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
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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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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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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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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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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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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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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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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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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