TITLE 20. ELDERLY SERVICES

TITLE 20. ELDERLY SERVICES

ACULAKE VFVSTETV

Chapter

Section

1. SENIOR SERVICES DEPARTMENT. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 1–101

2. OMBUDSMAN PROGRAM FOR RESIDENTS OF NURSING

HOMES. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 2–101

3. PROTECTION OF TRIBAL ELDERS. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 3–101

4. AIR CONDITIONERS AND FANS. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 4–101

CHAPTER 1.

SENIOR SERVICES DEPARTMENT

Section

1–101. Creation of new department.

1–102. Administrative management.

1–103. Senior Services Advisory Committee.

Historical and Statutory Notes

NCA 99–09, §§ 101, 103, provide:

‘‘Section 101. Findings: The National Council

finds that:

‘‘A. There is a responsibility to further develop and enhance services for the growing elderly

population, defined as persons 55 years of age

and older, of the Muscogee (Creek) Nation. This

responsibility includes establishing supportive

services which will improve the quality of life

for the frail, for the impaired, and for those

citizens who have a need. This responsibility

can best be performed under a separate department with a mission to serve as advocate for all

elderly programs throughout the Muscogee

(Creek) Nation.

‘‘B. By Constitutional mandate, the Principal Chief is authorized to create and organize

the Executive Office with the advice and con-

sent of the National Council (Article V, Section

2).’’

‘‘Section 103. Purpose:

‘‘The purpose of this Act is to authorize the

Executive Branch to establish a new department, hereinafter to be called the Senior Services Department. This department’s primary

mission is to develop and coordinate community based systems of services for all older persons

within the Muscogee (Creek) Nation. Presently

there is a need among the elderly for such

supportive services as transportation services,

legal assistance and education services, in-home

services, elder abuse prevention services, health

support services, and outreach services; of

which the Muscogee (Creek) Nation has only

the nutrition program, an advocacy program,

and the Community Health Representative program.’’

Cross References

Budget, Senior Services Department, see Title 37, § 2–120.

§ 1–101. Creation of new department

The Senior Services Department of the Muscogee (Creek) Nation is hereby

established as a new department within the Executive Branch.

[NCA 99–09, § 102, approved Feb. 3, 1999.]

Library References

Indians O126, 210.

Westlaw Topic No. 209.

C.J.S. Indians §§ 46 to 50, 53, 57 to 59, 66 to

72.

411

Title 20, § 1–102

ELDERLY SERVICES

§ 1–102. Administrative management

A. The administration of the Muscogee (Creek) Nation Senior Services

Department shall be the responsibility of the Manager, Senior Services Department, who shall be a member of the Muscogee (Creek) Nation, who is experienced, knowledgeable and capable of ensuring performance under federal and

state funding guidelines for programs for the elderly. The Manager shall be

appointed by the Principal Chief with the advice and consent of the National

Council.

B. The Manager, Senior Services Department, shall be responsible and

report directly to the Executive Director.

C. The Manager, Senior Services Department, is authorized to submit

proposals to federal and other funding entities, negotiate and execute contracts

with the advice and consent of the National Council.

[NCA 99–09, § 105, approved Feb. 3, 1999; amended by NCA 01–74, § 2, approved July

10, 2001; NCA 02–005, § 1, approved Feb. 28, 2002.]

§ 1–103. Senior Services Advisory Committee

The Senior Services Advisory Committee shall be established in compliance

with federal regulations or by Tribal law with the assistance of the Manager,

Senior Services Department. The Committee is merely an advisory committee;

it is not a governing body and has no policy-making power. The Committee can

offer advice regarding the overall operation of the Senior Services Department

to the Department Manager and the Committee shall consist of one (1) elderly

member from each Chartered Community.

[NCA 99–09, § 106, approved Feb. 3, 1999.]

412

CHAPTER 2. OMBUDSMAN PROGRAM FOR

RESIDENTS OF NURSING HOMES

Section

2–101. Establishment of program.

2–102. Regular and routine inspections.

2–103. Complaints.

§ 2–101. Establishment of program

The Ombudsman Program for nursing home residents is hereby established;

to be administered by the Principal Chief according to the terms of this chapter.

[NCA 81–73, § 101, approved June 27, 1981.]

Library References

Indians O126.

Westlaw Topic No. 209.

C.J.S. Indians §§ 46 to 50, 53.

§ 2–102. Regular and routine inspections

The Community Health Representatives shall make regular and routine

inspections of all nursing homes in the Muscogee (Creek) Nation to determine

the health and well-being of Indian residents.

