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Reporting Abuse and Neglect of Adults with Disabilities

ILLINOIS DEPARTMENT OF HUMAN SERVICES

OFFICE OF THE INSPECTOR GENERAL
 

Rod R. Blagojevich, Governor

Carol L. Adams, Ph.D., Secretary

Sydney R. Roberts, J.D., Inspector General


July 15, 2005


State Operated Facility, Training Coordinators

Community Agency, Executive Directors


RE: Reporting Abuse and Neglect of Adults with Disabilities


Dear Colleagues:


The Office of the Inspector General (OIG) has developed this handbook to address frequently asked questions relating to reporting abuse and neglect. We strongly believe that one of the best ways of preventing abuse and neglect is to ensure that persons in the position of caring for disabled individuals know what to report, when to report, and how to report. Accordingly, we request that you to share this handbook with all members of your staff and encourage them to become familiar with its contents.

Thank you for your time and attention to this matter.


Sincerely,

Sydney Roberts, J.D.

Inspector General


 

TABLE OF CONTENTS

Role of OIG

Reportable to OIG

Abuse/Neglect Reporting

Initial Response to Abuse/Neglect

Duties After Reporting

Duties After Case Completion

Nurse Aide Registry

Written Responses

Other Issues


OFFICE OF THE INSPECTOR GENERAL

REPORTING ABUSE AND NEGLECT OF ADULTS WITH DISABILITIES

Role of OIG

What is OIG?

The Office of the Inspector General (OIG) is the only investigative entity within the Department of Human Services that is empowered by state law to investigate alleged abuse and neglect of individuals receiving services in programs operated, licensed or funded by the Department for developmental disability or mental health services (210 ILCS 30/6 ff.) and alleged abuse, neglect, and exploitation of adults with mental or physical disabilities in their homes (20 ILCS 2435/1 ff.).

Where are OIG offices located?

OIG investigators are located throughout the state. Currently, OIG has offices in Anna, Chester, Centralia, Alton, Jacksonville, Springfield, Normal, Kankakee, Chicago, Tinley Park, Hines, Waukegan, Elgin, and Rockford. OIG divides the state geographically into four bureaus: South, Central, North, and Metro (Chicago area). A fifth bureau investigates alleged domestic abuse of adults with disabilities.

How can OIG be reached?

All allegations should be reported to the OIG Hotline at 800-368-1463 (Voice and TTY). The fax number, which is to be used for follow-up documentation only, is (217) 786-2171.

What programs are required to report allegations of abuse/neglect to OIG?

State law and administrative rules require staff of programs operated, licensed, or funded by DHS for mental health or developmental disability services to report allegations of abuse/neglect and certain types of deaths to OIG. This includes staff of: State-operated mental health centers and developmental centers, CILAs (Community Integrated Living Arrangements), developmental training programs, and outpatient mental health services.

What domestic abuse/neglect allegations are in OIG's jurisdiction?

OIG is statutorily authorized to investigate alleged abuse, neglect, or exploitation of adults (persons 18 to 59 years of age) who have a mental or physical disability impairing the ability to seek help and who reside in a domestic living situation, such as private homes, unlicensed residential settings, and board and care homes.  OIG works in coordination with local and state law enforcement, DHS divisions, and other service providers to resolve issues leading to abuse, neglect, or exploitation.

What other services does OIG provide?

OIG is statuorily responsible for other functions:providing training in reporting and investigating allegations; conducting unannounced site visits to the State-operated facilities; reporting to the Department of Public Health's Nurse Aide Registry the names of employees substantiated to have committed physical abuse, sexual abuse, or egregious neglect; and following up on administrative actions implemented by facilities and community agencies in response to investigative findings.

