§ 6906. Assessment and investigation

(a) Report of maltreatment.

(1) Upon receipt of a report of maltreatment, the Department shall determine whether the report constitutes an allegation of abuse, neglect, or exploitation as defined in section 6902 of this title. The Department shall respond to reports of alleged abuse, neglect, or exploitation that occurred in Vermont and to out-of-state conduct when the vulnerable adult is a resident of Vermont.

(2) The Department shall determine whether to conduct an assessment or an investigation, as provided for in this section, or whether to screen out the report. An assessment may be used to determine whether an investigation is necessary. The Department shall begin either an assessment or an investigation within one business day in all cases in which the alleged victim has experienced a life-threatening or severe injury; requires hospitalization as a result of maltreatment; was the alleged victim of sexual abuse; or is experiencing ongoing harm. The Department shall initiate an assessment or an investigation within two business days after the day of the receipt of all other accepted reports made pursuant to section 6904 of this title. The Department shall collect the following demographic information about the alleged victim and alleged perpetrator, if available, if an assessment or investigation is opened: gender, race, age, ethnicity, sexual orientation, gender identity, and disability status.

(3) The decision to conduct an assessment shall include consideration of the following factors:

(A) the severity of any alleged maltreatment and any injuries;

(B) the relationship between the alleged victim and alleged perpetrator;

(C) the known history of the report; and

(D) the detail and specificity of information provided in the report regarding the alleged victim’s vulnerability and the alleged maltreatment.

(4) The Department shall investigate when an accepted report involves allegations indicating serious maltreatment or ongoing risk of harm to the alleged victim. The Department may investigate any report of maltreatment Adult Protective Services receives.

(5) The Department shall begin an immediate investigation if, at any time during an assessment, it appears that an investigation is appropriate.

(6) To the extent permitted by law, the Department may collaborate with law enforcement, health care and service providers, and other departments and agencies in Vermont and other jurisdictions to evaluate the risk to the vulnerable adult and may enter into reciprocal agreements with law enforcement, other departments and agencies, and other jurisdictions to further the purposes of this section. In no event shall the Department disclose information to other divisions, departments, or agencies unless such a disclosure is necessary to further the express purpose of this section.

(b) Assessment.

(1) An assessment, to the extent that is reasonable under the facts and circumstances provided in a report, shall include the following:

(A) an interview with the reporter and the alleged victim, which shall focus on ensuring the immediate safety of the alleged victim and mitigating the future risk of harm to the alleged victim in the current environment;

(B) a determination as to whether the alleged victim meets the definition of a vulnerable adult and whether the allegations, if true, meet the statutory definition of abuse, neglect, or exploitation, or any combination thereof; and

(C) in collaboration with the alleged victim, the identification of resources and protective service needs that reduce the risk of future abuse, neglect, or exploitation and improve or restore the care and safety of the alleged victim.

(2) Services offered during or at the conclusion of an assessment can only be implemented through voluntary agreement or court action.

(3) If the assessment is closed without resulting in an investigation, there shall be no finding of abuse, neglect, or exploitation. However, the Department shall document the outcome of the assessment.

(4) The Department shall provide written notice to the victim, and the victim’s representative who is not the subject of the assessment, of the outcome of the assessment.

(c) Investigation.

(1) The Department shall:

(A) Notify the reporter in writing if Adult Protective Services decides not to investigate or to conduct an assessment of the report. The notification shall be provided within five business days after the decision is made and shall inform the reporter that the reporter may ask the Commissioner to review the decision.

(B) Notify the alleged victim, and the alleged victim’s representative, if any, in writing of the outcome of the investigation. The notification shall be provided within five business days after the decision has been made and shall inform the alleged victim or the alleged victim’s representative that the alleged victim or the alleged victim’s representative may ask the Commissioner to review the decision.

(2) The investigation shall include, except where inclusion would jeopardize the health, welfare, or safety of the vulnerable adult:

(A) An interview with the alleged victim, which may take place without the approval of the alleged victim’s parents, guardian, or caregiver, but cannot take place over the objection of the alleged victim.

(B) An opportunity for the person who allegedly abused, neglected, or exploited the alleged victim to be interviewed. If the person declines to be interviewed, either through given notice or failure to respond, the alleged perpetrator shall be notified that the alleged perpetrator’s declination may be noted in the investigation and may be taken into account in any potential appeal process.

(3) Upon completion of the investigation, the investigative summary describing pertinent evidence obtained during the course of the investigation and recommending a substantiation or unsubstantiation shall be submitted to the Commissioner or designee. Prior to substantiation, the Department shall interview the alleged perpetrator unless the alleged perpetrator declines. The investigative summary shall include a recommendation of whether placement on the Registry is appropriate. If the recommendation is for substantiation, the alleged perpetrator shall be given written notice by certified mail of the recommendation and a summary of the evidence that forms the basis of the recommendation and shall be notified of any remedial options that may exist and how a substantiated report might be used. The alleged perpetrator may seek an administrative review of the Department’s intention to place the alleged perpetrator’s name on the Registry by notifying the Department within 14 calendar days after the date listed on the Department’s notice of the right to an administrative review. The Commissioner may grant an extension past the 14-day period for good cause, not to exceed 28 calendar days after the date listed on the Department’s notice.