[NCA 81–73, § 102, approved June 27, 1981.]

§ 2–103. Complaints

A. Complaints may be initiated by any Community Health Representative by

written report to the Director of Community Services.

B. Any other individual who has reason to believe that the health and/or

well-being of Indian residents of a nursing home is threatened by improper

care, negligence, or any other reason relating to the policies or performance of

that institution, may request a Community Health Representative to make a

special inspection visit.

C. The Director of Community Services shall consult with the Office of

Justice and the Social Research and Development Administration prior to

making recommendations to the Executive Director and Principal Chief.

D. The Executive Director and Principal Chief shall review all complaints

within ten (10) days of receipt by the Director of Community Services. They

may consult with such other persons as they believe may assist them in

reaching a decision. The decision of the Principal Chief shall be final for the

purpose of this chapter.

E. Upon determination by the Principal Chief that a complaint is justified

and in need of corrective action, he shall:

1. Initiate, conduct, complete and proclaim any negotiations with the institution complained against; or

413

Title 20, § 2–103

2.

ELDERLY SERVICES

Notify the following state agencies in writing:

a. Inspector General, Department of Human Services, P.O. Box 25352,

Oklahoma City, OK 73125.

b. Chairman, State Board of Health, P.O. Box 53551, Oklahoma City, OK

73152, Attention: License and Certification Division.

[NCA 81–73, § 103, approved June 27, 1981.]

414

CHAPTER 3.

PROTECTION OF TRIBAL ELDERS

Section

3–101. Title.

3–102. Policy.

3–103. Purpose.

3–104. Civil nature of chapter.

3–105. Definitions.

3–106. Duty to report abuse or neglect of elder.

3–107. Immunity for reporting.

3–108. Failure to report; civil penalty; damages; criminal liability.

3–109. Bad faith report; civil penalty; damages; criminal liability.

3–110. Investigation.

3–111. Interference with investigation and retaliation prohibited; civil penalty.

3–112. Privileged communication.

3–113. Criminal investigation.

3–114. Elder protective services and elder protective placement; other services; evaluation procedure; duty to pay.

3–115. Emergency.

3–116. Rights of elders, their families and caretakers.

3–117. Procedures for determining incapacity, abuse or neglect.

3–118. Confidentiality of reporter, records, hearings; penalty for not complying with

confidentiality.

3–119. Elder protection order; time limits.

3–120. Term of protective order.

3–121. Petition; hearing.

Cross References

Abuse of elders or mentally incapacitated persons, see Title 14, § 2–318.

§ 3–101. Title

This chapter shall be known and cited as the Muscogee (Creek) Nation (MCN)

‘‘Tribal Elder and Adult Code.’’

[NCA 92–141, § 101, approved Nov. 4, 1992.]

§ 3–102. Policy

It is the policy of Muscogee (Creek) Nation to continue the traditional respect

the citizens of Muscogee (Creek) Nation have for Tribal elders. Elders are

valuable resources as they are our custodians of Tribal history, culture and

tradition and they are the best hope of the Muscogee (Creek) Nation to pass on

Tribal history, culture and tradition to youth and adults of the Nation. Thus, it

is in the interest of and serves the welfare of the Muscogee (Creek) Nation to

protect Tribal elders.

[NCA 92–141, § 102, approved Nov. 4, 1992.]

Library References

Indians O126.

Protection of Endangered Persons O3.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53.

§ 3–103. Purpose

The purpose of this chapter is to protect elders within the jurisdiction of the

Muscogee (Creek) Nation from abuse and/or neglect as defined in this chapter.

415

Title 20, § 3–103

ELDERLY SERVICES

This chapter shall be liberally interpreted in order to achieve its purpose. This

chapter provides for:

A.

Reporting abuse or neglect to the proper agency;

B.

Receiving reports of and investigating suspected abuse or neglect;

C.

Delivering elder protection services.

D.

Delivering protection services to any other incapacitated adult.

[NCA 92–141, § 103, approved Nov. 4, 1992.]

Library References

Indians O126.

Protection of Endangered Persons O3, 6, 14.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53.

§ 3–104. Civil nature of chapter

A. This chapter is civil and does not affect any applicable provisions of the

Muscogee (Creek) Nation Criminal Code unless modified specifically by this

chapter.

B. The chapter may also be applied to any adult citizen of MCN should

circumstances warrant; as defined in this chapter, any section or portion

thereof containing the word ‘‘elder’’ may be liberally construed to include and

mean ‘‘or other adult’’.

[NCA 92–141, § 104, approved Nov. 4, 1992.]