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Reportable to OIG

What types of complaints need to be reported to OIG?
  • Physical Abuse: Physical harm to an individual caused by any non-accidental act or omission. (The harm does not have to be a visible injury.)
  • Sexual Abuse: Any act of sexual contact, sexual penetration, sexual coercion, or sexual exploitation of an individual. (Sexual behavior between an employee and an individual must be reported whether it is consensual or not.)
  • Mental Injury: Harm caused by an act or omission that precipitates emotional distress or maladaptive behavior in the individual, or could precipitate emotional distress or maladaptive behavior, including the use of words, signs, gestures or other actions toward or about and in the presence of individuals. (Since this includes what "could" precipitate a reaction, alleged mental injury is reportable even if the individual does not appear to respond to the act or omission.)
  • Neglect: The failure to provide adequate medical or personal care or maintenance, which failure results in a physical or mental injury or in the deterioration of an individual's physical or mental condition. (Domestic neglect allegations do not require any specific harm.)
  • Exploitation: Illegal use of the assets or resources of an adult with disabilities (This applies to domestic abuse allegations only).
What are the requirements for reporting deaths?

Deaths that must be reported to OIG are as follows:

  • Deaths occurring on-site in any residential or non-residential program;
  • Deaths within 14 days of discharge or transfer from a residential program; and
  • Deaths within 24 hours after deflection from a residential program.

A death must be reported to OIG within 24 hours of the staff becoming aware of it.  If the death is suspected to be the result of abuse or neglect by staff, however, the death must be reported within four hours.

What types of criminal activity must be reported to OIG?

Alleged criminal activity must be reported if abuse or neglect of an individual by an employee is involved or suspected. State employees must also report any alleged criminal activity, such as thefts of State property. OIG has a responsibility to report these to the Illinois State Police.

Should all medication errors be reported to OIG?

No. Report a medication error only when it results in the physical harm or mental deterioration of an individual.

Are suspicious injuries to an individual reported to OIG?

Yes, whenever an employee is suspected to have caused the injuries. The person calling OIG should state that abuse or neglect is suspected.

If OIG does not accept an allegation to investigate, what should be done?

OIG's decision not to investigate a complaint does not mean that nothing inappropriate occurred or that nothing should be done by administrators of the community agency or State-operated facility.  Rather, these administrators are responsible for following up matters when a complaint does not meet the statutory or regulatory definitions governing OIG.

What is the relationship between OIG and the State Police?

Allegations of crimes should be reported to the most appropriate law enforcement agency, especially if an immediate response is critical.  However, the allegation must still be reported to OIG within the time required, if it involves a death or alleged abuse or neglect of an individual with disabilities.

By law and interagency agreement, OIG reports criminal allegations to the Illinois State Police or local law enforcement. OIG also may work with law enforcement agencies in investigating allegations of abuse or neglect of individuals with disabilities. 

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Abuse/Neglect Reporting

What is the time requirement for reporting abuse or neglect to OIG?

An allegation must be reported to the OIG Hotline within four (4) hours after it was initially discovered by staff.  Even if a policy of the community agency or State-operated facility requires reporting through the chain of command, OIG must be called within four hours of the first staff becoming aware of the allegation.

How should reports be made to OIG?

Administrative Rule 50 does not prohibit State-operated facilities or community agencies from establishing internal reporting policies as long as the four (4) hour reporting requirement has been met.  Facilities and agencies are encouraged to use the time to obtain basic information about the allegation and the persons involved.

All reports made to OIG must be made by phone to the OIG Hotline (800-368-1463).  A facility or agency "OIG liaison" may be named to make reports, but anyone who suspects abuse or neglect may report an allegation.

Who MUST report allegations of abuse or neglect?

While anyone may report allegations to OIG, anyone employed by a community agency or State-operated facility is by law a "required reporter." The employee does not have to have first-hand information and does not have to believe the allegation. Instead, the law prohibits anyone from "screening" allegations; that is, no one may decide that an abuse/neglect allegation should not be reported.

Must required reporters report allegations that are clearly fabricated or made by habitual liars?

Yes. Individuals with mental disabilities may use unusual words or phrases to describe abuse or neglect.  If an individual makes an allegation that appears impossible to have occurred, it is appropriate to ask further questions to clarify what he or she is alleging. 

