STATE POLICIES GOVERNING

ABUSE AND NEGLECT INVESTIGATIONS

I. INTRODUCTION

The purpose of this memorandum is to provide a detailed description of effective state statutes, regulations and policies governing investigations of abuse and neglect in facilities serving persons with developmental disabilities and mental illness. The analysis examines the process involved in designing and implementing such policies, and the P&A's role in this process. This memorandum is organized in two sections. The first section of the paper provides information on the process involved in obtaining legislative and administrative support to develop a state policy in this area, based on a review of existing policies in Texas, Maryland, Connecticut, Wyoming, Michigan, and Illinois. The second section provides an analysis regarding the design and implementation of these policies, based on a review of existing policies in Texas, Connecticut, Michigan, Kansas, New Jersey, North Dakota, and Illinois.

The P&A system's enabling laws authorize the investigation of abuse and neglect (A\N) based on reports of incidents or when there is probable cause to believe an incident may have occurred. ⁽¹⁾ P&As are not required to investigate every such incident, but must exercise discretion based on their priorities and other factors. Once such factor relates to the failure of other agencies within the state to adequately carry out their investigative responsibilities. P&As play a significant role in monitoring the activities of the state and facility investigators to ensure they adequately carry out their investigative responsibilities. This task is easier when there are in place detailed state standards for conducting investigations in facilities. Unfortunately, based on a preliminary review, it appears that a sizable number of states lack detailed mandates in this area. It is hoped that the information provided below will offer a framework for P&As to work towards developing proactive standards in their states regarding investigation requirements in a broad range of facilities, including state hospitals, ICFs, group homes, prisons, jails, juvenile detention centers and shelters.

II. ADVOCATING FOR CLEAR INVESTIGATORY STANDARDS

This next section summarizes the specific strategies used by P&As in Texas, Illinois, Connecticut, Michigan, Maryland, and Wyoming to promote the development of detailed state standards governing investigations of A/N. The strategies can be placed in three general categories: (1) collection of data, (2) promotion of policy reforms through enhanced public awareness, and (3) litigation.

A. The Advocacy, Inc. Campaign

In July 1995, Advocacy, Inc. (The Texas P&A) began a campaign to evaluate the performance of the state agencies responsible for investigating allegations of A/N in state facilities. This campaign was initiated due to a perception, by the P&A and consumers, that these agencies were not conducting adequate investigations, and, in fact, that a significant number of serious physical injuries were not even treated as abuse or neglect justifying an investigation. Although the initial focus of the campaign was on state hospitals, the subsequent recommendations have impacted all state facilities, community centers, private psychiatric facilities and ICF-MRs. The campaign involved five strategies: (1) data collection and systemic analysis; (2) direct case work; (3) negotiations with the investigatory agencies; (4) media relations; and (5) senate investigation.

Data Collection

The P&A began the campaign by requesting system data from the state investigatory agencies. The data collected included, among others, the following elements: the number of incidents system-wide and by facility (taking into account the average daily population); the outcome of the investigations; the characteristics of individuals involved in the incidents (employees and consumers); the time and location of incidents (by shift, location, ward and unit within the facility); the average number of days taken to complete the investigation system-wide and by facility; and the number of incidents, broken down by the outcome of the investigation (confirmed, unconfirmed, inconclusive or spurious.) To facilitate data collection, the P&A developed an open records request specific to abuse and neglect data. Next, Advocacy, Inc. contracted with a statistician to analyze data covering the period 1990 to 1995, for the entire system as well as for the individual state hospitals.

The P&A used the data to identify trends and patterns of abuse, and the causes of abuse and potential means of prevention. Several broad conclusions were reached in performing the data analysis, including: (1) data for state hospitals and state schools should be examined separately; (2) there was a high number of incidents in state schools which were not considered A/N and not investigated; and (3) trends and patterns should be examined overtime, within each hospital or school, and should take into account each facility's average daily population. Important considerations in analyzing the data focused on: (1) the method used to count group incidents; (2) the extent to which multiple abuses which occur within the same incident are counted; and (3) whether A/N allegations that are related to clinical judgement issues are referred to other systems, and if so, whether they are included in the data collected.

