SUMMARY--Makes various changes related to crimes against older persons. (BDR 15-614)
FISCAL NOTE: Effect on Local Government: Yes.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to crimes; making it a crime to intentionally isolate an older person; making it a crime to conspire to commit abuse, exploitation or isolation of an older person; requiring a law enforcement agency to promptly seek to obtain a warrant for the arrest of a person who is criminally responsible for a crime against an older person; providing a penalty; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1 NRS 193.1675 is hereby amended to read as follows:
193.1675 1. Except as otherwise provided in NRS 193.169, any person who willfully violates any provision of NRS 200.280, 200.310, 200.366, 200.380, 200.400, 200.460, 200.465 or 200.508, subsection 3 of NRS 200.5099 or paragraph (a) of subsection 2 of NRS 200.575 or section 3 of this act because the actual or perceived race, color, religion, national origin, physical or mental disability or sexual orientation of the victim was different from that characteristic of the perpetrator, may be punished by imprisonment in the state prison for an additional term not to exceed 25 percent of the term of imprisonment prescribed by statute for the crime.
2. This section does not create a separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.
Sec. 2 Chapter 200 of NRS is hereby amended by adding thereto the provisions set forth as sections 3, 4 and 5 of this act.
Sec. 3 1. Except as otherwise provided in subsection 2, a person shall not intentionally prevent another person from having contact with an older person. Intentionally preventing contact with an older person includes, without limitation:
(a) Communicating to a person who comes to visit the older person or a person who telephones the older person that the older person is not present or does not want to meet with or talk with the visitor or caller knowing that the statement is false, contrary to the express wishes of the older person or intended to prevent the older person from having contact with the visitor or caller;
(b) Physically restraining the older person to prevent the older person from meeting with a person who comes to visit the older person, unless a physician has instructed the person to restrain the older person for medical reasons; or
(c) Attempting to prevent the older person from having contact with a relative, friend or other person who is concerned about the older person by making false and negative statements about the person.
2. A person who violates the provisions of subsection 1 is guilty of isolation of an older person and shall be punished:
(a) For the first offense, for a gross misdemeanor.
(b) For the second and any subsequent offense, for a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $5,000.
3. The provisions of this section do not apply to a person who commits an act described in subsection 1 if he reasonably believed that failure to do so would pose a threat of danger to the health, welfare or property of the older person.
Sec. 4 A person who conspires with another to commit abuse of an older person pursuant to subsection 2 of NRS 200.5099, exploitation of an older person pursuant to subsection 4 of NRS 200.5099 or isolation of an older person pursuant to section 3 of this act, shall be punished:
1. For the first offense, for a gross misdemeanor.
2. For the second and all subsequent offenses, for a category C felony as provided in NRS 193.130.
In addition to any other penalty, the court shall order the person to pay restitution. Each person found guilty of such a conspiracy is jointly and severally liable for the restitution with each other person found guilty of the conspiracy.
Sec. 5 A law enforcement agency shall promptly seek to obtain a warrant for the arrest of any person the agency has probable cause to believe is criminally responsible for the abuse, neglect, exploitation or isolation of an older person.
Sec. 6 NRS 200.5091 is hereby amended to read as follows:
200.5091 It is the policy of this state to provide for the cooperation of law enforcement officials, courts of competent jurisdiction and all appropriate state agencies providing human services in identifying the abuse, neglect , [and] exploitation and isolation of older persons through the complete reporting of abuse, neglect , [and] exploitation and isolation of older persons.
Sec. 7 NRS 200.5092 is hereby amended to read as follows:
200.5092 As used in NRS 200.5091 to 200.5099, inclusive, and sections 3, 4 and 5 of this act, unless the context otherwise requires:
1. "Abuse" means willful and unjustified:
(a) Infliction of pain, injury or mental anguish [;] on an older person; or
(b) Deprivation of food, shelter, clothing or services which are necessary to maintain the physical or mental health of an older person.
