Code of Massachusetts Regulations › 651 CMR - EXECUTIVE OFFICE OF ELDER AFFAIRS › Title 651 CMR 5.00 - Elder Abuse Reporting and Protective Services Program › Section 5.02 - Definitions

Current through Register 1525, July 5, 2024
As used in
				651 CMR 5.00, these terms
				shall have the following meanings:
Abuse
. An act or omission, including
				Emotional Abuse, Financial Exploitation, Neglect, Physical Abuse, Sexual Abuse,
				and/or Self-neglect, which results in Serious Physical Injury or emotional
				injury to an Elder, or Financial Exploitation of an Elder; provided, however,
				that no person shall be considered to be abused or neglected for the sole
				reason that such person 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.
Aging Services Access Points (ASAPs)
.
				Locally based private, non-profit corporations which contract with the
				Department to provide community based services to certain Eligible Elders in
				accordance with M.G.L. c. 19A, § 4B.
Capability to Respond to an Emergency
.
				The capability of a Protective Services Agency to, in an Emergency:
(a) immediately initiate the Investigation;
(b) determine the need for an in home visit and/or other
				response, and initiation of this response, within five hours of the receipt of
				the report;
(c) assess the Emergency needs of the allegedly Abused Elder
				within 24 hours of the receipt of the report; and
(d) provide services to alleviate the Emergency condition.
				Where appropriate, such services may include a petition to the Court for an
				Emergency order of Protective Services pursuant to M.G.L. c. 19A, § 20(b)
				and in accordance with
				651 CMR
				5.16 and
				5.17.
Capability to Respond to a Rapid Response
				Situation
. The capability of a Protective Services Agency to, in a
				Rapid Response situation:
(a) immediately initiate the Investigation;
(b) determine the need for an in home visit and/or other
				response, and initiation of this response, within 24 hours of the receipt of
				the report;
(c) assess the Rapid Response needs of the allegedly Abused
				Elder within 72 hours of the receipt of the report; and
(d) provide services to alleviate the Rapid Response situation
				where appropriate, and consistent with
				651
				CMR 3.00:
Home Care Program
, 5.00 and
				M.G.L. c. 19A, § 4B and any applicable regulations.
Caretaker
. The person(s) responsible
				for the care of an Elder, which responsibility may arise as the result of the
				following:
(a)
Family Relationships
. A husband,
				wife, son, daughter, brother, or sister, or other relative of an Elder shall be
				presumed to be a Caretaker if she or he is living with the Elder on a regular
				basis or is otherwise acting in the role of Caretaker by providing substantial
				assistance to the Elder which would lead a reasonable person to believe that
				she or he is acting in the role of Caretaker. Exceptions are minor children and
				adults adjudicated as incompetent by a court of law.
(2)
Fiduciary Relationships Imposed by
				Law
. A Guardian of the person and assets of an Elder appointed by
				the Probate Court pursuant to M.G.L. c. 190B shall be a Caretaker. A
				Conservator of an Elder appointed by the Probate Court pursuant to M.G.L. c.
				190B, shall be Caretaker of said Elder to the extent that he or she must apply
				the assets of the Elder to provide the necessities essential for the physical,
				intellectual and emotional well-being of the Elder. The attorney-in-fact,
				holding a power of attorney or durable power of attorney pursuant to M.G.L. c.
				190B, shall be Caretaker of the Elder granting such a power to the extent that
				the power of attorney or durable power of attorney requires him or her to apply
				the assets of the Elder to provide the necessities essential for the physical,
				intellectual and emotional well-being of the Elder.
(c)
Contractual Relationships
. A
				person(s) who is responsible for the care of an Elder and receives monetary or
				personal benefit or gains as a result of a bargained for agreement with the
				Elder to act as a Caretaker shall be a Caretaker. A homemaker, home health
				aide, case manager, visiting nurse or employee of a Homemaker Service Agency,
				Home Care Program or Agency, or Visiting Nurses Association shall not be a
				Caretaker under this definition.
(d)
The Voluntary Assumption of Caretaker
				Duties
. A person(s) who undertakes a voluntary duty of care for an
				Elder shall be presumed not to be a Caretaker unless one or more of the
				following criteria are met by the reputed Caretaker:
1. The reputed Caretaker is living in the household of the
				Elder. Exceptions are minor children and adults adjudicated as incompetent by a
				court of law.
2. The reputed Caretaker is related to the Elder and he or she
				has acted or is acting by providing substantial assistance or in such a manner
				as to lead a reasonable person to believe that he or she is acting as a
				Caretaker.
3. The care being rendered by the reputed Caretaker is of a
				permanent and not temporary duration in that the reputed Caretaker maintains a
				physical presence in the household on a regular basis.