Upon completion of the data analysis, Advocacy, Inc. identified a number of problems with the state's investigatory process, including, among others: an extensive backlog of uncompleted cases opened for investigation; non-compliance with the time frame to complete investigations (this is significant because it is accepted that there is a correlation between the timeliness of the investigation and the confirmation of valid allegations); a general failure to require that the alleged perpetrator be separated from the alleged victim pending the outcome of the investigation; a failure to investigate altercations between clients (as potential neglect by staff) unless there was a violation of a specific order or treatment method (e.g., one-to-one supervision); failure to investigate injuries (including severe injuries), unless a physician identified the cause as A/N or someone other than the potential victim made a specific allegation. Advocacy, Inc. shared the results of the data analysis with state officials in order to obtain support for their campaign to improve state investigative procedures. The analysis was used later in the campaign, as well, to identify needed procedural changes designed to decrease incidents of A/N and improve investigations.

Direct Casework

The direct case work portion of the campaign began in mid-November 1995 and involved the P&A increasing its normal presence in the state hospital and soliciting cases by increasing the number of education and training sessions in the facilities and in the community. The focus of these efforts was to increase awareness of the consumer's right to a safe environment and to ensure consumers were aware of the procedures for reporting to investigatory agencies and the P&A. For example, information and training routinely focused on such issues as what incidents constitute "abuse," the right of consumers to make anonymous and confidential reports, and to be free from retaliation. P&A staff reviewed injury reports to identify possible incidents of A/N, and to target specific hospital wards for education and training. Due to the focus on this campaign, the P&A staff were unable to address, to the same extent, complaints within other priority areas. Advocacy, Inc. received support from its PAIMI Advisory Council, its board and other advocacy organizations.

A decision was made that the P&A would not fully investigate the allegations, given that the P&A did not have adequate staff, time, or expertise to do so. Further, the P&A did not want to compromise the investigation being performed by the state. Instead, staff monitored the state's investigations in order to gain first hand knowledge of their effectiveness and to identify procedures that need improvement. Monitoring was completed by reviewing injury reports to identify patterns of abuse, and by P&A staff "shadowing" the state agency investigations.

Advocacy, Inc. developed a statement of criteria and a protocol to use in determining which agency investigations to shadow. In addition to the protocol, staff were provided with a list of specific tasks to perform when shadowing an investigation, including, among others: creating a list of relevant physical evidence and potential witnesses, checking to see if law enforcement was contacted and what was done to protect the victim. Also, staff shadowing investigations were instructed to focus on the quality of the investigation, and treatment and safety issues concerning the victim. The P&A initiated its own investigation only at times when the shadower felt evidence was overlooked or the quality of the investigation was questionable. Shadowers were instructed to assume that all residents had the capacity to consent to the investigation being shadowed, unless it was determined otherwise by a court.

The information obtained by the P&A through individual case representation was analyzed and used to identify needed procedural changes designed to decrease incidents of A/N and improve investigations. The findings very much mirrored the findings generated by the data collection analysis. Specifically, the individual cases illustrated a compelling need for: systemic advocacy efforts with regard to client safety; counseling/debriefing of the alleged victim, regardless of the outcome of the investigation; and investigations of injuries regardless of the identity of the alleged perpetrator.

Negotiations with Investigatory Agencies

Armed with this systemic data, Advocacy, Inc. entered negotiations with the agencies, demanding that specific improvements be made to the investigatory process. By January 1996, the negotiations had ended without appreciable progress.

Creating Media Awareness

In an attempt to force procedural change, the P&A shared with the local newspaper its findings regarding the trends and patterns of abuse allegations and investigations in state facilities. An article on the subject was published in the local paper on January 25, 1996. That same day, the Governor of Texas called for a senate committee investigation into the state agencies' system for investigating allegations of abuse and neglect.

Senate Investigation

A senate committee investigation was initiated on February 9, 1996. The investigation involved Advocacy, Inc. and the state reporting agencies working together to address the P&A's findings and to eliminate incidents of A/N. The P&A and the state agencies reported to the committee every two months, and by the end of March 1996, the committee found that important outcomes had already been achieved. The most ongoing improvement, as a result of the investigation, was the development of a work group comprised of representatives from the two Texas agencies responsible for investigating allegations of A/N in facilities as well as representatives from the P&A staff who monitor these investigations. This workgroup meets regularly to identify and resolve issues. Some of the issues already addressed include: adoption by the state investigatory agency of a policy to decrease serious physical injuries in facilities by at least 10% in the next fiscal year; and creation by the two state investigatory agencies of a consistent, comparable system of data collection used during investigations.

