235E.1 DEFINITIONS.
As used in this chapter, unless the context otherwise requires:
1. "Caretaker" means a person who is a staff member of a
facility or program who provides care, protection, or services to a
dependent adult voluntarily, by contract, through employment, or by
order of the court.
2. "Court" means the district court.
3. "Department" means the department of inspections and
appeals.
4. "Dependent adult" means a person eighteen years of age or
older whose ability to perform the normal activities of daily living
or to provide for the person's own care or protection is impaired,
either temporarily or permanently.
5. a. "Dependent adult abuse" means:
(1) Any of the following as a result of the willful misconduct or
gross negligence or reckless acts or omissions of a caretaker, taking
into account the totality of the circumstances:
(a) A physical injury to, or injury which is at a variance with
the history given of the injury, or unreasonable confinement,
unreasonable punishment, or assault of a dependent adult which
involves a breach of skill, care, and learning ordinarily exercised
by a caretaker in similar circumstances. "Assault of a dependent
adult" means the commission of any act which is generally intended
to cause pain or injury to a dependent adult, or which is generally
intended to result in physical contact which would be considered by a
reasonable person to be insulting or offensive or any act which is
intended to place another in fear of immediate physical contact which
will be painful, injurious, insulting, or offensive, coupled with the
apparent ability to execute the act.
(b) The commission of a sexual offense under chapter 709 or
section 726.2 with or against a dependent adult.
(c) Exploitation of a dependent adult. "Exploitation" means
a caretaker who knowingly obtains, uses, endeavors to obtain to use,
or who misappropriates, a dependent adult's funds, assets,
medications, or property with the intent to temporarily or
permanently deprive a dependent adult of the use, benefit, or
possession of the funds, assets, medication, or property for the
benefit of someone other than the dependent adult.
(d) Neglect of a dependent adult. "Neglect of a dependent
adult" means the deprivation of the minimum food, shelter,
clothing, supervision, physical or mental health care, or other care
necessary to maintain a dependent adult's life or physical or mental
health.
(2) Sexual exploitation of a dependent adult by a caretaker
whether within a facility or program or at a location outside of a
facility or program. "Sexual exploitation" means any consensual
or nonconsensual sexual conduct with a dependent adult which includes
but is not limited to kissing; touching of the clothed or unclothed
breast, groin, buttock, anus, pubes, or genitals; or a sex act, as
defined in section 702.17. "Sexual exploitation" includes the
transmission, display, taking of electronic images of the unclothed
breast, groin, buttock, anus, pubes, or genitals of a dependent adult
by a caretaker for a purpose not related to treatment or diagnosis or
as part of an ongoing investigation. Sexual exploitation does not
include touching which is part of a necessary examination, treatment,
or care by a caretaker acting within the scope of the practice or
employment of the caretaker; the exchange of a brief touch or hug
between the dependent adult and a caretaker for the purpose of
reassurance, comfort, or casual friendship; or touching between
spouses or domestic partners in an intimate relationship.
b. "Dependent adult abuse" does not include any of the
following:
(1) Circumstances in which the dependent adult declines medical
treatment if the dependent adult holds a belief or is an adherent of
a religion whose tenets and practices call for reliance on spiritual
means in place of reliance on medical treatment.
(2) Circumstances in which the dependent adult's caretaker,
acting in accordance with the dependent adult's stated or implied
consent, declines medical treatment or care.
(3) The withholding or withdrawing of health care from a
dependent adult who is terminally ill in the opinion of a licensed
physician, when the withholding or withdrawing of health care is done
at the request of the dependent adult or at the request of the
dependent adult's next of kin, attorney in fact, or guardian pursuant
to the applicable procedures under chapter 125, 144A, 144B, 222, 229,
or 633.
6. "Facility" means a health care facility as defined in
section 135C.1 or a hospital as defined in section 135B.1.
