Code of Massachusetts Regulations › 115 CMR - DEPARTMENT OF DEVELOPMENTAL SERVICES › Title 115 CMR 9.00 - Investigations And Reporting Responsibilities › Section 9.02 - Definitions

Current through Register 1525, July 5, 2024
For purposes of
				115 CMR 9.00 only, the
				following terms shall have the following meanings:
Abuse
means an act or omission of a
				provider that results in serious physical injury or serious emotional injury to
				an individual. However, no individual shall be considered to be abused for the
				sole reason that such individual is being furnished or relies upon treatment in
				accordance with the tenets and teachings of a church or religious denomination
				by a duly accredited practitioner thereof; nor for the sole reason that,
				consistent with the stated or implied wishes of a competent individual or a
				duly appointed representative of an incapacitated person, he or she is not
				receiving medical treatment or care.
Abuse
Per Se
means
				an act or omission of a provider that includes or results in the following,
				regardless of whether a serious physical injury or serious emotional injury is
				manifested:
(a) sexual abuse;
(b) the withholding of an individual's adaptive aids, provided
				that such withholding is unrelated to safety, care, or treatment. Examples of
				withholding of adaptive aids include, but are not limited to, prevention of
				access to and/or removal of the sole means of communication for an individual
				who is deaf, hard-of-hearing, or has communication deficits, or the prevention
				of access to and/or removal of the sole apparatus to assist mobility, in the
				case of an individual with a physical disability;
(c) a pattern of touching neither required nor appropriate for
				tending to the safety and welfare of an individual. For purposes of 115 CMR
				9.02:
Abuse
Per Se
(c) only, the term
				"pattern" shall mean "two or more separate instances of touching";
(d) the intentional, wanton, or reckless application of
				physical force in a manner that inflicts physical pain or serious emotional
				injury as determined by an evaluation of the totality of the circumstances. For
				the purposes of 115 CMR 9.02:
Abuse
Per
				Se
(d) only, when a person as a result of his or her
				disability is unable to express or demonstrate a serious emotional injury or a
				reaction to physical pain, the investigator may use the reasonable person
				standard solely for the purposes of evaluating whether the intentional, wanton,
				or reckless application of physical force inflicted physical pain or serious
				emotional injury. Using the reasonable person standard, the investigator
				determines whether, by a preponderance of the evidence, given the same set of
				factual circumstances, a reasonable person would have experienced physical pain
				or serious emotional injury. The term "reasonable person" shall mean "a person
				who in similar circumstances would exercise the qualities of attention,
				knowledge, intelligence and judgment which society requires of its members for
				the protection of him or herself and the interest of others".
Act
means an intentional, reckless,
				or negligent action regardless of whether the act is performed with intent to
				harm.
Administrative Review
means the
				process for resolving a complaint by the regional director or his or her
				designee as described in
				115 CMR
				9.11.
Assault
means to physically strike or
				attempt to physically strike.
Complainant
means any person who
				files a complaint under
				115 CMR 9.00 and/or M.G.L. c.
				19C.
Complaint
means an allegation
				communicated to the Department of an incident, condition or other occurrence
				which meets any of the criteria set forth in
				115
				CMR 9.05.
Complaint Resolution Team or CRT
means a group convened within each area and facility office that consists of
				Department personnel and citizen members and whose purpose is to review all
				complaints meeting the criteria set forth in
				115
				CMR 9.05 and develop action plans and
				resolution letters.
Day
means a business day.
DPPC
means the Disabled Persons
				Protection Commission.
Financial Exploitation
means the
				illegal or improper use of an individual's financial resources in an amount
				over $250 for personal profit or gain.
Frivolous
means utterly devoid of
				merit. All complaints filed pursuant to
				115 CMR 9.00 are presumptively
				non-frivolous unless the senior investigator determines the complaint
(a) involves matters not within the scope of 115 CMR;
(b) is clearly impossible on its face; or
(c) asserts similar allegations to a complaint previously filed
				concerning the same parties and allegedly occurring at approximately the same
				time, which was proven to be unsubstantiated.