B. The Illinois Abuse Monitoring Project

Equip for Equality (the Illinois P&A) also used a process of collecting data and creating legislative awareness to bring about improvements in investigatory policy. Equip for Equality used a private grant to finance the campaign, illustrating the role the private sector can play in achieving reforms within state government.

Data Collection

Equip for Equality obtained and informally reviewed select investigative reports and investigative files prepared by the office of inspector general and found inadequate investigatory practices and a lack of legislative and executive oversight and monitoring. The P&A applied for and received private funding from the Chicago Community Trust to underwrite a two year initiative to improve the state system for investigating abuse and neglect.

In designing the Project, Equip for Equality had made a commitment to use a standardized instrument and methodology that could be applied to analyze investigative files. This process has resulted in findings which are objective and measurable, so that evaluation outcomes could be compared over time. The P&A contracted with a private consultant to design and field test an evaluation instrument. The evaluation tool was comprised of four sections: (1) collection of data regarding critical dates and times in relation to the incident; (2) assessment of the quality of the final investigative report; (3) assessment of the investigation itself and the preservation of physical evidence; and (4) evaluation of the process of interviewing and collecting documentary evidence.

Proposing Remedies & Demanding Change

In year one, the Project evaluated the quality of investigations performed at a handful of Chicago area institutions. At the end of one year, the P&A issued a report which documented problems and presented recommendations to remedy these problems. In year two, the Project performed similar investigations at the same institutions and compared those results to those obtained in the first year. The results of this comparison, along with recommendations for resolving continued problems, were issued in Equip for Equality's final report to the Illinois Department of Mental Health (DMH). In the report, the P&A calls on the DMH to develop and implement a detailed plan for improvement, and calls on the Governor to implement the recommendations in the report.

C. Connecticut Interagency Agreement

Since 1985, the Office of Protection and Advocacy for Handicapped and Developmental Disabled Persons (the Connecticut P&A) has operated an abuse investigation program pursuant to a state statute concerning A/N of adults with mental retardation. The design of the abuse investigation program, which is prescribed by these statutes, has impaired the P&A's ability to investigate alleged abuse. A few years ago, the P&A initiated a strategy to improve investigations. As a result, an interagency agreement was reached between all agencies with investigative responsibilities; the agreement requires the agencies to develop a more integrated, competent system for responding to and preventing abuse and neglect.

The Abuse Investigation Project is vested with the authority to investigate abuse and neglect of adults with mental retardation between the ages of 18-59, or cause these investigations to occur. Concerns about the propriety and practicality of the Department of Mental Retardation (DMR) investigating its own operations, led the P&A itself (instead of the DMR) routinely investigating all alleged A\N occurring in facilities. As a result the DMR became less efficient and concerned about their own efforts to conduct investigations. However, the P&A was quickly overwhelmed by the back log of cases that were on a waiting list to be investigated. Out of necessity, the P&A and the DMR informally agreed that the DMR would conduct its own investigations and would issue the investigative reports to the P&A for monitoring purposes (while reserving the right to conduct primary investigations with regard to any matter, in its discretion.) A few years ago, all involved investigative agencies formalized this system of cross-reporting and monitoring in an interagency agreement. The agreement also provided for the P&A to train service providers and the DMR in how to conduct investigations and provided for a five member investigation section of the P&A to analyze reporting data and other quality assurance data, and prepare reports on trends and persistent problems. Additionally, the agreement provided for: a computerized information management system for tracking all reports; creation of a data collection and retrieval system for major incidents, with cross-references regarding responsible parties; and appropriate referrals and follow-up with other agencies.

The practice of the P&A monitoring internal investigations has proven to offer significant advantages. For example, service system managers began to take increased ownership for remedying A/N problems their own staff identify. Also, the P&A has had more time and resources to investigate allegations of A/N. In fact, the P&A is exploring the idea of supporting some type of volunteer monitoring program that empowers families and community members to assume advocacy roles. Additionally, the Project issues regular reports to the state investigative agencies on selected issues related to the elimination of abuse and neglect in state and private facilities.