§ 3–105. Definitions

A. Abuse is:

1. intentional or negligent infliction of bodily injury, unreasonable confinement, intimidation, or cruel punishment of an elder with resulting physical

harm or pain or mental anguish by any person, including anyone who has a

special relationship with the elder such as a spouse, a child, or other relative

recognized by Tribal law and custom, or a caretaker;

2. sexual abuse, which is any physical contact with an elder intended for

sexual gratification of the person making such contact and which is not

consented to by the elder or for which the consent was obtained by intimidation

or fraud;

3. emotional abuse, which is intentional infliction of threats, humiliation, or

intimidation; or

4. exploitation which is the unauthorized and/or improper use of funds,

property, or other resources of an elder; or the unauthorized and/or improper

use of the person of the elder by a caretaker or by any other person for personal

gain or profit; or the failure to use the funds, property, or other resources of an

elder’s benefit or according to the elder’s desires.

B. Caretaker is:

1. a person who is required by Tribal law or custom (or state law) to

provide services or resources to an elder;

416

PROTECTION OF TRIBAL ELDERS

Title 20, § 3–105

2. a person who has voluntarily undertaken to provide care or resources to

an elder;

3. an institution or agency which voluntarily provides or is required by

Tribal law or custom (state or federal law, or Tribal-state agreement) to provide

services or resources to an elder, including the duty to follow-up on placements, and any such institution or agency which receives anything of value in

return for providing services or resources; or,

4. an employee of any institution or agency specified in paragraph 3 of this

subsection.

C. Elder is a senior citizen of the Muscogee (Creek) Nation who is at least

fifty-five (55) years of age.

D. Emergency is a situation in which an elder is immediately at risk of

death or injury and is unable to consent to services which would remove the

risk.

E. Family is determined by Tribal law and custom or tradition.

F. Good faith is an honest belief or purpose and the lack of intent to

defraud.

G. Incapacity is the current inability or functional inability of a person to

sufficiently understand, make, and communicate responsible decisions about

himself as a result of mental illness, mental deficiency, physical illness or

disability, or chronic use of drugs or liquor, and to understand the consequences of any such decision. Incapacity may vary in degree and duration and

shall not be determined solely on the basis of age.

H. Least restrictive alternative is an approach which allows an elder

independence and freedom from intrusion consistent with the elder’s needs by

requiring that the least drastic and intrusive method of intervention be used

when intervention is necessary to protect the elder from harm.

I. Neglect is the failure of a caretaker to provide for the basic needs of an

elder by not supplying resources, services, or supervision necessary to maintain

an elder’s minimum physical and mental health and includes the inability of an

elder to supply such basic needs for himself/herself. Neglect also is:

1.

interfering with delivery of necessary services and resources;

2.

failing to report abuse or neglect of an elder by any person;

3. failing to provide services or resources essential to the elder’s practice of

his customs, traditions, or religion.

J. Other adult shall be defined as a person who is mentally or physically

incapacitated, regardless of age.

K. Protective placement is placement of an elder in a hospital, nursing

home, residential care facility, or transfer of the elder from one such institution

to another with the elder’s consent or appropriate legal authority.

L. Protective services are services provided to an elder with the elder’s

consent or with appropriate legal authority and include, but are not limited to:

social case work, psychiatric and health evaluation, home care, day care, legal

assistance, social services, health care, case management, guardianship and

417

Title 20, § 3–105

ELDERLY SERVICES

other services consistent with this chapter.

placement.

It does not include protective

M. Retaliation is threatening a reporter of elder abuse or the reporter’s

family in any way; causing bodily harm to the reporter or the reporter’s family;

causing the reporter or any of the reporter’s family to be terminated, suspended

from unemployment or reprimanded by an employer, or damaging the reporter’s or the reporter’s family’s real or personal property in any way.

[NCA 92–141, § 105, approved Nov. 4, 1992.]

§ 3–106. Duty to report abuse or neglect of elder

Suspected abuse or neglect of an elder shall be reported to Muscogee (Creek)

Nation Children and Family Services by:

A.

the elder’s family or caretaker;

B.

any Tribal employee;

C.

any Tribal elected official;

D. any employee of a Tribally-owned business, even if not managed by the

Tribe;

E. Indian Health Service personnel and all Muscogee (Creek) Nation clinics

and hospitals;

F.

Bureau of Indian Affairs personnel;

G. any medical or osteopathic doctor, coroner or medical examiner, chiropractor, podiatrist, dentist, religious practitioner, nurse, health aide, human

services worker, elders’ service provider, nursing home provider, or any other

health and elder or human service provider, or its employees who deliver

services to Tribal elders;

H. Any person or agency or employee of such agency with a fiduciary duty

to the elder such as a lawyer, accountant financial institution, or property

manager;

I. Any person who has good reason to suspect that an elder has been or is

being abused or neglected.