2. "Exploitation" means any act taken by a person who has the trust and confidence of an older person or any use of the power of attorney or guardianship of an older person to obtain control, through deception, intimidation or undue influence, over the older person's money, assets or property with the intention of permanently depriving the older person of the ownership, use, benefit or possession of his money, assets or property. As used in this subsection, "undue influence" does not include the normal influence that one member of a family has over another.
3. "Isolation" means intentionally preventing an older person from having contact with another person in violation of section 3 of this act.
4. "Neglect" means the failure of:
(a) A person who has assumed legal responsibility or a contractual obligation for caring for an older person or who has voluntarily assumed responsibility for his care to provide food, shelter, clothing or services which are necessary to maintain the physical or mental health of the older person; or
(b) An older person to provide for his own needs because of inability to do so.
[4.] 5. "Older person" means a person who is 60 years of age or older.
[5.] 6. "Protective services" means services the purpose of which is to prevent and remedy the abuse, [exploitation and] neglect , exploitation and isolation of older persons. The services may include investigation, evaluation, counseling, arrangement and referral for other services and assistance.
Sec. 8 NRS 200.5093 is hereby amended to read as follows:
200.5093 1. [Any] A person required to make a report pursuant to this section shall make the report immediately, but in no event later than 24 hours after there is reason to believe that an older person has been abused, neglected [or exploited.] , exploited or isolated. The report must be made to:
(a) The local office of the welfare or aging services division of the department of human resources;
(b) [Any] A police department or sheriff's office; or
(c) The county's office for protective services, if one exists in the county where the suspected action occurred.
If the report of abuse, neglect , [or] exploitation or isolation of an older person involves an act or omission of the welfare division, aging services division or a law enforcement agency, the report must be made to an agency other than the one alleged to have committed the act or omission. Each agency, after reducing the report to writing, shall forward a copy of the report to the aging services division of the department of human resources.
2. Reports must be made by the following persons who, in their professional or occupational capacities, know or have reason to believe that an older person is being or has been abused, neglected [or exploited:] , exploited or isolated:
(a) Every physician, dentist, dental hygienist, chiropractor, optometrist, podiatric physician, medical examiner, resident, intern, professional or practical nurse, physician's assistant, psychiatrist, psychologist, marriage and family therapist, alcohol or drug abuse counselor, driver of an ambulance, advanced emergency medical technician or other person providing medical services licensed or certified to practice in this state, who examines, attends or treats an older person who appears to have been abused, neglected [or exploited.] , exploited or isolated.
(b) Any personnel of a hospital or similar institution engaged in the admission, examination, care or treatment of persons or an administrator, manager or other person in charge of a hospital or similar institution upon notification of the suspected abuse, neglect , [or] exploitation or isolation of an older person by a member of the staff of the hospital.
(c) A coroner.
(d) Every clergyman, practitioner of Christian Science or religious healer, unless he acquired the knowledge of abuse, neglect , [or] exploitation or isolation of the older person from the offender during a confession.
(e) Every person who maintains or is employed by an agency to provide nursing in the home.
(f) Every attorney, unless he has acquired the knowledge of abuse, neglect , [or] exploitation or isolation of the older person from a client who has been or may be accused of [the] such abuse, neglect [or exploitation.] , exploitation or isolation.
(g) Any employee of the department of human resources.
(h) Any employee of a law enforcement agency or a county's office for protective services or an adult or juvenile probation officer.
(i) Any person who maintains or is employed by a facility or establishment that provides care for older persons.
(j) Any person who maintains, is employed by or serves as a volunteer for an agency or service which advises persons regarding the abuse, neglect , [or] exploitation or isolation of an older person and refers them to persons and agencies where their requests and needs can be met.
(k) Every social worker.
3. A report may be filed by any other person.
4. [Any] A person required to make a report pursuant to this section who has reasonable cause to believe that an older person has died as a result of abuse , [or] neglect or isolation shall report this belief to the appropriate medical examiner or coroner, who shall investigate the cause of death of the older person and submit to the appropriate local law enforcement agencies, the appropriate prosecuting attorney and the aging services division of the department of human resources his written findings. The written findings must include the information required pursuant to the provisions of NRS 200.5094, when possible.