D. The Michigan Process

In the Spring of 1995, the state of Michigan began to develop a Medicaid managed care plan. This process led to state legislators re-examining existing mental health laws. A group of consumers with disabilities, and disability agencies, including the Michigan P&A, joined together to speak with state legislators and demand that the Michigan Mental Health Code be reformed at the same time the legislators were reviewing other health-related statutes pursuant to developing a Medicaid managed care plan. This group emphasized that current efforts to move people out of institutions and into the community will expand the number of facilities the state must monitor and that existing investigative requirements had to be amended to meet increased demand.

Improvements were achieved primarily in the area of dispute resolution. For example, Section 7A of the Michigan Mental Health Code requires that the state establish a 12 member state recipient right advisory committee. The committee, which is comprised of service providers, state agency representatives, recipients of services and their family members, will oversee and ensure the implementation of investigative procedures. The Code was also amended to include specific details for conducting investigations, for example, specific time frames for filing a rights complaint, specific requirements regarding the contents of an investigative report, and a requirement that the director of the facility where an incident occurs be required to take appropriate remedial action to prevent a recurrence of the rights violation.

E. The Maryland and Wyoming Approach

Protection and Advocacy Systems (the Wyoming P&A) filed a lawsuit in federal court (on behalf of several individuals with mental illness living in institutions and the Wyoming Alliance for the Mentally Ill) alleging that Wyoming's system of care for children and adults with serious mental illness is inadequate. The complaint called for resolution of a range of mental health issues but did not specifically demand a review of A/N investigative procedures. However, as a result of this litigation, the framework is now in place for the issue to be addressed through a judicially-created monitoring system. The parties to this case entered into a stipulation to form "The Partnership for the Resolution of Mental Health Issues in Wyoming." The Partnership has the authority to resolve contentions of the parties without formal judicial determination. The stipulation provided detailed statements of purpose and procedural rules for the Partnership and ordered all financing of the Partnership to be the obligation of the state. The Wyoming litigation strategy could be one method of compelling a review of procedures governing investigations of abuse and neglect.

Similarly, the Maryland Disability Law Center (the Maryland P&A) initiated litigation in the Circuit Court in Baltimore City, in MDLC v. Wasserman, alleging that Maryland's system of care for children and adults with serious mental illness is inadequate. The parties entered into a settlement agreement in order to avoid continued litigation. The agreement provides that a Quality Assurance consultant appointed by the parties be given 27 months to promulgate final regulations which incorporate procedures for reporting and investigating incidents of A/N. The agreement also requires that investigative agencies cooperate with the quality assurance investigator and develop an operations manual that will provide directions, time lines, standards and consistency for individuals surveying investigations of A/N. Although they have not yet been formally issued, regulations have been developed which provide detailed requirements for reporting and investigating alleged incidents of A/N in facilities.

III. DESIGNING AND IMPLEMENTING AN INVESTIGATORY POLICY

As noted above, the Abuse Monitoring Project conducted by Equip for Equality (the Illinois P&A) established an evaluation system that identifies four key components of an effective policy governing A/N investigations. These components relate to identification, reporting, investigation and prevention. The discussion below examines the issues that should be addressed by each of these components. The discussion incorporates elements from policies in Texas, North Dakota, Connecticut, Michigan, New Jersey, Kansas, and Illinois.

A. Identifying Abuse and Neglect

This first component of a policy governing A/N investigations involves defining the terms "abuse" and "neglect," and training staff and residents to identify and report incidents.

1. Definitions of Abuse and Neglect

(a) Definitions of abuse

A review of several statutory definitions of "abuse" reveal that these definitions vary widely in their scope. For example, the Connecticut Human Rights statute (Section 46a-11a(a)), covers only abuse perpetrated by caretakers. The statute defines abuse as: "the willful infliction of physical pain or injury or the willful deprivation by a caretaker of services which are necessary to the person's health or safety." The statute further defines who shall constitute a caretaker for purposes of this definition. However, like most statutes reviewed, the Connecticut definition of abuse leaves to interpretation such issues as which services are necessary for the person's health and safety, and whether exposure of a resident to abuse from another resident would constitute "willful deprivation of caretaker services."