[NCA 92–141, § 106, approved Nov. 4, 1992.]

Library References

Indians O126.

Protection of Endangered Persons O9.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53.

§ 3–107. Immunity for reporting

A person who in good faith reports suspected abuse or neglect of an elder is

immune from any civil or criminal suit based on that person’s report.

[NCA 92–141, § 107, approved Nov. 4, 1992.]

Library References

Indians O126.

Protection of Endangered Persons O9.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53.

418

Title 20, § 3–110

PROTECTION OF TRIBAL ELDERS

§ 3–108. Failure to report; civil penalty; damages; criminal liability

Any person who is required by this chapter to report suspected elder abuse

and fails to do so is subject to a civil penalty of up to five hundred dollars

($500.00). The Tribal District Court shall assess the penalty only after petition,

notice, and opportunity for hearing, and a determination that the person had a

mandated duty to report, had good reason to suspect elder abuse or neglect,

and failed to report it as required by this chapter. Further, the person failing

to report is subject to any civil suit brought by or on behalf of the elder for

damages suffered as a result of the failure to report and to any penalties set out

in the Muscogee (Creek) Nation Criminal Code or as allowed by this chapter

shall be guilty of a misdemeanor and upon conviction thereof be assessed

penalty as provided in the Criminal Code.

[NCA 92–141, § 108, approved Nov. 4, 1992.]

Library References

Indians O126, 535.

Protection of Endangered Persons O9, 12.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53, 151 to 179.

§ 3–109. Bad faith report; civil penalty; damages; criminal liability

Any person who makes a report of suspected elder abuse knowing it to be

false is subject to a civil penalty of up to five hundred dollars ($500.00). The

Tribal District Court shall assess the penalty only after petition, notice, and

opportunity for hearing, and determination that the reporter made the report

knowing it to be false. Further, the reporter is subject to any civil suit brought

by or on behalf of the person(s) named as suspected abusers in the false report

for damages suffered as a result of the false report and to any criminal penalties

set out in the Muscogee (Creek) Nation Criminal Code or as allowed by this

code, shall be guilty of a misdemeanor and upon conviction thereof be assessed

penalty as provided in the Criminal Code.

[NCA 92–141, § 109, approved Nov. 4, 1992.]

Library References

Indians O126, 535.

Protection of Endangered Persons O9, 12.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53, 151 to 179.

§ 3–110. Investigation

A. Muscogee (Creek) Nation Children and Family Services shall receive a

report of elder abuse or neglect and shall refer a report when necessary under

the circumstances to Lighthorse Administration for investigation as required by

subsection B of this section.

B. The Muscogee (Creek) Nation Children and Family Services or Lighthorse Administration shall investigate the report within seventy-two (72) hours

and prepare a written report of the investigation which shall include the

information set out in subsection C of this section as well as the results of

interviews, observations and assessments and other fact finding. The investigator shall conduct in-person interviews with the elder, elder’s family and

caretaker, persons suspected of having committed the acts complained of,

employees of agencies or institutions with knowledge of the elder’s circum419

Title 20, § 3–110

ELDERLY SERVICES

stances, and any other person the investigator believes has pertinent information. The existence and contents of medical records and other reports of abuse

and neglect shall be ascertained. The investigator personally shall assess the

elder’s living conditions including the elder’s sleeping quarters. The investigator shall use Tribal standards of housing and care in the assessment. An

investigative report shall be filed with the office of the Attorney General within

ten (10) days.

C.

The report may be oral or in writing and shall contain:

1.

the elder’s name, address or location, telephone number;

2. name, address or location, telephone number of the person(s) or agency

who is suspected of abusing or neglecting the elder;

3.

the nature and degree of incapacity of the elder;

4.

the name, address or location, telephone number of witnesses;

5.

the name, address or location, telephone number of the elder’s caretaker;

6. a description of the acts which are complained of as abusive or neglectful; and

7. any other information that the reporter believes might be helpful in

establishing abuse or neglect.

8. such report may be made on the Report of Suspected Abuse or Neglect

form(s) of Children and Family Services.

D. The investigation report shall be filed in the Attorney General office

within ten (10) days and remain on file and not be destroyed for a period of

four (4) years, even if it is determined that there is insufficient evidence to

pursue legal action. (However, if the investigating agency determines that the

investigation report was made in bad faith, it shall be destroyed immediately

after the investigation is completed if the evidence is insufficient to show abuse

or neglect.)