5. A division, office or department which receives a report pursuant to this section shall cause the investigation of the report to commence within 3 working days. A copy of the final report of the investigation conducted by a division, office or department, other than the aging services division of the department of human resources, must be forwarded to the aging services division within 90 days after the completion of the report.
6. If the investigation of the report results in the belief that the older person is abused, neglected [or exploited,] , exploited or isolated, the welfare division of the department of human resources or the county's office for protective services may provide protective services to the older person if he is able and willing to accept them.
Sec. 9 NRS 200.5094 is hereby amended to read as follows:
200.5094 1. The report required pursuant to NRS 200.5093 may be made orally, by telephone or otherwise. The person who receives the report must reduce it to writing as soon as possible.
2. The report must contain the following information, when possible:
(a) The name and address of the older person;
(b) The name and address of the person responsible for his care, if there is one;
(c) The name and address, if available, of the person who is alleged to have abused, neglected , [or] exploited or isolated the older person;
(d) The nature and extent of the abuse, neglect [or exploitation;] , exploitation or isolation of the older person;
(e) Any evidence of previous injuries; and
(f) The basis of the reporter's belief that the older person has been abused, neglected [or exploited.] , exploited or isolated.
Sec. 10 NRS 200.5095 is hereby amended to read as follows:
200.5095 1. Reports made pursuant to NRS 200.5093 and 200.5094, and records and investigations relating to those reports, are confidential.
2. [Any] A person, law enforcement agency or public or private agency, institution or facility who willfully releases data or information concerning the reports and investigation of the abuse, neglect , [or] exploitation or isolation of older persons, except:
(a) Pursuant to a criminal prosecution;
(b) Pursuant to NRS 200.50982; or
(c) To persons or agencies enumerated in subsection 3 of this section,
is guilty of a misdemeanor.
3. Except as otherwise provided in subsection 2 and NRS 200.50982, data or information concerning the reports and investigations of the abuse, neglect , [or] exploitation or isolation of an older person is available only to:
(a) A physician who is providing care to an older person who may have been abused, neglected [or exploited;] , exploited or isolated;
(b) An agency responsible for or authorized to undertake the care, treatment and supervision of the older person;
(c) A district attorney or other law enforcement official who requires the information in connection with an investigation of the abuse, neglect , [or] exploitation or isolation of the older person;
(d) A court which has determined, in camera, that public disclosure of such information is necessary for the determination of an issue before it;
(e) A person engaged in bona fide research, but the identity of the subjects of the report must remain confidential;
(f) A grand jury upon its determination that access to such records is necessary in the conduct of its official business;
(g) Any comparable authorized person or agency in another jurisdiction;
(h) A legal guardian of the older person, if the identity of the person who was responsible for reporting the alleged abuse, neglect , [or] exploitation or isolation of the older person to the public agency is protected, and the legal guardian of the older person is not the person suspected of [the] such abuse, neglect [or exploitation;] , exploitation or isolation;
(i) If the older person is deceased, the executor or administrator of his estate, if the identity of the person who was responsible for reporting the alleged abuse, neglect , [or] exploitation or isolation of the older person to the public agency is protected, and the executor or administrator is not the person suspected of [the] such abuse, neglect [or exploitation;] , exploitation or isolation; or
(j) The older person named in the report as allegedly being abused, neglected [or exploited,] , exploited or isolated, if that person is not legally incompetent.
4. If the person who is reported to have abused, neglected , [or] exploited or isolated an older person is the holder of a license or certificate issued pursuant to chapters 449, 630 to 641B, inclusive, or 654 of NRS, information contained in the report must be submitted to the board [which] that issued the license.