Past credibility is not relevant either; an individual who has repeatedly made unfounded allegations is at greater risk of being abused.  However, if an individual is merely repeating the same alleged incident, that incident does not need to be reported to OIG again. 

Repeated unfounded allegations by an individual, as with any frequent inappropriate behavior, may be addressed clinically.  However, care must be taken to avoid intimidation or punishment for alleging abuse or neglect.

What is the statute of limitations on allegations of abuse or neglect?

There is none.  OIG will accept allegations regardless of when they allegedly occurred, provided the location of the alleged abuse or neglect is within OIG's investigative jurisdiction.

How are callers making an allegation to the OIG Hotline protected?

The law protects anyone making an allegation in good faith from potential liability.  If someone providing information is harassed, threatened, or intimidated in any way, laws such as the federal Whistleblower Act may apply.

OIG keeps the names of all callers confidential, unless the caller is a "required reporter."  Any caller requesting to remain anonymous will not be named during the investigation or in the OIG case report as the caller.  However, if a case proceeds to criminal or administrative proceedings, it is likely that anonymity will be lost.

What information should be provided to OIG when making a report?
  • Information about the victim (birthdate, diagnosis, medications, etc.);
  • Information about the guardian, if any (name, address, phone);
  • Steps taken to ensure the safety/health of the individuals involved;
  • Information of potential witnesses (names, work schedule, phone numbers, etc.);
  • Information about the accused (name, work schedule, home address, etc.); and
  • Particulars about the alleged incident.
How does the OIG Hotline function outside of regular business hours?

Reports may be made to the OIG Hotline 24 hours per day, 7 days per week, 365 days per year.  Intake investigators cover the Hotline during regular business hours (8:15 a.m. to 4:45 p.m. daily, except weekends and holidays).

If a call is received outside of regular business hours or when all Intake investigators are busy, the call will be routed to a contractual agent of OIG. The contractual agent will take only basic information and then assess if potential imminent danger to individuals exists. If so, an OIG investigator will call back immediately. Otherwise, an Intake investigator will call back between 8:00 a.m. and 10:00 a.m. the next business day.

What requirements exist for notifying guardians?

OIG will notify the guardian of an allegation once it has been accepted by the Hotline.  OIG will later notify the guardian of the investigation's findings and rights to appeal the finding.  Thus, it is important that callers have the guardian's name and address when reporting an allegation.

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Initial Response to Abuse/Neglect

Who may take initial steps regarding an allegation of abuse or neglect?

All staff are responsible to ensure the safety and well-being of individuals under their care.  However, the State-operated facilities have designated staff who are specially trained and assigned to take initial investigative steps. Likewise, some community agencies have adopted the OIG Investigative Protocol for Community Agencies and have been approved by OIG, which involves training and designation of investigators.

In any case, OIG has the authority to instruct facility or agency staff to take specific actions, as well as to cease actions that may hinder investigation.

What initial steps can be taken before reporting an allegation to OIG?

The State-operated facility or community agency should take all actions necessary to ensure the safety and well-being of individuals and the preservation of evidence, including:

  • Conducting medical exams of the alleged victim(s);
  • Considering removing the accused from contact with any individuals;
  • Listing all persons present at the time, including visitors;
  • Gathering basic information necessary for reporting to OIG;
  • Separating witnesses before and during interviews; and
  • If so trained, collect and preserve evidence.

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Duties After Reporting

If an agency is requested to investigate, who may do the investigation?

A community agency will only be requested to investigate if it has first received authorization to investigate.  Authorization requires that the agency:

  • Obtained a copy of the OIG Investigative Protocol for Community Agencies (available at www.dhs.state.il.us/organization/Secretary/OIG/protocol02.asp );
  • Have at least one employee trained by OIG in Rule 50 and Basic Investigative Skills within the past three years;
  • Ensured that the employee(s) has no conflict of interest in investigating; 
  • Submitted an application to OIG requesting authorization and listing the trained investigator(s); and
  • Received written authorization by OIG to investigate.

Authorization is good for one fiscal year (July 1 through June 30). 