[NCA 92–141, § 110, approved Nov. 4, 1992.]

Library References

Indians O126.

Protection of Endangered Persons O9.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53.

§ 3–111. Interference with investigation and retaliation prohibited; civil

penalty

A. No person shall interfere intentionally with a lawful investigation of

suspected elder abuse.

B. No person shall retaliate by any means against any person who has made

a good faith report of suspected elder abuse or who cooperates with an

investigation of suspected elder abuse.

C. Any person who violates subsection A or B of this section shall be

enjoined from such activity and shall be subject to a civil penalty of up to five

hundred dollars ($500.00) per occurrence shall be guilty of a misdemeanor and

upon conviction, thereof be assessed penalty as provided in the Criminal Code

(and, if a Tribal employee, to appropriate disciplinary action as allowed by the

420

Title 20, § 3–114

PROTECTION OF TRIBAL ELDERS

Tribal personnel policies and procedures). The penalty shall be assessed by the

Tribal District Court only after petition, notice, the opportunity to be heard, and

a determination that either interference or retaliation as set out in this section

occurred. Further, notice of such determination shall be provided to the

person’s Tribal employer and appropriate licensing agencies.

[NCA 92–141, § 111, approved Nov. 4, 1992.]

§ 3–112. Privileged communication

No evidentiary privilege except for the attorney-client privilege may be raised

as a justifiable defense or reason for failing to report suspected elder abuse or

neglect or for testifying as required by this chapter.

[NCA 92–141, § 112, approved Nov. 4, 1992.]

Library References

Indians O520(1).

Protection of Endangered Persons O9.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 151 to 179.

§ 3–113. Criminal investigation

The investigation and other procedures allowed by this chapter may continue

even if an investigation for the purpose of filing criminal charges is undertaken.

[NCA 92–141, § 113, approved Nov. 4, 1992.]

§ 3–114. Elder protective services and elder protective placement; other

services; evaluation procedure; duty to pay

A. Protective services or protective placement are provided either on a

voluntary or involuntary basis. Such services or placement may be provided

on a voluntary basis by the Muscogee (Creek) Nation Children and Family

Services when requested by any abused or neglected elder and the elder is

found by the Muscogee (Creek) Nation Children and Family Services Administration to be in need of such services or placement. Such services or placement shall be provided on an involuntary basis by the Muscogee (Creek) Nation

Children and Family Services Administration only if the Tribal District Court

determines they are necessary. Such services or placement shall be provided

on an emergency basis (or, if necessary, on a permanent basis through a

guardian appointed pursuant to Tribal law) and shall be provided in a manner

least restrictive of the elder’s liberty and rights consistent with the elder’s

welfare and needs. The Tribal District Court determination of the degree of

incapacity, if any, as well as whether elder abuse or neglect has occurred is the

standard the Muscogee (Creek) Nation Children and Family Services Administration shall use to develop a plan for the delivery of elder protection services.

B. Voluntary protective services or protective placement are provided subject to available appropriations and resources and only as determined necessary by the Muscogee (Creek) Nation Children and Family Services Administration. If the elder’s consent to such services or placement is withdrawn, they

shall cease. Such protective services or protective placement shall be provided

for a period of no more than one (1) month at a time. At the end of each

period, the Muscogee (Creek) Nation Children and Family Services shall

421

Title 20, § 3–114

ELDERLY SERVICES

reassess the elder’s needs before agreeing to continue providing services and

placement. Voluntary placement shall not be continued with a court order

permitting continued voluntary placement after the elder has been in such

placement for twelve (12) months.

C. Involuntary protective services or protective placement shall be provided

to any elder who is incapacitated or who is abused or neglected and incapacitated and only upon order of the Tribal District Court as required by this

chapter.

D. Services as determined necessary by Children and Family Services may

be delivered to the elder’s family or caretaker in order to protect the elder.

E. The Muscogee (Creek) Nation Children and Family Services shall establish a process for conducting a comprehensive, physical, mental and social

assessment, evaluation study of an elder when a petition for a protection order

has been filed.

F. The elder, and, where appropriate, the elder’s family and caretaker shall

be informed by Children and Family Services of rights as allowed under this

code and other Tribal law, including the right to refuse voluntary services and

placement and the right to have the Tribal District Court determine the

necessity of involuntary services and placement.

G. The elder (and where appropriate, the elder’s family and caretaker), if

able to do so, shall pay for all or part of the costs of services or placement

provided to the elder. In the case of voluntary services or placement, the elder

(and where appropriate, the elder’s family and caretaker) shall pay the cost.

