HB 4084 came to the 2012 legislature as the product of the Elder Abuse Work Group that had met during the interim to discuss issues of crimes against elderly Oregonians and how we might amend the law to better protect this population. While many interests were well represented in the Work Group, including long-term care providers, law enforcement, community banks, and the state agency for human services, the group developed its recommendations without consideration of either a criminal defense or a privacy rights perspective. The result was a bill that significantly compromised the rights of Oregonians in both areas.
Most concerning from the ACLU’s perspective are the changes the bill made to the authority of law enforcement officers to access the most personal documents of persons 65 and older. Where the existing law allowed for law enforcement to access private financial records or protected health information of a person without his or her consent, the law still required judicial oversight and a means of notice to that person. HB 4084 eliminates these critical safeguards. The bill says that, upon notice to a health care provider of an elder abuse investigation, the provider must hand over protected health information of an alleged victim of abuse and also consult with the law enforcement officer about these records. No notice to the patient is required, no showing of probable cause, no articulation of urgency. Last minute amendments to the bill inserted the requirement that, when accessing private financial information, a law enforcement officer must first obtain a subpoena from a grand jury or a judge, but the bill removes the provision in current law that requires notice to the account holder before the access.
HB 4084 implicates core protections against government intrusion and the role of the judiciary to provide meaningful oversight and safeguards. Several legislators expressed severe reservations about the new and unchecked access to records awarded to law enforcement officers in this bill. In the rush of the one-month session, however, these concerns were set aside so as to enable legislators to claim a win on elder abuse in this election year. We received assurances from a handful of legislators that work will be done in the interim to prepare fixes to this legislation for the next session and we will be working hard in the coming months to hold them accountable to this promise.
Vote: 59-1 (House; Barnhart voting no); 27-2, 1 excused (Senate; Shields and George voting no)