MONTPELIER -- The Vermont Senate is considering legislation that will give investigators access to financial and medical records in certain elder abuse cases.

Currently, a relative who has the power of attorney and is being investigated for elder abuse can refuse to turn over records.

In such cases, the senior citizen cannot give investigators with Adult Protective Services access to financial or medical information.

"Unfortunately there are cases of drug diversion or financial exploitation where this becomes a problem," said Barbara Prine, an attorney with Vermont Legal Aid's Senior Law Project.

"There are situations where someone is taking grandma's check book and signing her name, or a caretaker is taking the pain meds of a senior with diminished capacity," Prine said.

It can be hard to prove wrongdoing in these cases, or even launch an investigation without access to medical and financial records, she added.

A bill before the Senate Health and Welfare Committee, S.23, would allow investigators to subpoena relevant documents when the person suspected of exploiting a senior also has power-of-attorney.

Sen. Claire Ayer, D-Addison, chair of Health and Welfare, said her committee will ask for a suspension of the rules in order to vote on the bill next Tuesday.

The panel missed the Friday deadline for crossover because an attorney for the legislature who was helping to craft the bill was in a car accident on her way to work.

Provisions of the bill that would protect a senior's right to deny access to records when they have capacity, as well as a section granting immunity to the parties who turn over the subpoenaed records still need work.

The lawyer was not hurt in the accident, and Ayer praised her dedication.

Barbara Prine, lawyer for Vermont Legal Aid. (VTDigger photo by Anne Galloway)
Barbara Prine, lawyer for Vermont Legal Aid. (VTDigger photo by Anne Galloway)
When she called in, she was concerned that her absence would delay the bill.

The immunity clause would prevent someone who is found to have exploited or abused an elder from suing the hospital, bank or other organization that turned over the incriminating records, Ayer said.

The legislation started out in the Senate Judiciary Committee and was introduced by the committee's chair Sen. Dick Sears, D-Bennington.

Sears said the legislation stems from conversations he had this summer with a former investigator for Adult Protective Services.

The bill has support from the Vermont Department of Disabilities Aging and Independent Living and advocates for the elderly.

Susan Wehry, the commissioner of DAIL, said the amendments to the bill have allayed her initial concerns about the privacy of alleged victims.

"We view this bill as adding another tool in APS' investigation toolbox," said Virginia Milkey, director of Community of Vermont Elders, "To the extent that this bill strengthens APS investigators' ability to investigate reports of abuse, neglect or exploitation of vulnerable adults in a timely manner, it is a good thing."

The Senior Law Project filed suit two years ago alleging the APS system for investigating allegations of abuse, neglect and exploitation was broken.

That case was settled last August. At the time Prine released a statement saying that through litigation it was revealed that, "reports of abuse were not being responded to quickly, that many credible reports were not being investigated, that abuse that should have been substantiated was not substantiated, and that protective services were not consistently provided to protect people."

As part of the settlement APS agreed to a set of changes to their practices aimed at increasing the number of reports that are investigated and eventually substantiated.

An independent group was formed to review case files and report every three months on whether a number of benchmarks for improved investigations are being met.

Prine said she believes the settlement has led to real improvement in how APS operates.

The first three-month report was delivered before the agency was able to implement the changes called for in the settlement, but it showed they hadn't lived up to five of the eight benchmarks, she said.

She still has lingering concerns about the timeliness of investigations and the number that are substantiated, Prine said, as well as ASP's procedures for investigating nursing home cases.

"I think the second three-month review will really tell us how they're doing," Prine said.

The next report is due April 10.

Wehry said the independent review will help her department identify areas that still need work, and she anticipates each report will show progress.

"I only expect to get better each time, because the whole model of the panel review is to help us focus on areas where we can improve," Wehry said.