[NCA 92–141, § 114, approved Nov. 4, 1992.]

Library References

Indians O126.

Protection of Endangered Persons O14, 15.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53.

§ 3–115. Emergency

A. The Tribal District Court shall issue an emergency protection order

authorizing protective services or protective placement on an emergency basis

upon petition supported by clear and convincing evidence that:

1.

an elder is at risk of immediate (physical) harm;

2.

an elder is incapacitated and cannot consent to protective services

3. no one is authorized by law or court order to give consent on an

emergency basis; and,

4.

an emergency exists.

B.

The emergency protection order shall:

1. set out the specific emergency services to be provided to the elder to

remove the conditions creating the emergency;

2.

provide only those services which will remove the emergency;

3.

allow protective placement only if the evidence shows that it is necessary;

4.

designate the agency required to implement the order;

422

Title 20, § 3–116

PROTECTION OF TRIBAL ELDERS

5. be issued for a maximum of seventy-two (72) hours and may be renewed

only once for a maximum of seventy-two (72) hours provided the evidence

shows that the emergency is continuing.

C. The Tribal District Court may authorize forcible entry by Lighthorse

Administration enforcement to enforce the emergency protection order after it

has been shown that attempts to gain voluntary access to the elder have failed.

D. The petition for an emergency protection order shall contain the name,

and interest of the petitioner; the name, address, location, and condition of the

elder; the nature of the emergency; the nature of the elder’s incapacity; the

proposed protective services, and where applicable, protective placement; the

attempts, if any to secure the elder’s consent to services; any other facts the

petitioner believes will assist the Court.

E. The Tribal District Court shall hold a hearing on a petition to provide

protective services or placement to an elder within seventy-two (72) hours after

an emergency protection order is issued, weekends and holidays excluded.

F. An emergency protection order can be set aside by the Tribal District

Court upon a petition of any party showing good cause.

G. If there is good cause to believe that an emergency exists and that an

elder is at risk of immediate and irreparable harm and, based on personal

observation, an investigator or a law enforcement officer believes that the elder

will be irreparably harmed during the time an emergency protection order is

secured, the investigator or law enforcement officer shall immediately protect

the elder, including, where necessary, transporting the elder for medical

treatment or to an appropriate facility. Immediately after the elder is protected, a petition for an emergency protection order shall be filed and the procedures set out in this section followed.

H. Any person who acts in good faith pursuant to this section is immune

from any civil or criminal suit based on that person’s actions.

[NCA 92–141, § 115, approved Nov. 4, 1992.]

Library References

Indians O126.

Protection of Endangered Persons O14.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53.

§ 3–116. Rights of elders, their families and caretakers

A. An elder, the elder’s family and caretaker shall be informed about an

elder abuse investigation before it begins unless an emergency exists, in which

case, they shall be informed as soon as possible, but no later than seventy-two

(72) hours after the investigation begins.

B. An elder may refuse to accept elder protection services even if there is

good cause to believe that the elder has been or is being abused provided that

the elder is able to care for himself/herself and/or has the capacity to understand the nature of the services offered.

C. The elder’s family or caretaker may refuse for themselves, but not for the

elder, elder protection services offered pursuant to this chapter.

D. An elder, the elder’s family or caretaker may refuse to allow an investigator into their home and the investigator shall so inform the elder, the elder’s

423

Title 20, § 3–116

ELDERLY SERVICES

family and caretaker of this right and the right of the investigator to seek a

warrant before seeking entry.

E. The investigator shall inform the elder’s family and caretaker of their

rights as allowed by the Indian Civil Rights Act, whenever it appears that the

investigation may lead to criminal charges being filed under the Muscogee

(Creek) Nation Criminal Code.

F. The elder, elder’s family and caretaker shall be served personally with a

petition filed pursuant to this chapter.

G. The elder, elder’s family and caretaker have the right to attend any

proceeding pertaining to the determination of the elder’s capacity and the elder

shall be present at all proceedings unless the Tribal District Court determines

the elder’s health would be at risk at such proceeding.

H. The elder, elder’s family and caretaker have the right to be represented

by counsel at all proceedings (at their own expense, unless provided for in other

codes or laws).

I. The elder, elder’s family and caretaker have the right to seek independent

medical, psychological, or psychiatric evaluation of the elder (at their own

expense).

[NCA 92–141, § 116, approved Nov. 4, 1992.]