4. The Elder by his or her actions, statements, or behavior,
				indicates reliance upon the reputed Caretaker for care in such a manner that a
				reasonable person would believe that the reputed Caretaker is being relied upon
				by the Elder to care for him or her.
5. The reputed Caretaker, by his or her actions, statements, or
				behavior, indicates voluntary assumption of the obligation of Caretaker in such
				a manner that a reasonable person would believe that the reputed Caretaker is
				being relied upon to care for the Elder.
Conservator
. A person who is appointed
				to manage the estate of a protected person pursuant to M.G.L. c. 190B.
Court
. The Probate and Family Court of
				the Commonwealth.
Data Subject
. An individual to whom
				Personal Data refers.
Data Subject
shall not include
				corporations, corporate trusts, or other similar entities.
Decisional Capacity
. An Elder's
				ability to:
(a) understand and appreciate the nature and consequences of
				decisions, including the benefits and risks of and alternatives to any proposed
				Protective Services; and
(b) reach an informed decision while free from any apparent
				duress, intimidation, coercion, use of force, or threat of force by another.
Department
. The Executive Office of
				Elder Affairs of the Commonwealth of Massachusetts.
Designation Agreement
. An agreement
				between the Department and a Protective Services Agency providing for
				designation of such agency as a Protective Services Agency for a Protective
				Services area, which provides for such Agency to provide one or more Protective
				Services either directly or through subcontract with funding through the
				Department, or by interagency agreement, or by use of available existing
				services.
Elder
. An individual who is 60 years
				of age or older.
Elder Abuse Hotline
. A component of
				the Protective Services Program that allows the submission of reports of Abuse
				on a 24 hour per day, seven day per week basis.
Eligible Elder
. An Elder who, as a
				result of an Investigation by a Protective Services Agency, has been determined
				to be suffering from a Reportable Condition, is in need of one or more
				Protective Services, and has themselves or through the provisions of M.G.L. c.
				19A, §§ 20(a) and 20(b) consented to the provision of one or more
				Protective Services.
Emergency
. An abusive situation in
				which an Elder is at risk of:
(a) imminent death;
(b) immediate and Serious Physical Injury or emotional harm;
				and/or
(c) immediate, substantial and irrevocable financial loss.
Emotional Abuse
. Any intentional act
				or omission, including but not limited to verbal abuse, confinement, isolation,
				humiliation, intimidation or any other act or omission that:
(a) results in significant harm to the emotional state,
				Decisional Capacity or Functional Capacity of an Elder; or
(b) creates a reasonable risk of significant harm to the
				emotional state, Decisional Capacity or Functional Capacity of an Elder.
Financial Exploitation
. An intentional
				act or omission by another person, without the consent of the Elder, which
				causes substantial monetary or property loss to the Elder or substantial
				monetary or property gain to the other person which gain would otherwise
				benefit the Elder, but for the act or omission of the other person. Financial
				exploitation may result from consent obtained as a result of misrepresentation,
				undue influence, coercion or threat of force by the other person. Financial
				exploitation may not result from a
bona fide
gift or from any
				act or practice by another person in the conduct of a trade or commerce
				prohibited by M.G.L. c. 93A, § 2.
Functional Capacity
. An Elder's
				ability to physically perform and complete desired tasks or activities of daily
				living in a safe and consistent manner.
Guardian
. A person who has qualified
				as a guardian of an Elder pursuant to testamentary or court appointment
				pursuant to M.G.L. c. 190B, but shall not include a guardian
ad
				litem
.
Holder
. The Department, the Elder
				Abuse Hotline, each Protective Services Agency and guardianship or
				conservatorship agency which collects, uses, maintains or disseminates Personal
				Data as a result of performing a governmental or public function or purpose
				under M.G.L. c. 19A, §§ 14 through 26. Each Protective Services
				Agency, each guardianship or conservatorship agency, and the Elder Abuse
				Hotline is a Holder and subject to the provisions of
				651 CMR 5.00 only with respect
				to Personal Data held under contract or arrangement with the Department under
				the Elder Protective Services Program.
Home Care Program
. A program of home
				care services for Elders operated by the Commonwealth pursuant to the
				requirements of
				651
				CMR 3.00:
Home Care Program
.
Home Care Services
. The services under
				the Home Care Program, either direct or purchased, which are designed to assist
				Elders to secure and maintain independent living in a home environment and
				which are available for support through funds administered by the Department
				pursuant to
				651 CMR 3.01:
Scope and Purpose
.
Investigation
. The process of
				objective information gathering for the purposes of:
(a) assessing reported allegations of Abuse;
(b) evaluating the condition of the Elder including the
				Decisional Capacity and Functional Capacity of the Elder in order to determine
				if there is Reasonable Cause to Believe that the Elder is suffering from
				Abuse;
(c) establishing a basis for offering services if the existence
				of Abuse is confirmed.