7. "Intimate relationship" means a significant romantic
involvement between two persons that need not include sexual
involvement, but does not include a casual social relationship or
association in a business or professional capacity. In determining
whether persons are in an intimate relationship, the court may
consider the following nonexclusive list of factors:
a. The duration of the relationship.
b. The frequency of interaction.
c. Whether the relationship has been terminated.
d. The nature of the relationship, characterized by either
person's expectation of sexual or romantic involvement.
8. "Person" means person as defined in section 4.1.
9. "Program" means an elder group home as defined in section
231B.1, an assisted living program certified under section 231C.3, or
an adult day services program as defined in section 231D.1.
10. "Recklessly" means that a person acts or fails to act
with respect to a material element of a public offense, when the
person is aware of and consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from the act or omission. The risk must be of such a nature and
degree that disregard of the risk constitutes a gross deviation from
the standard conduct that a reasonable person would observe in the
situation.
11. "Support services" includes but is not limited to
community-based services including area agency on aging assistance,
mental health services, fiscal management, home health services,
housing-related services, counseling services, transportation
services, adult day services, respite services, legal services, and
advocacy services. Section History: Recent Form
2008 Acts, ch 1093, §11
Referred to in § 231C.10, 235B.5, 235B.6, 235E.2
235E.2 DEPENDENT ADULT ABUSE REPORTS IN FACILITIES
AND PROGRAMS.
1. a. The department shall receive and evaluate reports of
dependent adult abuse in facilities and programs. The department
shall inform the department of human services of such evaluations and
dispositions for inclusion in the central registry for dependent
adult abuse information pursuant to section 235B.5.
b. Reports of dependent adult abuse which is the result of
the acts or omissions of the dependent adult shall be collected and
maintained in the files of the dependent adult as assessments only
and shall not be included in the central registry.
c. A report of dependent adult abuse that meets the
definition of dependent adult abuse under section 235E.1, subsection
5, paragraph "a", subparagraph (1), subparagraph division (a) or
(d), which the department determines is minor, isolated, and unlikely
to reoccur shall be collected and maintained by the department of
human services as an assessment only for a five-year period and shall
not be included in the central registry and shall not be considered
to be founded dependent adult abuse. A subsequent report of
dependent adult abuse that meets the definition of dependent adult
abuse under section 235E.1, subsection 5, paragraph "a",
subparagraph (1), subparagraph division (a) or (d), that occurs
within the five-year period, and that is committed by the caretaker
responsible for the act or omission which was the subject of the
previous report of dependent adult abuse which the department
determined was minor, isolated, and unlikely to reoccur, may be
considered minor, isolated, and unlikely to reoccur depending on the
circumstances of the report.
2. A staff member or employee of a facility or program who, in
the course of employment, examines, attends, counsels, or treats a
dependent adult in a facility or program and reasonably believes the
dependent adult has suffered dependent adult abuse, shall report the
suspected dependent adult abuse to the department.
3. a. If a staff member or employee is required to make a
report pursuant to this section, the staff member or employee shall
immediately notify the person in charge or the person's designated
agent who shall then notify the department within twenty-four hours
of such notification. If the person in charge is the alleged
dependent adult abuser, the staff member shall directly report the
abuse to the department within twenty-four hours.
b. The employer or supervisor of a person who is required to
or may make a report pursuant to this section shall not apply a
policy, work rule, or other requirement that interferes with the
person making a report of dependent adult abuse or that results in
the failure of another person to make the report.
4. An employee of a financial institution may report suspected
financial exploitation of a dependent adult to the department.
5. Any other person who believes that a dependent adult has
suffered dependent adult abuse may report the suspected dependent
adult abuse to the department of inspections and appeals. The
department of inspections and appeals shall transfer any reports
received of dependent adult abuse in the community to the department
of human services. The department of human services shall transfer
any reports received of dependent adult abuse in facilities or
programs to the department of inspections and appeals.
