a recommendation as to what services, if ordered, would eliminate the abuse or neglect.

                (7) Protective services may not be provided in cases of self-neglect to any adult who does not consent to such service or who, having consented, withdraws such consent. Nothing herein shall prohibit the adult protection agency, the district attorney, the coroner, or the judge from petitioning interdiction pursuant to Civil Code Articles 389 through 426.

                (8) Information contained in the case records of the adult protection agency shall be confidential and shall not be released without a written authorization from the adult or his legal representative, except that the information may be released to law enforcement agencies and social service agencies who are providing services to the adult or pursuing enforcement of criminal statutes related to the abuse of the adult.

         F.     (1) The district attorney shall notify the adult of the hearing and any action proposed with respect to the alleged abuse or neglect. He shall advise the adult of his right to be represented by an attorney. The district attorney may apply to a court of competent civil jurisdiction for an order to:

                        (a) Provide mandatory counseling for the parties involved to prevent further abuse or neglect of the adult;

                        (b) Enjoin the parties contributing to the abuse or neglect of the adult from continuing such acts; or

                        (c) Have the adult receive a medical examination or psychiatric/psychological evaluation which will help to determine the least restrictive setting the adult may need.

                (2) The district attorney may likewise institute any criminal proceedings he deems appropriate in accordance with existing laws.

         G. Upon application by the district attorney under the provisions of Subsection F, the court shall fix a date for a hearing to be held not more than twenty days, excluding Saturdays, Sundays, and legal holidays from receipt of the petition. If the alleged abused or neglected adult has no attorney, the court shall appoint an attorney to represent him. The adult’s attorney shall be granted access to all records of the adult.

         H. The court shall cause the alleged abused or neglected adult and his attorney to be served with notice of the appointment and of the time, date, and place of the hearing no later than five days prior to the hearing. The notice shall inform such respondent that he has a right to be present at the hearing, that he has a right to choose his own privately retained and paid counsel or have a court appointed attorney if he cannot afford one, that he has a right to subpoena witnesses to testify on his behalf, and that he has a right to cross-examine any witness testifying against him. The alleged abused or neglected adult shall have the right to attend the hearing; however, this may be waived by his attorney for cause with approval of the court.

         I.     (1) The adult protection agency may adopt such rules and regulations as may be necessary in carrying out the provisions of this Section. Specifically, such rules shall provide for cooperation with local agencies, including but not limited to hospitals, clinics, and nursing homes, and cooperation with other states. The adult protection agencies may enter into cooperative agreements with other state agencies or contractual agreements with private agencies to carry out the purposes of this Section. The immunity granted to staff of the adult protection agencies defined in Paragraph (3) of this Subsection shall extend to the staff of those agencies carrying out the provisions of this Section through cooperative or contractual agreement.

                 (2)   (a) The adult protection agencies shall implement adult protective services for aged and disabled adults in accordance with an agency plan and shall submit an annual funding request in accordance with its plan. No funds shall be expended to implement the plan until the budget is approved by the commissioner of administration and by the legislature in the annual state appropriations act, with the exception of Subparagraph (c) of Paragraph 1(2) providing for initial implementation during the course of a state fiscal year by transition of funds and positions across programs.

                        (b) Subject to the availability of funds and positions appropriated, the office of elderly affairs shall implement an adult protective services program for persons sixty years of age or older during state Fiscal Year 1992-1993.

                        (c) Subject to state funds and positions becoming available with the transfer of specialized investigations of allegations of abuse and/or neglect involving class members under the jurisdiction of the federal court in the Gary W., et al. vs. Louisiana, et at. class action back under the state’s authority from court authority, those state funds and positions currently authorized and funded for court ordered administration and compliance in the Gary W. case which are budgeted in the Department of Health and Hospitals shall be used to implement a protective services program for disabled adults age eighteen to fifty-nine as provided in this Section. The Department of Health and Hospitals may submit this plan for approval to the federal court and the commissioner of administration. Upon approval by the court, the commissioner of administration and the secretary of the department shall be authorized to transfer the positions and funds appropriated in the secretary’s budget for court-ordered Gary W. administration and compliance to implement protective services for disabled adults.

                (3) When the adult protection agency’s staff is not sufficient to respond promptly to all reported cases, the said protection agency shall set priorities for case response and allocate staff resources to cases in accordance with the rules and regulations promulgated in accordance with Paragraph (1) of this Subsection. Until the funding becomes available for a protective services program for disabled adults within the Department of Health and Hospitals and in view of the Office of Elderly Affairs’ earlier implementation date for adult protective service, this office shall have the authority to intervene, as provided in this Section, on an emergency basis in reported cases of imminent life-threatening circumstances involving disabled adults age eighteen to fifty-nine. Absent evidence of willful or intentional misconduct or gross negligence in carrying out the investigative functions of the adult protective services program, caseworkers, supervisors, program managers, and agency heads shall be immune from civil or criminal liability in any legal action arising from any decision by the adult protection agency relative to the setting of priorities for cases and targeting of staff resources.

         J.     (1) Any person who knowingly and willfully fails to report as provided by Subsection C, shall be fined not more than five hundred dollars or imprisoned not more than six months, or both.

                (2) Any person who knowingly files a false report of abuse or neglect shall be fined not more than one thousand dollars, imprisoned with or without hard labor for not more than one year, or both.

         K. No cause of action shall exist against any person who in good faith makes a report, cooperates in an investigation by an agency, or participates in judicial proceedings authorized under the provisions of this Section, or any caseworker who in good faith conducts an investigation or makes an investigative judgment or disposition, and such person shall have immunity from civil or criminal liability that otherwise might be incurred or imposed. This immunity shall not be extended to:

                (1) Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the adult.

                (2) Any person who makes a report known to be false or with reckless disregard for the truth of the report.

                (3) Any person charged with direct or constructive contempt of court, any act of perjury as defined in Subpart C of Part VII of Chapter 1 of this Title, or any offense affecting judicial functions and public records as defined in Subpart D of Part VII of Chapter 1 of this Title.