Legal Assistance
. Legal advice and
				representation provided to an Eligible Elder by an attorney in civil matters
				(and where appropriate, counseling and other assistance by a paralegal or law
				student under the supervision of an attorney), including counseling or
				representation by a non-lawyer where permitted by law, to Elders who are
				determined to be Abused.
Mandated Reporter Not Subject to Fine
.
				Any executive director of a Home Care Program who has Reasonable Cause to
				Believe that an Elder is suffering from or has died as the result of a
				Reportable Condition. Any homemaker, home health aide, case manager or other
				staff of a Home Care Program, licensed home health agency, or homemaker service
				agency who is not a licensed social worker, nurse, licensed psychologist, or
				family counselor, who has Reasonable Cause to Believe that an Elder is
				suffering, or has died from a Reportable Condition, shall be included in this
				category.
Mandated Reporter Subject to Fine
. Any
				physician, physician assistant, medical intern, dentist, nurse, family
				counselor, probation officer, social worker, police officer, firefighter,
				emergency medical technician, licensed psychologist, coroner, registered
				physical therapist, registered occupational therapist, osteopath, podiatrist,
				director of a council on aging, outreach worker employed by a council on aging,
				executive director of a licensed home health agency or executive director of a
				homemaker service agency or manager of an assisted living residence who has
				Reasonable Cause to Believe that an Elder is suffering from or has died as a
				result of a Reportable Condition.
Neglect
. The failure or refusal by a
				Caretaker to provide one or more of the necessities essential for physical
				well-being, such as food, clothing, medication, shelter, personal care, and
				medical care, which has resulted in Serious Physical Injury to an Elder; or a
				Reasonable Cause to Believe that such failure or refusal will immediately
				result in Serious Physical Injury to an Elder.
Neglect
shall be determined by
				consideration of each of the following factors:
(a) the Elder's ability to meet his or her own needs.
(b) a history of dependence on a Caretaker.
(c) the Elder's Decisional Capacity and Functional
				Capacity.
(d) the expectation or desire of the Elder of continuing to
				receive care provided by the Caretaker.
Personal Data
. Any information
				concerning an individual which, because of identifying number, mark or
				description, can be readily associated with a particular individual; provided,
				however, that such information is not contained in a Public Record, as defined
				in M.G.L. c. 4, § 7, clause 26. Personal data shall not include
				intelligence information, evaluative information or criminal offender record
				information as defined in M.G.L. c. 6, § 167.
Personal Data System
. A system of
				records operated by the Department, each guardianship agency, and each
				Protective Services Agency, and the Elder Abuse Hotline which system is
				organized such that data are retrievable by use of the identity of the Data
				Subject.
Physical Abuse
.
(a) The intentional infliction of Serious Physical Injury to an
				Elder; or
(b) a threat to inflict Serious Physical Injury to an Elder for
				which the Protective Services Agency has Reasonable Cause to Believe that the
				party or parties making the threat possess(es) the intent and apparent ability
				to carry out the threat.
Protective Order
. An order of the
				Court sought by a petition under M.G.L. c. 19A, § 20(a) (non-emergency) or
				20(b) (emergency) for the provision of one or more Protective Services for an
				Elder who is suffering from a Reportable Condition and either lacks the
				Decisional Capacity to consent to Protective Services or requires the
				determination of his or her Decisional Capacity to consent to Protective
				Services.
Protective Services
. Services which
				are necessary to prevent, eliminate or remedy the effects of Abuse to an Elder.
				Subject to appropriation, these services shall include, but not be limited to,
				the following:
(a) Provide a response to an Emergency and/or Rapid Response
				Situation;
(b) Arrange for Home Care Services;
(c) Arrange for the provision of Legal Assistance;
(d) Arrange for counseling;
(e) Pursue the issuance of a Protective Order, when
				appropriate;
(f) Petition the Court for the appointment of a Guardian and/or
				Conservator.
Protective Services Agency
. A public
				or nonprofit private agency, corporation, board, or organization designated by
				the Department pursuant to M.G.L. c. 19A, § 16 to furnish Protective
				Services to an Eligible Elder.
Protective Services Casework
.
				Activities conducted by a Protective Services Agency including: conducting an
				Investigation to determine if an Elder is suffering from Abuse; developing a
				Service Plan; providing or arranging for Protective Services to an Eligible
				Elder with his or her consent established in accordance with the provisions of
				M.G.L. c. 19A, §§ 20 (a) or 20 (b); providing information and
				referral to appropriate agencies; having the Capability to Respond to an
				Emergency; having the Capability to Respond to a Rapid Response Situation; and
				arranging counseling for Elders regarding the alleviation or prevention of
				Abuse and the availability of services.