Sec. 11 NRS 200.5096 is hereby amended to read as follows:
200.5096 Immunity from civil or criminal liability extends to every person who, pursuant to NRS 200.5091 to 200.5099, inclusive, in good faith:
1. Participates in the making of a report;
2. Causes or conducts an investigation of alleged abuse, neglect , [or] exploitation or isolation of an older person; or
3. Submits information contained in a report to a licensing board pursuant to subsection 4 of NRS 200.5095.
Sec. 12 NRS 200.5098 is hereby amended to read as follows:
200.5098 1. The aging services division of the department of human resources shall:
(a) Identify and record demographic information on the older person who is alleged to have been abused, neglected , [or] exploited or isolated and the person who is alleged to be responsible for [the] such abuse, neglect [or exploitation.] , exploitation or isolation.
(b) Obtain information from programs for preventing abuse of older persons, analyze and compare the programs, and make recommendations to assist the organizers of the programs in achieving the most efficient and effective service possible.
(c) Publicize the provisions of NRS 200.5091 to 200.5099, inclusive.
2. The administrator of the aging services division of the department may organize one or more teams to assist in strategic assessment and planning of protective services, issues regarding the delivery of service, programs or individual plans for preventing, identifying, remedying or treating abuse, neglect , [or] exploitation or isolation of older persons. Members of the team serve at the invitation of the administrator and must be experienced in preventing, identifying, remedying or treating abuse, neglect , [or] exploitation or isolation of older persons. The team may include representatives of other organizations concerned with education, law enforcement or physical or mental health.
3. The team may receive otherwise confidential information and records pertaining to older persons to assist in assessing and planning. The confidentiality of any information or records received must be maintained under the terms or conditions required by law. The content of any discussion regarding information or records received by the team pursuant to this subsection is not subject to discovery and a member of the team shall not testify regarding any discussion which occurred during the meeting. Any information disclosed in violation of this subsection is inadmissible in all judicial proceedings.
Sec. 13 NRS 200.50982 is hereby amended to read as follows:
200.50982 The provisions of NRS 200.5091 to 200.5099, inclusive, do not prohibit an agency which is investigating a report of abuse, neglect [or exploitation,] , exploitation or isolation, or which provides protective services, from disclosing data or information concerning the reports and investigations of the abuse, neglect , [or] exploitation or isolation of an older person to other federal, state or local agencies or the legal representatives of the older person on whose behalf the investigation is being conducted if:
1. The agency making the disclosure determines that the disclosure is in the best interest of the older person; and
2. Proper safeguards are taken to ensure the confidentiality of the information.
Sec. 14 NRS 200.50984 is hereby amended to read as follows:
200.50984 1. Notwithstanding any other statute to the contrary, the local office of the welfare division of the department of human resources and a county's office for protective services, if one exists in the county where a violation is alleged to have occurred, may for the purpose of investigating an alleged violation of NRS 200.5091 to 200.5099, inclusive, inspect all records pertaining to the older person on whose behalf the investigation is being conducted, including, but not limited to, that person's medical and financial records.
2. Except as otherwise provided in this subsection, if a guardian has not been appointed for the older person, the welfare division or the county's office for protective services shall obtain the consent of the older person before inspecting those records. If the welfare division or the county's office for protective services determines that the older person is unable to consent to the inspection, the inspection may be conducted without his consent. Except as otherwise provided in this subsection, if a guardian has been appointed for the older person, the welfare division or the county's office for protective services shall obtain the consent of the guardian before inspecting those records. If the welfare division or the county's office for protective services has reason to believe that the guardian is abusing, neglecting , [or] exploiting or isolating the older person, the inspection may be conducted without the consent of the guardian, except that if the records to be inspected are in the personal possession of the guardian, the inspection must be approved by a court of competent jurisdiction.
Sec. 15 NRS 200.50986 is hereby amended to read as follows:
200.50986 The local office of the welfare division or the county's office for protective services may petition a court in accordance with NRS 159.185 or 159.1905 for the removal of the guardian of an older person, or the termination or modification of that guardianship, if, based on its investigation, the welfare division or the county's office of protective services has reason to believe that the guardian is abusing, neglecting , [or] exploiting or isolating the older person in violation of NRS 200.5095 to 200.5099, inclusive [.] , and section 3 of this act.