6. The department shall inform the appropriate county attorneys
of any reports of dependent adult abuse. The department may request
information from any person believed to have knowledge of a case of
dependent adult abuse. The person, including but not limited to a
county attorney, a law enforcement agency, a multidisciplinary team,
a social services agency in the state, or any person who is required
pursuant to subsection 2 to report dependent adult abuse, whether or
not the person made the specific dependent adult abuse report, shall
cooperate and assist in the evaluation upon the request of the
department. If the department's assessment reveals that dependent
adult abuse exists which might constitute a criminal offense, a
report shall be made to the appropriate law enforcement agency.
County attorneys and appropriate law enforcement agencies shall also
take any other lawful action necessary or advisable for the
protection of the dependent adult.
a. If, upon completion of an investigation, the department
determines that the best interests of the dependent adult require
court action, the department shall notify the department of human
services of the potential need for a guardian or conservator or for
admission or commitment to an appropriate institution or facility
pursuant to the applicable procedures under chapter 125, 222, 229, or
633, or shall pursue other remedies provided by law. The appropriate
county attorney shall assist the department of human services in the
preparation of the necessary papers to initiate the action and shall
appear and represent the department of human services at all district
court proceedings.
b. Investigators within the department shall be specially
trained to investigate cases of dependent adult abuse including but
not limited to cases involving gerontological, dementia, and wound
care issues.
c. The department shall assist the court during all stages of
court proceedings involving a suspected case of dependent adult
abuse.
d. In every case involving dependent adult abuse which is
substantiated by the department and which results in a judicial
proceeding on behalf of the dependent adult, legal counsel shall be
appointed by the court to represent the dependent adult in the
proceedings. The court may also appoint a guardian ad litem to
represent the dependent adult if necessary to protect the dependent
adult's best interests. The same attorney may be appointed to serve
both as legal counsel and as guardian ad litem. Before legal counsel
or a guardian ad litem is appointed pursuant to this paragraph, the
court shall require the dependent adult and any person legally
responsible for the support of the dependent adult to complete under
oath a detailed financial statement. If, on the basis of that
financial statement, the court deems that the dependent adult or the
legally responsible person is able to bear all or a portion of the
cost of the legal counsel or guardian ad litem, the court shall so
order. In cases where the dependent adult or the legally responsible
person is unable to bear the cost of the legal counsel or guardian ad
litem, the expense shall be paid by the county.
7. A person participating in good faith in reporting or
cooperating with or assisting the department in evaluating a case of
dependent adult abuse has immunity from liability, civil or criminal,
which might otherwise be incurred or imposed based upon the act of
making the report or giving the assistance. The person has the same
immunity with respect to participating in good faith in a judicial
proceeding resulting from the report, cooperation, or assistance or
relating to the subject matter of the report, cooperation, or
assistance.
8. It shall be unlawful for any person or employer to discharge,
suspend, or otherwise discipline a person required to report or
voluntarily reporting an instance of suspected dependent adult abuse
pursuant to subsection 2 or 5, or cooperating with, or assisting the
department in evaluating a case of dependent adult abuse, or
participating in judicial proceedings relating to the reporting or
cooperation or assistance based solely upon the person's reporting or
assistance relative to the instance of dependent adult abuse. A
person or employer found in violation of this subsection is guilty of
a simple misdemeanor.
9. A person required by this section to report a suspected case
of dependent adult abuse pursuant to subsection 2 who knowingly and
willfully fails to do so within twenty-four hours commits a simple
misdemeanor. A person required by subsection 2 to report a suspected
case of dependent adult abuse who knowingly fails to do so or who
knowingly interferes with the making of such a report or applies a
requirement that results in such a failure is civilly liable for the
damages proximately caused by the failure.
10. The department shall adopt rules which require facilities and
programs to separate an alleged dependent adult abuser from a victim
following an allegation of perpetration of dependent adult abuse and
prior to the completion of an investigation of the allegation.
11. Upon receiving notice from a credible source, the department
shall notify a facility or program that subsequently employs a
dependent adult abuser when the notice of investigative findings has
been issued. Such notification shall occur prior to the completion
of an investigation that is founded for dependent adult abuse.