Facility staff are not allowed to take primary responsibility for an abuse or neglect investigation.  However, trained facility staff may be asked by OIG to assist with investigative activity.

What identification will an OIG investigator have?

All OIG investigators are assigned a numbered badge and photo identification card. Anyone who is approached by a person identifying him or herself as an OIG investigator has the right to request to see this identification.

Are employees required to fully cooperate with OIG Investigators?

Yes. Employees are required to cooperate completely and truthfully with OIG investigations. Failure to do so could result in discipline.

Will talking to OIG violate HIPAA laws?

No. The federal Health Insurance Portability and Accountability Act (HIPAA) has a clause exempting investigations from its restrictions.

How long does an OIG investigation take?

OIG makes every effort to have an investigative case report completed within 60 working days. However, delays in receiving medical reports, unavailability of witnesses, and other situations outside OIG's control may extend the time required for a thorough investigation.

What if law enforcement accepts an OIG case for investigation?

Usually, OIG and law enforcement work together on these cases. However, OIG conducts administrative investigations while law enforcement entities conduct criminal investigations, those where criminal charges may be filed.  So OIG and the law enforcement entity will proceed somewhat differently and will produce separate reports.

What should be in the case file if the agency is investigating?

Investigative case files must contain all relevant evidence and enough documentation to support the findings.  This includes interviews and a final investigative case report summarizing the evidence and clearly stating a conclusion.  If the report substantiates abuse/neglect or an administrative issue, the investigative case file should contain documents verifying implementation of actions listed in the Written Response.

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Duties After Case Completion

Who notifies the accused staff member of the investigative finding?

Once an investigation is complete, OIG will send a letter to the accused and the employer notifying them of the case finding. OIG may also notify the employer by phone; if so, the employer may notify the accused employee before that employee receives OIG's letter.

When can an accused employee on administrative leave be returned to work?

That is the employer's decision.

What is a "reconsideration request"?

The State-operated facility, community agency, accused employee, alleged victim, or anyone else affected by the outcome may ask OIG to reconsider the finding of an investigation. This request must be submitted in writing to OIG within fifteen (15) days of receiving the report or notification letter.  The request must clearly identify that it is asking for a "reconsideration."  By Rule 50, OIG may grant the request only if the request provides new information not contained in the investigation report and if that information could change the finding.

What happens if a reconsideration request is granted?

If OIG grants a reconsideration request, the investigative report will be carefully reviewed. OIG may re-open the investigation, potentially changing the finding, or simply revise the report to include the new information.

What is an "aggravating" or "mitigating" circumstance?

State law requires that, in each substantiated case, OIG indicates whether there are any "aggravating" or "mitigating" circumstances. 

  • An aggravating circumstance is any circumstance related to a finding of abuse or neglect that increases the severity of the act or omission of the employee or agency or facility that is beyond the essential components of a neglect or abuse finding. An example might be repeatedly kicking an individual or using a weapon. 
  • A mitigating circumstance is any circumstance that, although it does not change a finding of substantiated abuse or neglect, lessens the culpability or severity of the act or omission by the employee, facility or community agency. An example might be self-defense or being placed in a situation beyond the employee's training or ability.

OIG investigators look for aggravating or mitigating circumstances in every investigation, but the report identifies them only if the case is substantiated.

What is "egregious" neglect?

State law also requires OIG to determine in each substantiated neglect case whether the act or omission was "egregious."  Egregious means a substantive failure by an employee to provide adequate medical or personal care or maintenance that results in a death, serious medical condition, or serious deterioration of an individual's physical or mental condition, as determined by the Inspector General. 

What happens to the accused employee in a substantiated case?

OIG does not determine personnel action - it does not fire or discipline staff. The action taken would be decided by the employer and reviewed by the DHS program divisions.  However, if the findings is substantiated physical abuse, sexual abuse, or egregious neglect, OIG will refer the employee's name to the Nurse Aide Registry, unless the employee wins an administrative appeal.  Listing on the Registry effectively forces the termination of the direct care worker, since State law prohibits the State-operated facilities and community agencies from employing a person listed on the Registry (20 ILCS 1705/7.3).