(4) The administrative review of the Department’s intention to substantiate may be stayed if there is a related case pending in the Criminal or Family Division of the Superior Court that arose out of the same incident of abuse, neglect, or exploitation that resulted in the recommendation for substantiation. During the period the administrative review is stayed, if the Department’s intent is to place the alleged perpetrator’s name on the Registry, it shall add the alleged perpetrator’s name to the Registry with a notation that the case is pending. Upon resolution of the Superior Court criminal or family case, the alleged perpetrator may exercise the alleged perpetrator’s right to review under this section by notifying the Department in writing within 28 calendar days after the related court case, including any appeals, has been fully adjudicated. If the alleged perpetrator fails to notify the Department within 28 calendar days, the Department’s decision shall become final, and no further review under this subsection is required.

(A) The Department shall hold an administrative review within 28 calendar days after receipt of the request for review. At least 14 calendar days prior to the administrative review, the Department shall provide to the alleged perpetrator requesting an administrative review the following: the redacted investigation file, which means only the portion of the investigation file relevant to an Adult Protective Services recommendation, redacted as necessary to minimize disclosure of any confidential information; notice of time and place of the administrative review; and administrative review procedures, including information that may be submitted and mechanisms for providing information.

(B) At the administrative review, the alleged perpetrator who requested the review shall be provided with the opportunity to present documentary evidence or other information that supports the alleged perpetrator’s position and provides information to the reviewer in making the most accurate decision regarding the allegation. In determining the weight to be given any such evidence or information, the administrative reviewer shall consider whether the alleged perpetrator had an opportunity to present the evidence or information to the investigator during the investigation and, if so, the reasons for the failure to present the evidence or information at that time. The Department shall have the burden of proving that, based upon a preponderance of evidence, it concluded that a reasonable person would believe that the vulnerable adult has been abused, neglected, or exploited by that alleged perpetrator. The administrative review may be held remotely by telephone or through electronic means by mutual agreement of the parties.

(C) The Department shall establish an administrative case review unit within the Department and may contract for the services of administrative reviewers. An administrative reviewer shall be a neutral and independent arbiter who has no prior involvement in the original investigation of the allegation.

(5) Within seven calendar days after the completed review, the administrative reviewer shall:

(A) reject the Department’s recommendation of substantiation;

(B) accept the Department’s recommendation of substantiation; or

(C) defer any recommendation and direct the Department to further investigate upon the recommendation of the administrative reviewer.

(6) If the administrative reviewer accepts the Department’s recommendation of substantiation, a Registry record shall be made within two business days. If the administrative reviewer rejects the Department’s recommendation of substantiation, no Registry record shall be made.

(7) Within seven calendar days of the decision to reject or accept the recommendation of substantiation or to defer the substantiation in accordance with subdivision (5) of this subsection, the administrative reviewer shall provide notice to the alleged perpetrator of the administrative reviewer’s decision. If the administrative reviewer accepts the Department’s recommendation of substantiation, the notice shall advise the alleged perpetrator of the right to appeal the administrative reviewer’s decision to the Human Services Board.

(8)(A) If no administrative review is requested, the Department’s recommendation in the case shall be final, and the alleged perpetrator shall have no further right of review under this section.

(B) The Commissioner may grant an exception and permit such an administrative review upon good cause shown. Good cause may include an acquittal or dismissal of a criminal charge arising from the incident of abuse, neglect, or exploitation.

(9) In exceptional circumstances, the Commissioner, in the Commissioner’s sole and nondelegable discretion, may reconsider any decision made by an administrative reviewer. A Commissioner’s decision that imposes a penalty or creates a Registry record may be appealed to the Human Services Board.

(10) Within 30 calendar days after the date of the notice advising that a report has been substantiated, an alleged perpetrator against whom a complaint has been lodged may apply to the Human Services Board for relief on the grounds that it is unsubstantiated. The Human Services Board shall hold a fair hearing under 3 V.S.A. § 3091. Unless the Commissioner agrees otherwise, the hearing shall be given priority by the Human Services Board, and an expedited hearing shall be provided, not later than 30 calendar days after the date of the notice advising that a report has been substantiated, and a decision shall be issued within seven calendar days after the hearing.

(11) If a report is found to be unsubstantiated, the records shall be retained as part of the confidential records of the Department. If no court proceeding is brought pursuant to section 6903 of this title within six years following the date of the notice to the alleged perpetrator against whom the complaint was lodged, the records relating to the unsubstantiated report may be destroyed.

(12) If the Human Services Board reverses a substantiated finding, the Commissioner shall remove all information from the Registry.

(13)(A) When a final determination has been made, the Commissioner shall inform the vulnerable adult or the vulnerable adult’s representative in writing.

(B) When a final determination of substantiation has been made, the Department shall also inform the perpetrator’s current employer, if known, in writing of the outcome of the investigation and any subsequent proceedings. (Added 1979, No. 150 (Adj. Sess.); amended 1983, No. 203 (Adj. Sess.), § 2; 1985, No. 78, § 6; 1993, No. 100, § 4; 2001, No. 135 (Adj. Sess.), §§ 5, 17, eff. June 13, 2002; 2005, No. 79, § 6; 2005, No. 174 (Adj. Sess.), § 131; 2023, No. 81, § 1, eff. July 1, 2023.)