Other statutes are written to clearly include all forms of abuse, including not just that perpetrated by a caretaker, but also client-on-client abuse. For example, the New Jersey Department of Human Services, Division of Developmental Disabilities (circular #14, on reporting unusual incidents in division funded agencies, issued December 20, 1995) defines "abuse" as "any act or omission that deprives an individual of his or her rights or which has the potential to cause or causes actual physical injury or emotional harm or distress." Another example of a broad reaching definition of abuse is in the Illinois Abused and Neglected Long Term Care Facility Residents Reporting Act (Sec. 210 ILCS 30/6/2) defines the term "abuse" as: "any physical injury, sexual abuse or mental injury inflicted on a resident other than by accidental means."

Many definitions of "abuse" provide specific examples of what actions or omissions shall constitute abuse for purposes of the statute. For instance, the North Dakota Committee on Protection and Advocacy definition (Sec. 25-01-3-01) of "abuse" specifically includes "offensive language," "failure to act," "sexual assault," "corporal punishment," and "unauthorized use of excessive force or bodily or chemical restraints." The Kansas statute specifically mentions "fiduciary abuse," among many other examples (see article 14 of the Kansas Code, Section 39-1430 (b)). The New Jersey Department of Human Services, Division of Developmental Disabilities policy (circular #14, on reporting unusual incidents in division funded agencies, issued December 20, 1995) offers examples of specific actions constituting abuse, as well as, specific examples of what actions shall not be considered abuse. The Texas Department of Protective and Rehabilitative Services Policy and Procedures for Conducting Investigations of Abuse and Neglect includes hypothetical examples designed to illustrate traditional forms of abuse as well as less obvious forms which are functional equivalents; the policy also distinguishes those incidents that might be confused with abuse but are not (for a complete set of examples see pages 11 and 12 of Chapter 710, Subchapter A, TDPRS Rule, which is attached to this memorandum.)

(b) Definitions of neglect

The definition of "neglect" for the DD and PAIMI programs covers, in brief, acts and omissions by individuals responsible for providing services in a facility, that caused or may have caused injury to an individual served. Every state definition reviewed measured "neglect" as a failure to provide appropriate services as required by each individual. These definitions imply that "neglect" shall be determined on a case-by-case basis. This definition of neglect has been broadened, in a few of the states reviewed, to cover not only acts or omissions of caretakers but also "the failure or omission of the self, or another person [not just caretakers] to provide goods or services which are necessary to ensure safety and well being" (see section 39.1430 of the Kansas statute for individuals with mental retardation). The Texas policy is also noteworthy because it provides specific examples of what acts or omissions shall and shall not be considered "neglect."

B. Reporting Abuse and Neglect

All of the statutes reviewed specify which individual(s) is required to report alleged A/N. Reporting requirements uniformly require all facility employees, and specified professionals and care givers (who may be independent of a facility) to report. The Connecticut general statute concerning adults with mental retardation provides a good example of the level of detail that can be used to clarify who is required to report alleged abuse. The statute (at section 46a-11b) requires the following individuals to make reports:

Any physician or surgeon licensed under the provisions of 270 or 371, any resident physician and intern in any hospital in this state, whether or not so licensed, any registered nurse, any person paid for caring for persons in any facility and any licensed practical nurse or medical examiner, dental hygienist, dentist, occupational therapist, osteopath, optometrist, chiropractor, psychologist, psychiatrist, social worker, school teacher, school principal, school guidance counselor, school para-professional, mental health professional, physician's assistant, Connecticut certified substance abuse counselor, Connecticut certified marital and family therapist, speech pathologist, clergyman, police officers, law enforcement, pharmacist, physical therapist, or sexual assault counselor or battered women counselor as defined in section 52-146k who has reasonable cause to suspect or believe that any mentally retarded person has been abused or neglected.

A reporting procedure could also allow for reporting to be done in alternative formats besides a written report (for example, orally or on tape). For instance, the Texas Department of Mental Health and Mental Retardation Regulation (at Section 404.5 (2)) states that: "If the person making the allegation is not an employee, e.g., a person receiving services, a guest etc., staff shall assist the individual in making the report, if necessary."

Other key features of reporting policies include a requirement that each facility inform residents and staff of their responsibility to report A/N and of the appropriate policies and procedures for reporting. Procedures should protect the therapist\patient and other privileges. Competent individuals should be allowed to instruct a mandated reporter not to report. The TDMHMR Regulation (at Section 404.14) includes a requirement for all facility staff to have thorough and periodic training on the definitions of A/N, the acts and signs of A\N, and the procedures for reporting.