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Nurse Aide Registry

What is the Nurse Aide Registry?

The Department of Public Health maintains a list of individuals who have been trained as nurse aides for hospitals, nursing homes, and other settings with medically involved persons. OIG is statutorily required, absent administrative appeals to the contrary, to report to this "Nurse Aide Registry" the name of any person who is substantiated to have committed physical abuse, sexual abuse, or egregious neglect in a program operated, licensed or funded by DHS to provide mental health or developmental services ("agency or facility"). Agencies and facilities may not report employee names to the Registry, but may search the Registry, such as for names of prospective employees. The Registry is available on-line at www.idph.state.il.us//nar/home.htm

What administrative appeals are available to prevent listing?

Any person whose name may be sent to the Registry has multiple opportunities to request review or appeal the referral, and each of these is described in letters OIG mails directly to the person. Initially, the person may request OIG "reconsider" the finding before finalizing the case; this reconsideration will be granted only if it presents facts or evidence not included in the investigation. After OIG finalizes the cases, the person may "appeal" OIG's decision to refer his or her name to the Registry or the agency's or facility's decision to take discipline. The person may also have appeal processes available through the Department of Public Health, where the Registry is located. Finally, the person may file a formal complaint through any grievance or civil service procedure. Again, OIG will send the person letters detailing the reconsideration and appeal processes.

When is someone's name referred to the Registry?

OIG only refers a person's name to the registry when three conditions are met. First, the person must be or have been employed by a program operated, licensed or funded by DHS to provide mental health or developmental disability services. Second, the person must be substantiated to have committed physical abuse, sexual abuse, or egregious neglect of an individual receiving services in that agency or facility. Third, the person must have exhausted all his or her appeal rights or the time frame for those appeals must have expired. 

How does someone get off the Registry once on it?

Once a year, a person listed on the Registry may file an appeal, requesting removal. The appeal must be sent to the DHS Bureau of Hearings and Appeals and provide evidence that the person has been rehabilitated and that it is now in the public interest to remove his or her name. OIG is mandated to conduct investigations and provide recommendations regarding the removal.

How often should an employer check the Nurse Aide Registry?

An employer must check prior to hiring a prospective employee and should consider checking periodically in the event that an employee has a secondary employer.

How can a background check be done on a prospective employee not listed?

The law's provisions mean that the Registry does not list persons who are substantiated to have committed mental abuse or non-egregious neglect. Further, as the appeal processes can be lengthy, a person may have been discharged by the community agency or State-operated facility but not yet be listed on the Registry. Thus, an agency or facility may know that a prospective employee was substantiated to have committed abuse or neglect, but the person is not listed. In such cases, the agency or facility may file a Freedom of Information Request for the case - it helps to have the OIG case number. The case report will have all names and other identifying information blacked out, but the agency or facility will thus know the actual finding in the case.

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Written Responses

What is a "Written Response"?

The law requires agencies and facilities to provide a:

  • "written response...that addresses in a concise and reasoned manner the actions that the agency or facility will take or has taken to protect the resident or patient from abuse or neglect, prevent reoccurrences, and eliminate problems identified..." (210 ILCS 30/6.2(c)).

OIG has developed a standard form for a Written Response, which the community agency or State-operated facility must complete and return to DHS's program divisions for review.

When is a Written Response required?

A Written Response is required whenever "abuse or neglect is substantiated or administrative action is recommended" (210 ILCS 30/6.2(c)). Therefore, in addition to whether the allegation was substantiated or not, an OIG investigative report may cite administrative issues - such as policy issues, procedural failures, structural problems, late reporting, or investigative improprieties. In all such cases, a Written Response is required.

What must a Written Response include?

The law specifies that the community agency or State-operated facility must include in the Written Response the actions they took or plan to take in order to protect individuals from abuse or neglect, to prevent recurrence, and to eliminate problems. However, for each action, the agency or facility must also include dates of implementation and completion. The Written Response form also requires the name of the administrative person responsible for implementation.