§ 3–117. Procedures for determining incapacity, abuse or neglect

The Tribal District Court shall determine whether an elder is incapacitated

and the degree of incapacity, and, where necessary, whether elder abuse or

neglect has occurred. The determination shall be made only after petition,

notice, hearing, and proof that is clear and convincing.

[NCA 92–141, § 117, approved Nov. 4, 1992.]

Library References

Indians O126, 510, 511, 519, 520(4).

Protection of Endangered Persons O5 to 8.

Westlaw Topic Nos. 209, 315P.

C.J.S. Indians §§ 46 to 50, 53, 151 to 179.

§ 3–118. Confidentiality of reporter, records, hearings; penalty for not

complying with confidentiality

A. The name of a reporter who reports abuse or neglect as required by this

code is confidential and shall not be released to any person unless the reporter

consents to the release or release is ordered by the Tribal District Court. The

Tribal District Court may release the reporter’s name only after notice to the

reporter is given, a closed evidentiary hearing is held, and the need to protect

the elder is found to be greater than the reporter’s right to confidentiality. The

reporter’s name shall be released only to the extent determined necessary to

protect the elder.

B. Records of an investigation of elder abuse or of a Tribal District Court

hearing regarding elder abuse are confidential. Such records shall be open

only to the elder and the elder’s family and caretaker (unless the family or

caretaker is the suspected abuser), employees of the Muscogee (Creek) Nation

Children and Family Services Administration, Lighthorse Administration, Trib424

Title 20, § 3–119

PROTECTION OF TRIBAL ELDERS

al District Court officials, coroner or medical examiner who has reason to

believe that an elder died as the result of abuse or neglect, and any other person

who the Tribal District Court determines has reasonable cause to have access to

such record.

C. A proceeding held pursuant to this chapter shall be closed and confidential. Persons who may attend are the elder, the elder’s family and caretaker,

the person or representative of an institution or agency accused of elder abuse,

the representative of the Muscogee (Creek) Nation Children and Family Services Administration, necessary Tribal District Court officials and attorneys for

the parties. Other persons may appear only to testify. No one attending or

testifying at such a proceeding shall reveal information about the proceeding

unless ordered to do so by Tribal District Court order.

D. Any person who violates any subsection of this section shall be subject to

a civil penalty of up to five hundred dollars ($500.00) (or any penalty set by

Tribal District Court) per occurrence (and, if a Tribal employee, to appropriate

disciplinary action as allowed by the Tribal personnel policies and procedures).

The penalty shall be assessed by the Tribal District Court after petition, notice,

opportunity to be heard, and a determination that a violation occurred.

[NCA 92–141, § 118, approved Nov. 4, 1992.]

§ 3–119. Elder protection order; time limits

If the Tribal District Court determines that an elder is incapacitated and

abused or neglected, the Court shall issue an elder protection order which

provides appropriate protection for the elder. Such protection may include,

but is not limited, to the following:

A. Removing the elder from the place where the abuse or neglect has taken

or is taking place;

B. Removing the person who has abused or neglected an elder from the

elder’s home;

C. Restraining the person who has abused or neglected an elder from

continuing such acts;

D. Requiring an elder’s family or caretaker or any other person with a

fiduciary duty to the elder to account for the elder’s funds and property;

E. Requiring any person who has abused or neglected an elder to pay

restitution to the elder for damages resulting from that person’s wrongdoing.

F.

Appointing a representative, guardian ad litem for the elder;

G.

Recommending that a representative payee be named; and,

H. Ordering the Muscogee (Creek) Nation Children and Family Services

Administration to prepare a plan for and deliver elder protection services which

provide the least restrictive alternatives for services, care, treatment, or placement consistent with the elder’s needs.

[NCA 92–141, § 119, approved Nov. 4, 1992.]

Library References

Indians O126, 534.

Protection of Endangered Persons O72, 79.

425

Title 20, § 3–119

ELDERLY SERVICES

Westlaw Topic Nos. 209, 315P.

C.J.S. Breach of the Peace § 18.

C.J.S. Domestic Abuse and Violence §§ 3 to 4,

7 to 11, 15 to 19, 21 to 22, 37 to 38.

C.J.S. Indians §§ 46 to 50, 53, 151 to 179.

§ 3–120. Term of protective order

A. An elder protection order shall be issued for a period not to exceed 12

months.

B. The order may be extended as many times as necessary to protect the

elder, but only after petition is filed by the party seeking an extension and

notice, opportunity for hearing, and a determination based on clear and

convincing proof that such an extension is necessary for the protection of the

elder. Each extension shall be for a period not to exceed twelve (12) months.

[NCA 92–141, § 120, approved Nov. 4, 1992.]

Library References

Indians O126.