General Counsel
means the person
				serving as chief legal counsel to the commissioner as set forth in M.G.L. c.
				19B, § 5.
Medico-legal Death
means:
(a) a death of any individual if the medical examiner takes
				jurisdiction;
(b) death that appears to have resulted from unusual or
				suspicious circumstances;
(c) death which may have been caused by violence, including
				sexual abuse; or
(d) any other death required by M.G.L. c. 38, § 6 to be
				reported to the medical examiner.
Omission
means a failure, whether
				intentional or not, to take action to protect an individual or to provide for
				an individual's daily living necessities including, but not limited to, failing
				to prevent another person from inflicting upon an individual any activity
				within the definition of abuse.
Party
means:
(a) the alleged victim and/or his or her guardian or legally
				authorized representative;
(b) the person or persons complained of or allegedly
				responsible for the incident, condition, or occurrence (the alleged
				abuser(s));
(c) the human rights committee of the provider agency serving
				the alleged victim; and, (d) the executive director or head of the provider
				agency serving the alleged victim.
Reportable Condition
means an
				incident, condition or occurrence of abuse, abuse
per se
,
				assault, sexual abuse, financial exploitation, mistreatment as defined by
				115 CMR 5.05:
Standards to Promote Dignity: Mistreatment
, or any incident,
				condition or occurrence that meets the criteria set forth in
				115
				CMR 9.05(1) through
				(3).
Serious Emotional Injury
means an
				injury to the intellectual functioning or emotional state of an individual
				caused by conduct that includes but is not limited to: coercion; harassment;
				the inappropriate isolation of an individual from family, friends, or regular
				activity; and verbal assault such as ridicule, intimidation, yelling or
				swearing. A serious emotional injury is evidenced by an observable and
				measurable reduction in the individual's ability to function from the
				individual's customary range of performance or customary behavior, such as, a
				state of anxiety, fear, depression, withdrawal, or the development of
				post-traumatic syndrome. The fact that the reduction in functioning does not
				extend for a particular period of time does not preclude a finding that a
				serious emotional injury has occurred; the length of time the reduction lasts
				must be evaluated in conjunction with the severity of the reduction in
				determining whether a serious emotional injury has occurred.
Serious Physical Injury
means a
				physical condition that includes, but is not limited to: death; brain damage;
				permanent disfigurement; any burn excluding sunburn of the first degree;
				fracture of any bone; subdural hematoma; intramuscular injury; bruising,
				abrasion, laceration or puncture of the skin; bleeding; impairment of a bodily
				system, function, limb or organ including human skin; bedsores or similar
				condition, or harmful symptoms resulting from the use of medication or
				chemicals improperly dispensed or without informed consent or appropriate
				authorization; or malnutrition or dehydration.
Serious Risk of Harm
means a
				significant exposure to serious physical or serious emotional injury.
Sexual Abuse
occurs when a provider
				forces, tricks, threatens, coerces, exploits or otherwise engages an individual
				or permits another person to force, trick, threaten, coerce, exploit, or
				otherwise engage an individual in an un-assented to sexual activity. Sexual
				activities may include but are not limited to unwanted or inappropriate
				touching, kissing, touching of the clothed or unclothed inner thigh, breast,
				groin, buttock, anus, pubes or genitalia; or any un-assented to sex act
				including but not limited to: sexual intercourse; sexually explicit
				photographing, including the use, publication or dissemination of nude or
				sexually explicit photographs or recordings to exploit, manipulate, threaten or
				coerce; or exposure to sexually explicit material, activity or language. Sexual
				abuse also includes, but is not limited to, instances in which:
(a) an individual lacks the capacity to assent to the sexual
				activity, even if the individual has purportedly assented; or
(b) due to the nature of his or her disability, fear of
				retribution or hardship, or the inequality of position and power, the
				individual was in appropriately engaged in the sexual activity.