When is a Written Response due, and to whom is it to be sent?

OIG mails an initial Written Response form with the case report when appropriate, but requests that the agency or facility return the completed form to the relevant DHS program division (i.e., Division of Developmental Disabilities or Division of Mental Health). Those divisions are the Secretary's designee for reviewing and approving the actions the agency or facility listed in the Written Response. Written Responses are due within 30 days of the investigation's completion, unless a reconsideration has been granted - if requested but denied, the due date is 15 days after notification of the denial. Written Responses thus may be due before the actions identified are fully implemented.

To whom must documentation of actions taken be sent?

Since DHS' program divisions review Written Responses, the divisions frequently require clarification or documentation of actions taken. However, the law also mandates that OIG conduct a random review of completed actions in order to monitor compliance with the requirements, so OIG may also request documents. 

What are "implementation status reports" and when are they required?

Within thirty days of approval of a Written Response, the community agency or State-operated facility is required by law to submit an implementation report to OIG. If the actions are not completed, implementation status reports are required. That is, thirty days after approval and every sixty days thereafter until final completion, the agency or facility must send an updated implementation status report to OIG.

What happens during a Compliance Review?

OIG has created a standard protocol for Written Response Compliance Reviews. OIG conducts an initial review of the Written Response and documentation submitted. Then, OIG may contact the agency or facility to obtain further documentation, such as training records, revised policies, and verification of administrative action against an employee. The OIG staff conducting the compliance review may make a visit to the agency or facility to review documentation, interview staff, and observe operations. These visits are typically scheduled in advance with the authorized representative or OIG liaison. Upon completion of a review, OIG sends a letter to the authorized representative indicating whether the agency or facility is in compliance or not.

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Other Issues

What is the OIG Investigative Protocol for Community Agencies?

The administrative rule (Rule 50) allows OIG to delegate responsibility for investigations to community agencies.  However, the agency must first adopt OIG's investigative protocol and be authorized by OIG. The protocol is available on-line at www.dhs.state.il.us/organization/Secretary/OIG/protocol02.asp

How can an accused employee or a guardian get a copy of a case report?

Any person may request a copy of an OIG case report by submitting a Freedom of Information Act request (FOIA), but State law has three specific restrictions:

  • Only substantiated case reports may be released;
  • Reports may be released only after they are finalized; and
  • They may contain no personal identifying information.

So, released reports will have all names, birthdates, ages, addresses, job titles, and other such personal information blacked out.

What is an unannounced site visit?

The law creating OIG requires OIG to conduct annual site visits to each facility operated by DHS to provide mental health and developmental services. The law does not list specific expectations of the site visits, except that they be unannounced, but the scope of OIG's jurisdiction is the prevention of abuse and neglect. So, each fiscal year, OIG develops a site visit plan that identifies what issues relative to abuse and neglect prevention will be examined during the following year's site visits and how these issues will be reviewed. OIG conducts these unannounced site visit at each facility once per fiscal year and reports on the findings in OIG's Annual Report.

What training does OIG provide?

OIG currently conducts two training courses. The first is on Rule 50 (formally called 59 Illinois Administrative Code Chapter I, 50), the administrative regulation governing the reporting and investigating of allegations of abuse and neglect in programs operated, licensed or funded by DHS for mental health or developmental services. This training is aimed at training administrative staff at the agencies and facilities, so they are able to train their own staff. The second is a Basic Investigative Skills course, which covers the initial response to allegations, preserving evidence, securing the scene, taking statements, and interviewing.

How do agency/facility employees register for training?

A description of the trainings, a Training Calendar, and a link to the Registration Form are available on-line at www.dhs.state.il.us/organization/Secretary/OIG/tta.asp  While any staff of a community agency or State-operated facility may register for Rule 50 training, there are specific restrictions on who may register for the Basic Investigative Skills course. Contact OIG's Training Coordinators at the numbers listed on the Registration Form, should you have any questions.

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Elm City Center

An equal opportunity employer.

Revised - 6/9/2017