Sec. 16 NRS 207.010 is hereby amended to read as follows:
207.010 1. Unless the person is prosecuted pursuant to NRS 207.012 or 207.014, a person convicted in this state of:
(a) Any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who has previously been two times convicted, whether in this state or elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a felony, or who has previously been three times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, is a habitual criminal and shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 5 years and a maximum term of not more than 20 years.
(b) Any felony involving the use or threatened use of force or violence against the victim, who has previously been three times convicted, whether in this state or elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a felony, or who has previously been five times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or the intent to defraud is an element, is a habitual criminal and shall be punished for a category A felony by imprisonment in the state prison:
(1) For life without the possibility of parole;
(2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or
(3) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.
(c) Isolation of an older person in violation of section 3 of this act, who has previously been two times convicted of that offense, or of violating the law of any other jurisdiction that prohibits the same or similar conduct as the conduct prohibited pursuant to section 3 of this act, is a habitual criminal and shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 5 years and a maximum term of not more than 20 years.
2. It is within the discretion of the prosecuting attorney whether to include a count under this section in any information or file a notice of habitual criminality if an indictment is found. The trial judge may, at his discretion, dismiss a count under this section which is included in any indictment or information.
Sec. 17 NRS 207.016 is hereby amended to read as follows:
207.016 1. A conviction under NRS 207.010, 207.012 or 207.014 operates only to increase, not to reduce, the sentence otherwise provided by law for the principal crime.
2. If a count under NRS 207.010, 207.012 or 207.014 is included in an information charging the primary offense, each previous conviction must be alleged in the accusatory pleading, but no such conviction may be alluded to on trial of the primary offense, nor may any allegation of the conviction be read in the presence of a jury trying the offense or a grand jury considering an indictment for the offense. A count under NRS 207.010, 207.012 or 207.014 may be separately filed after conviction of the primary offense, but if it is so filed, sentence must not be imposed, or the hearing required by subsection 3 held, until 15 days after the separate filing.
3. If a defendant charged under NRS 207.010, 207.012 or 207.014 pleads guilty or guilty but mentally ill to, or is found guilty of, the primary offense, but denies any previous conviction charged, the court shall determine the issue of the previous conviction after hearing all relevant evidence presented on the issue by the prosecution and the defendant. At such a hearing, the defendant may not challenge the validity of a previous conviction. The court shall impose sentence:
(a) Under NRS 207.010 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitual criminality;
(b) Under NRS 207.012 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitual felon; or
(c) Under NRS 207.014 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitually fraudulent felon.
4. Nothing in the provisions of this section, NRS 207.010, 207.012 or 207.014 limits the prosecution in introducing evidence of prior convictions for purposes of impeachment.
5. For the purposes of NRS 207.010, 207.012 and 207.014, a certified copy of a felony conviction is prima facie evidence of conviction of a prior felony.
6. For the purposes of NRS 207.010, a certified copy of a gross misdemeanor conviction is prima facie evidence of conviction of a gross misdemeanor.
Sec. 18 NRS 41.690 is hereby amended to read as follows:
41.690 1. A person who has suffered injury as the proximate result of the willful violation of the provisions of NRS 200.280, 200.310, 200.366, 200.380, 200.400, 200.460, 200.465, 200.471, 200.481, 200.508, 200.5099, 200.571, 200.575, 203.010, 203.020, 203.030, 203.060, 203.080, 203.090, 203.100, 203.110, 203.119, 206.010, 206.040, 206.140, 206.200, 206.310, 207.180, 207.200 or 207.210 or section 3 of this act by a perpetrator who was motivated by the injured person's actual or perceived race, color, religion, national origin, physical or mental disability or sexual orientation, may bring an action for the recovery of his actual damages and any punitive damages which the facts may warrant. If the person who has suffered injury prevails in an action brought pursuant to this subsection, the court shall award him costs and reasonable attorney's fees.
2. The liability imposed by this section is in addition to any other liability imposed by law.
Sec. 19 The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 20 Sections 1, 3, 4, 8, 10, 16 and 18 of this act do not apply to offenses that are committed before July 1, 1997.
Sec. 21 This act becomes effective on July 1, 1997.