Additionally, good procedures will ensure that reports can be received on a 24 hour basis. Chapter 404 Subchapter A of the TDMHMR regulations also: specifies the individual to receive reports (and requires that an agency be available to receive reports on a 24 hour basis); prescribes short time frames for reporting to state investigative agencies, law enforcement personnel, and family members; and establishes uniform penalties for failure to report an incident within the prescribed time frame. Section 39.1403 of the Kansas statute governing investigations of abuse of individuals with mental retardation states that:

Reports shall be made immediately . . . in any reasonable manner . . . during the normal working week days of and hours of operation of such departments ... [or] to law enforcement agencies during the time the departments are not open.

A good policy provides a specific time frame for notification of outside agencies and interested parties. For example, Section 330.1776-1778 of the Michigan Department of Community Health Code provides that:

Each rights complaint shall be recorded upon receipt of the office, and acknowledgment of the recording shall be sent along with a copy of the complaint to the complainant within five business days. Within five days after the receipt of the complaint, it shall notify the complainant if it determines that no investigation of the complaint is warranted.

Another important provision to include in reporting procedures is an assurance that the reporter of the incident will not face retribution for reporting or participating in the investigation or any subsequent proceeding. Such assurances should address immunity from liability, as well as sanctions available against an employer, and should protect the confidentiality of the reporter's identity. For example, Section 39-1403 of the Kansas statute governing investigations of abuse of individuals with mental retardation states that:

Anyone who testifies in any administrative or judicial proceeding arising from [a report of abuse] shall not be subject to any civil or criminal liability on account of such report, investigation or testimony, unless such person acted in bad faith or with malicious purpose. No employer shall terminate the employment or prevent or impair the practice or occupation or impose any other sanction on any employee solely for the reason that such employee made or caused to be made a report.

It is also advisable for reporting provisions to specifically require all deaths in facilities to be reported. Deaths may in some cases be a result of abuse or neglect. The fact that a death resulted from abuse or neglect may not become apparent without an investigation into the care provided to the individual in the months prior to his or her death. In the absence of a requirement to report all deaths in facilities, it is possible that deaths resulting from A/N would not come to the attention of state investigators and would not be recognized as A/N.

C. Investigating Abuse and Neglect

Effective investigative components identified include: time frames for completing investigations; investigators who are independent of the facility where the alleged incident occurred; a requirement that all allegations to be investigated (instead of only investigating at the discretion of a facility administrator); and detailed instructions for gathering evidence and completing a final investigative report. Provided below, are examples of some effective investigatory procedures, as identified from a limited review of state investigatory policies:

Most procedures provide a specific time frame within which a report of alleged A/N and an investigation of the report must be initiated and completed (this is important, given that a delayed investigation may result in lost physical evidence or witnesses unavailability). Investigators might also be required to conduct a face-to-face interview with the alleged victim because, such an interview would promote the discovery of physical evidence of A/N. A good example is the Texas Department of Protective and Regulatory Services Rules, Section 710.7. The rule states:

The [investigator] shall begin an investigation within 24 hours of receiving an allegation by interviewing either the person served, alleged perpetrator, or any collateral witness. When there is an allegation of sexual abuse or physical injury, the investigator must make a face-to-face contact with either the person served, alleged perpetrator or a collateral witness within 24 hours.

Additionally, a policy might provide detailed guidelines on how to complete each requirement of the investigation process. Again, the Texas policy is a good example because the procedure details how to conduct an investigation, explaining, for instance, where and how to conduct interviews, how to establish a chain of custody, how to conduct a physical examination. For the specific language, see pages 2-8 of the Texas Department of Protective and Regulatory Services: Procedures and Techniques for Investigating Abuse and Neglect for the TDMHMR (an attachment to the TDPRS Policy on abuse and neglect investigations.)

Detailed guidelines on how to complete a final investigative report will ensure uniformity, which is essential for collecting data on trends in abuse and neglect. Some common report requirements, of those statutes reviewed, include: a summary of the allegation, specifics as to what evidence must be obtained and how it should be obtained, and an explanation of how evidence should be summarized and evaluated. A good example of procedures for evaluating evidence and reaching a conclusion as to whether A/N occurred can be found on pages 9 and 10 of The Texas Department of Protective and Regulatory Services: Procedures and Techniques for Investigating Abuse and Neglect for the TDMHMR (attached.)