12. An inspector of the department may enter any facility or
program without a warrant and may examine all records pertaining to
residents, employees, former employees, and the alleged dependent
adult abuser. An inspector of the department may contact or
interview any resident, employee, former employee, or any other
person who might have knowledge about the alleged dependent adult
abuse. An inspector may take or cause to be taken photographs of the
dependent adult abuse victim and the vicinity involved. The
department shall obtain consent from the dependent adult abuse victim
or guardian or other person with a power of attorney over the
dependent adult abuse victim prior to taking photographs of the
dependent adult abuse victim.
13. a. Notwithstanding section 235B.6 and chapter 22, an
employee organization or union representative may observe an
investigative interview conducted by the department of an alleged
dependent adult abuser if all of the following conditions are met:
(1) The alleged dependent adult abuser is part of a bargaining
unit that is party to a collective bargaining agreement under chapter
20 or any other applicable state or federal law.
(2) The alleged dependent adult abuser requests the presence of
an employee organization or union representative.
(3) The employee organization or union representative maintains
the confidentiality of all information from the interview subject to
the penalties provided in section 235B.12 if such confidentiality is
breached.
b. This subsection shall only apply to interviews conducted
pursuant to this chapter. This subsection does not apply to
interviews conducted pursuant to the regulatory activities of chapter
135B, 135C, 231B, 231C, or 231D, or any other state or federal law.
Section History: Recent Form
2008 Acts, ch 1093, §12; 2009 Acts, ch 41, §263; 2009 Acts, ch
133, §89
Referred to in § 235B.3, 235B.16
235E.3 PREVENTION OF ADDITIONAL DEPENDENT ADULT ABUSE
-- NOTIFICATION OF RIGHTS.
If a peace officer has reason to believe that dependent adult
abuse, which is criminal in nature, has occurred in a facility or
program, the officer shall use all reasonable means to prevent
further dependent adult abuse, including but not limited to any of
the following:
1. If requested, remaining on the scene as long as there is a
danger to the dependent adult's physical safety without the presence
of a peace officer, including but not limited to staying in the
facility or program, or if unable to remain at the scene, assisting
the dependent adult in leaving the facility or program and securing
support services or emergency shelter services.
2. Assisting the dependent adult in obtaining medical treatment
necessitated by the dependent adult abuse, including providing
assistance to the dependent adult in obtaining transportation to the
emergency room of the nearest hospital.
3. Providing a dependent adult with immediate and adequate notice
of the dependent adult's rights. The notice shall consist of handing
the dependent adult a document that includes the telephone numbers of
shelters, support groups, and crisis lines operating in the area and
contains a copy of the following written statement; requesting the
dependent adult to read the card; and asking the dependent adult
whether the dependent adult understands the rights:
"a. You have the right to ask the court for the following
help on a temporary basis:
(1) Keeping the alleged perpetrator away from you, your home,
your facility, and your place of work.
(2) The right to stay at your home or facility without
interference from the alleged perpetrator.
(3) Professional counseling for you, your family, or household
members, and the alleged perpetrator of the dependent adult abuse.
b. If you are in need of medical treatment, you have the
right to request that the peace officer present assist you in
obtaining transportation to the nearest hospital or otherwise assist
you.
c. If you believe that police protection is needed for your
physical safety, you have the right to request that the peace officer
present remain at the scene until you and other affected parties can
leave or safety is otherwise ensured."
Section History: Recent Form
2008 Acts, ch 1093, §13; 2009 Acts, ch 133, §90, 91
235E.4 CHAPTER 235B APPLICATION.
Sections 235B.4 through 235B.20, where not inconsistent with this
chapter, shall apply to this chapter. Section History: Recent Form
2008 Acts, ch 1093, §14; 2009 Acts, ch 41, §97; 2009 Acts, ch 133,
§92
235E.5 RULEMAKING AUTHORITY.
The department, in cooperation and consultation with the dependent
adult protective advisory council established in section 235B.1,
affected industry representatives, and professional and consumer
groups, may adopt rules pursuant to chapter 17A to administer this
chapter. Section History: Recent Form
2008 Acts, ch 1093, §15