Protective Services Caseworker
. An
				employee of a Protective Services Agency who performs intake and/or
				Investigation and Service Plan development and other Protective Services
				Casework functions under the Elder Protective Services Program. A Protective
				Services Caseworker must meet the following qualifications:
(a) A Masters or higher degree from an accredited school in
				social work, psychology, counseling, human development, nursing, sociology,
				criminal justice, public health, public policy, or gerontology, and at least
				one year of experience in counseling, casework, case management, preferably in
				a Protective Services or crisis intervention role; or
(b) A Bachelors' degree from an accredited school in social
				work, psychology, counseling, human development, nursing, sociology, criminal
				justice, public health, public policy, or gerontology, and at least two years
				of experience in counseling, casework or case management providing protective
				or crisis intervention services.
Protective Services Program
. The
				system of accepting reports of Abuse, the Investigation of such reports, and
				the provision of Protective Services authorized to be carried out by the
				Department pursuant to M.G.L. c. 19A, §§ 14 through 26, subject to
				appropriation.
Protective Services Supervisor
. An
				employee of a Protective Services Agency who manages the work of Protective
				Services Caseworkers and ensures the effective and efficient management of
				Protective Services Casework. A Protective Services Supervisor must meet the
				following qualifications:
(a) A Masters or higher degree from an accredited school in
				social work, psychology, counseling, human development, nursing, sociology,
				criminal justice, public health, public policy, or gerontology, and at least
				two years of experience in counseling, casework, case management, preferably in
				a Protective Services or crisis intervention role; or
(b) A Bachelors' degree from an accredited school in social
				work, psychology, counseling, human development, nursing, sociology, criminal
				justice, public health, public policy, or gerontology plus at least three years
				of experience in counseling, casework or case management providing protective
				or crisis intervention services.
Public Records
. Any document or record
				as identified in M.G.L. c. 4.
Rapid Response
. A non-emergency, but
				urgent situation in which an Elder is living in conditions which present a
				potential, or rapidly developing risk of Serious Physical Injury or emotional
				harm; or a potential, or developing risk of immediate, substantial and
				irrevocable financial loss.
Reasonable Cause to Believe
. A basis
				for judgment that rests on specific facts, either directly observed or obtained
				from reliable sources, that supports a belief that it is more probable than not
				that a particular event took place or a particular condition exists.
Reportable Condition
. Any one or more
				of the following:
(a) Abuse;
(b) Physical Abuse;
(c) Sexual Abuse;
(d) Emotional Abuse;
(e) Neglect;
(f) Self-neglect; and
(g) Financial Exploitation.
Self-neglect
. Based on a Reasonable
				Cause to Believe, the failure, refusal, inability, or resistance of an Elder to
				provide for himself or herself one or more of the necessities essential for
				physical or emotional well-being, including but not limited to, food, clothing,
				shelter, necessary medications, and/or personal care, which has resulted in:
(a) Serious Physical Injury or emotional harm; or
(b) the risk of imminent Serious Physical Injury or emotional
				harm.
The following factors will be considered when making a
				determination of Self-neglect:
1. the presence of mental or physical impairments, substance
				abuse, and/or cultural or linguistic barriers;
2. the Elder's Decisional Capacity to make informed decisions
				and knowingly appreciate the consequences of such decisions;
3. the involvement or availability of other service providers
				to meet one or more of the Elder's essential needs when acting within the scope
				of their responsibility;
4. the willingness and capability of family members and friends
				to meet one or more of the Elder's essential needs; and/or,
5. the Elder's physical and mental condition, and the potential
				for the situation to escalate to the point where the Elder would be seriously
				harmed without intervention.
Serious Physical Injury
. A status of
				an Elder as determined by a Protective Services Agency based on a review of the
				following factors:
(a) the Elder's physical condition;
(b) the type, size, shape, number and location of physical
				injuries;
(c) the circumstances under which the injury occurred including
				the potential for serious injury in the actual incident;
(d) the emotional impact on the Elder; and
(e) the potential for escalation of Abuse.
Service Plan
. A written document
				created by a Protective Services Agency describing the actions and services
				needed to prevent, eliminate or alleviate the Abuse of an Elder. Actions and
				services may be provided by Caseworkers, Elders, Caretakers, relatives,
				friends, human service and health services professionals, and others depending
				on the Eligible Elder's needs and the availability of resources. Each Service
				Plan shall include:
(a) clear and specific statement(s) of the problem(s)
				contributing to the Abuse;
(b) specific and measurable action steps which are designed to
				address each problem statement; and
(c) all findings of Abuse identified in the Investigation
				and/or in the process of ongoing Protective Services Casework.
Sexual Abuse
. Sexual assault, rape,
				sexual misuse, or sexual exploitation of an Elder or threats of Sexual Abuse
				where the individual has the intent and apparent ability to carry out the
				threatened Sexual Abuse.