How to Obtain a Copy of an APS Report on Alleged Mistreatment of an At-Risk Adult
Obtaining a copy of an Adult Protective Services (APS) investigation report on the alleged mistreatment of an at-risk adult in Colorado is important for those who have been the subject of an investigation or for those who have a loved one who has been the subject of an investigation. The report can provide important information about allegations made, the investigation, the actions taken by APS, and any recommendations APS has made for taking the matter forward. Although often considered to require a court order, an APS report can be obtained without a court order under specific circumstances in Colorado.
What is an At-Risk Adult?
There are two important definitions of an At-Risk Adult in Colorado that are important to understand prior to discussing who may be entitled to request a copy of the investigation report.
The first flows from the authority of the regulatory agencies involved with APS – County Adult Protective Services Offices and the Colorado Department of Human Services.
“At-Risk adult” means an individual eighteen years of age or older who is susceptible to mistreatment or self-neglect because the individual is unable to perform or obtain services necessary for his or her health, safety, or welfare, or lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person or affairs.[1]
The second flows from the criminal statutes in Colorado.
"At-risk adult" means any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability as said term is defined in subsection (11) of this section.[2]
The criminal statute defines “at-risk adult” more narrowly to someone over seventy years of age, or someone with a specific disability. This can be very important when law enforcement becomes involved. However, this article addresses the APS regulatory findings and not criminal citations involving at-risk adults.
What is Mistreatment of an At-Risk Adult?
"Mistreatment" means:
(a) Abuse;
(b) Caretaker neglect;
(c) Exploitation;
(d) An act or omission that threatens the health, safety, or welfare of an at-risk adult; or
(e) An act or omission that exposes an at-risk adult to a situation or condition that poses an imminent risk of bodily injury to the at-risk adult.[3]
Why Does Someone Want a Copy of an APS Report?
There are several reasons someone may want a copy of an APS investigation report.
Firstly, a person who has been the subject of an APS investigation may want to obtain a copy of the report to understand the specific allegations made against them and the evidence that was collected during the investigation. This is especially important because the Colorado Office of the State Auditor in 2020 found significant problems with APS investigations. The State Auditor found that in 23% of the cases sampled from 2019, the county investigations, service coordination, and/or case documentation did not follow statute or rules. Problems included incomplete investigations and assessments of at-risk adults, inaccurate findings, and untimely case plans and visits with adults. Thus, if APS issues substantiated findings of mistreatment of an at-risk adult, a person may want to obtain a copy of the report to challenge the findings in the legal system.
Secondly, APS may allege mistreatment of an at-risk adult, but the adult may disagree that mistreatment has occurred. It is not unusual for at-risk adults and others to find the protective efforts of government employees to be over-protective, misplaced, or generally unwelcome. Thus, alleged victim may want to review the report and get involved to correct overzealous APS enforcement.
Next, and very importantly, if a person has a loved one who is a victim of mistreatment, they may want to obtain a copy of the report to understand the care needs of the person and plan for their future care.
APS Investigation Reports are Confidential, with Exceptions
APS investigation reports are confidential.
Pursuant to Section 26-3.1-102(7)(a), C.R.S. and except as provided in Section 26-3.1-102(7)(b), C.R.S. and Section 30.250, B, reports of the mistreatment or self-neglect of any at-risk adult, including the name and address of any at-risk adult, member of said adult’s family, or informant, or any other identifying information contained in such reports and subsequent cases resulting from the reports, is confidential, and is not public information.
12 CCR 2518-2, 30.250 (A).
However, there are two situations that allow disclosure of the investigation report. Firstly, the recipient of the substantiated finding of mistreatment chooses to appeal the findings.
5. The disclosure is made for purposes of the appeals process relating to a substantiated case of mistreatment of an at-risk adult pursuant to Section 26-3.1-108(2), C.R.S.[4]
Secondly, the at-risk adult or their guardian may wish the see the report.
7. The disclosure is made to an at-risk adult, or if the at-risk adult is otherwise incompetent at the time of the request, to the guardian or guardian ad litem for the at-risk adult . . .[5]
While access to the investigation report may be allowed, there are some limitations on the information that may be disclosed.
a. The disclosure shall not be made until after investigation is complete; and,
The disclosure shall not include any identifying information related to the reporting party or any other appropriate persons, as follows:
The county department shall redact any and all identifying information related to the reporting party; and,
The county department may redact Personal Identifying Information (PII) related to the client, supports, collaterals, and alleged or substantiated perpetrators, as deemed necessary by the county department; and,
The county department shall redact all Personal Health Information (PHI) protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), state, or federal law of the reporting party, supports, collaterals, and alleged or substantiated perpetrator; and,
The county department shall obtain from the guardian a copy of the guardianship order or guardian ad litem appointment, independently verify that the order or appointment remains valid, and attach the order or appointment to the client’s case in CAPS[6]
In summary, if a person is the recipient of the “substantiated findings” report of APS or they are the at-risk adult, they are entitled to request a copy of the report from the county APS office.
Consult your attorney for help in drafting the request or in helping the County APS officials understand why you may be entitled to receive a copy of the investigation report.
Look for more weekly blog posts on topics of interest to Colorado Assisted Living operators and the Colorado Assisted Living Association. The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact brian@pinkowskilaw.com or your own legal professional if you would like specific advice on this topic. We welcome topic suggestions!
Write to brian@pinkowskilaw.com if you are curious to learn more about a certain topic impacting assisted living or other group housing concerns.
Nuances of Mandatory Reporting Part I
Mandatory Reporting Part II
[1] C.R.S. § 26-3.1-101(1.5). This definition is repeated verbatim in the regulations related to APS, 12 CCR 2518-1-30.100.
[2] C.R.S. §18-6.5-102.
[3] C.R.S. § 26-3.1-101(7). This definition is repeated verbatim in 12 CCR 2518-1-30.100.
[4] 12 CCR 2518-2, 30.250 (B)(5)
[5] 12 CCR 2518-2, 30.250 (B)(7)
[6] 12 CCR 2518-2, 30.250 (B)(7)