Protection of Endangered Persons O79, 82.

Westlaw Topic Nos. 209, 315P.

C.J.S. Breach of the Peace §§ 18, 24 to 28, 32

to 38.

C.J.S. Domestic Abuse and Violence §§ 2 to 4,

7 to 34, 36 to 45.

C.J.S. Indians §§ 46 to 50, 53.

§ 3–121. Petition; hearing

A. The Attorney General shall file petitions and present facts on behalf of the

Tribe for legal proceedings authorized or required by this chapter.

B. A hearing on a petition authorized or required by this chapter shall be

conducted with the purpose of protecting the elder only where necessary and

only to the extent shown by the facts and using the least restrictive alternatives.

All rights as set out specifically in this chapter and in the Indian Civil Rights 1

Act shall be enforced strictly during proceedings. No hearing shall be held

unless notice has been given to the elder and other interested parties, including

the elder’s family and caretaker. The elder and all other interested parties

shall have the right and opportunity to be heard fully and to present evidence.

The MCN Tribal District Court shall issue a written statement of its findings in

support of any order allowed by this chapter.

[NCA 92–141, § 202, approved Nov. 4, 1992.]

1 25 U.S.C.A. § 1301 et seq.

426

CHAPTER 4.

AIR CONDITIONERS AND FANS

Section

4–101. Findings.

4–102. Eligibility guidelines.

4–103. Administration.

4–104. Reporting.

4–105. Title; insurance.

4–106. Preference of participants.

4–107. Inventory accountability.

§ 4–101. Findings

A. There exists a need to provide elderly Creek Tribal members air conditioners and fans for health promotion purposes.

B. Many Creek Tribal elders suffer from health conditions which predispose

them to heat related environmental hazards, including heat, chronic respiratory

disorders, allergies, and hypertension.

C. Hot weather is a major contributor of heat stroke among Tribal elders

and also complicates other disorders.

D. A program is needed to provide Creek Tribal elderly air conditioners and

box fans for cooling the interior living spaces of their homes.

E.

Funding for this project is available from Tribal bingo revenues.

[NCA 91–63, § 101, approved Aug. 5, 1991.]

§ 4–102. Eligibility guidelines

The eligibility guidelines for this project are as follows:

A. Applicant must verify Creek Tribal Enrollment i.e., Tribal Enrollment

Card.

B.

Applicant must reside within Creek Nation boundaries.

C. Applicant must present statements verifying household income. Income

must be within the following guidelines.

Household Size

1

2

3

4

5

6

Maximum Mo. Amount

$ 523

702

880

1,058

1,237

1,415

For each additional household member add one hundred seventy-nine dollars

($179).

D. First priority will be given to bedfast applicants, with the second priority

to the homebound, as determined by the community health representatives.

E.

Applicant must complete and sign an application.

[NCA 91–63, § 105, approved Aug. 5, 1991.]

427

Title 20, § 4–103

ELDERLY SERVICES

§ 4–103. Administration

Project administration shall be handled by the Community Health Representative program. CHR shall make all reasonable attempts to notify all eligible

participants, i.e. flyers, community meetings, newspapers, etc. to include date,

times and locations of application in-take as well as eligibility guidelines.

[NCA 91–63, § 106, approved Aug. 5, 1991.]

§ 4–104. Reporting

The CHR Manager shall prepare an annual report to the National Council by

September 1 of each year, which will include the present condition and storage

of all air conditioners.

[NCA 91–63, § 107, approved Aug. 5, 1991; amended by NCA 93–131, § 103, approved

Sept. 2, 1993.]

§ 4–105. Title; insurance

Title to air conditioners, box fans, and water coolers, shall remain in the

Muscogee (Creek) Nation and the user shall sign an agreement as to upkeep of

air conditioners and that the property shall not be sold or disposed. Insurance

policies of the Muscogee (Creek) Nation shall include coverage for all cooling

devices.

[NCA 91–63, § 108, approved Aug. 5, 1991.]

§ 4–106. Preference of participants

Participants shall be allowed to make the decision as to whether they would

prefer air conditioners, box fans, or water coolers, when considered.

[NCA 91–63, § 109, approved Aug. 5, 1991.]

§ 4–107. Inventory accountability

Muscogee (Creek) Nation Community Health Representatives (CHR) Manager shall be responsible for collection, inventory report, and warehousing for

future distribution and installation of adequate wiring and air conditioning unit

specified for this purpose.

[NCA 91–63, § 110, approved Aug. 5, 1991; amended by NCA 93–131, § 104, approved

Sept. 2, 1993.]

428