A key component to include in investigatory procedure is information on how the final report may be used after the investigation is completed. Procedures might allow for the final investigative report to be used as evidence in disciplinary hearings of staff, for example. Or, investigative reports may be provided to law enforcement officials for use in prosecuting alleged offenders. Some states which maintain a registry of convicted abusers, for human service agencies to consult prior to hiring, might be provided access to some portions of a final investigative report for use in maintaining such a registry. Still other states might wish to use portions of the investigative report to maintain a public log (protecting names of individuals involved and other confidential information) of all reports and complaints of alleged A/N and the status and outcome of each complaint reported.

Another important provision to include in an investigative policy relates to protections, during the course of the investigation, for an individual alleged to be subject to A/N. Relevant requirements might include the immediate removal of incompetent persons if there is reasonable cause to believe he or she is in an abusive relationship. Further, the investigatory agency might be required to secure protective services, during the course of the investigation, for the individual alleged to be subject to A\N. A good example is the Kansas statute pertaining to investigations of abuse of persons with mental retardation. The statute requires the provision of appropriate protective services and provides for a routine evaluation of these services. Section 39.1410 of the statute states that:

Subsequent to the authorization for the provision of necessary protective services [for the individual alleging abuse], the secretary of social and rehabilitation services shall initiate a review of each case within 45 days [during the course of an investigation], to determine whether continuation of, or modification in, the services provided is warranted.

D. Preventing Abuse and Neglect

Collection and analysis of data on A/N is the primary form of prevention reflected in the states reviewed. For example, the Texas Department of Protective and Regulatory Services: Procedures and Techniques for Investigating Abuse and Neglect (attached) includes a checklist to assist the reviewer to identify patterns or trends in abuse that might be remedied by legal, administrative or other appropriate action. The Texas checklist includes questions relating to the following issues: whether the perpetrator is a repeat offender; whether the abuse has been reported more than twice in the facility before; and whether the incident could have been better defused by the staff member.

Two other means of prevention reflected in statutes reviewed are (1) an affirmative requirement that the facility take prompt and consistent disciplinary action when a charge of A/N is confirmed by the investigator (in order to ensure consistency, a policy might address possible disciplinary action); and (2) a requirement for the state to provide information and education about laws governing abuse and neglect. The North Dakota Vulnerable Adult Protective Services statute is one of the few statutes, of those reviewed, with such a requirement: Section 50-25.2-13 states that:

The Department [of Human Services] in cooperation with the county social service boards and law enforcement agencies, shall conduct a public information and education program [to] . . . inform the public regarding the laws governing abuse and neglect of vulnerable adults and the voluntary reporting authorized by the chapter and the need for adult protective services; and provide care givers with information regarding services to alleviate the emotional, psychological, physical or financial stress associated with the care giver and vulnerable adult relationship.

IV. CONCLUSION

This memorandum is intended to assist P&As to review the investigatory policies and practices in their states and identify problem areas that may be addressed in collaboration with state investigatory agencies, consumer groups, the media and the state legislature, as appropriate. The P&A experiences and exemplary provisions provide a framework for P&As toward this end. The many P&As working to improve their state policies and implementation of these policies are a resource for other P&As with the same goal.

1. ¹ See DD Act, 42 U.S.C. 6042(a)(2)(B); PAIMI Act, 42 U.S.C. 10805(a)(1)(A).

The terms "abuse" and "neglect" are defined in the PAIMI Act (at 42 U.S.C. 10802) and in the regulations implementing the DD Act (at 61 Fed. Reg. 51155-56, to be codified at 42 CFR 1386.19). As defined in the DD Act, "abuse" refers to any act or failure to act by an employee of a facility rendering care or treatment which was performed, or which was failed to be performed, knowingly, recklessly or intentionally and which caused, or may have caused, injury to a person with Developmental Disabilities, and includes specified acts. "Neglect" refers to a negligent act or omission by an individual responsible for providing services in a facility rendering care or treatment which caused, or may have caused, injury to an individual served or which placed an individual at risk of injury, and includes an act or omission such as the failure to carry out an appropriate individual program plan or treatment plan, failure to provide adequate nutrition, clothing or health care or the failure to provide a safe environment.