Code of Massachusetts Regulations › 118 CMR - DISABLED PERSONS PROTECTION COMMISSION › Title 118 CMR 5.00 - Investigations › Section 5.02 - Conduct of Abuse Investigations

Current through Register 1525, July 5, 2024
All investigations conducted pursuant to M.G.L. c. 19C shall be
				conducted by all investigators in accordance with
				118 CMR
				5.00 and with any standards approved and adopted by
				the Commission for the conducting of such investigations.
(1)
Minimum Requirements of Abuse
			 Investigations
. Each investigation conducted pursuant to M.G.L. c.
			 19C, § 5 by the Commission or the referral agency, at a minimum, shall be
			 conducted in accordance with 118 CMR 5.02 and with any additional standards for
			 the conduct of investigations adopted by the Commission including, but not
			 limited to:
(a) an interview with the person
			 with a disability who was allegedly abused. Such an interview does not require
			 the prior permission of the guardian of the alleged victim, however the
			 guardian may be notified that such an interview is to take place, unless it is
			 determined by the assigned investigator that giving such notification to the
			 guardian would not be in the best interests of the alleged victim. Such an
			 interview shall include a review of the allegations and a discussion with the
			 person with a disability regarding the needs and wishes of that person
			 regarding protective services. The interview must take place, unless it will
			 create a foreseeable risk of harm to the person with a disability. The
			 interview shall occur at such time and in such place that it may be conducted
			 without a risk of harm to the person with a disability;
(b) a visit to and evaluation of the site of
			 alleged abuse, including, the victim's residence and day program. The
			 evaluation shall include a determination of the risk of physical or emotional
			 injury to the victim or other persons with disabilities at the same
			 location;
(c) a determination of
			 the nature, extent, and cause or causes of the injuries, if possible; or a
			 determination of whether abuse
per se
exists;
(d) use of the preponderance of evidence
			 standard to substantiate or unsubstantiate the existence of abuse leading the
			 investigator to conclude that it is more likely than not that abuse does or
			 does not exist;
(e) a determination
			 or confirmation, if possible, of the identity of the alleged abuser(s), whether
			 named or not named in the Intake, and who shall be referred to as an "alleged
			 abuser", by whose act or omission the person with a disability has incurred a
			 serious physical injury, serious emotional injury, or has been subjected to
			 abuse
per se
;
(f)
			 a determination of the identity of the person(s) who was/were responsible for
			 the health and welfare of the alleged victim(s) when the alleged incident
			 occurred, whether said person(s) is/are named or not named in the
			 Intake;
(g) an initial assessment
			 of the immediate protective services needs of the person with a disability who
			 is the alleged victim of abuse (
See
118 CMR
			 7.03:
Protective Services
			 Assessment
for requirements of the protective services
			 assessment);
(h) an interview with
			 all available witnesses to the abuse, subject to the following conditions:
1. If any said witness falls within the
			 category of a mandated reporter, he or she has an obligation pursuant to M.G.L.
			 c. 19C to cooperate in the investigation and truthfully provide to the
			 investigator all information he or she may possess that is relevant to the
			 matter under investigation. Refusal to be interviewed or to otherwise cooperate
			 in the investigation will be made a part of the report, and if the witness is
			 an employee of a state agency, unless a mandated reporter's response to a
			 question could be used against him or her in a criminal proceeding, his or her
			 failure to cooperate shall be reported to the person's supervisor and to the
			 appropriate public agency for possible disciplinary action under that agency's
			 regulations or pursuant to the provisions of any relevant collective bargaining
			 agreement or any other contract;
2.
			 Said witness may be accompanied during an interview by a person of his or her
			 own choice who is 18 years of age or older, provided that said companion shall
			 not be a supervisor or administrator employed by the alleged abuser's employer,
			 unless requested by said witness and agreed to by the investigator; or is not
			 otherwise involved or has an interest in the matter under investigation. Other
			 than being present during the interview, said companion shall not participate
			 in the actual conduct of the interview;
3. Said witness shall be informed of the
			 existence of the complaint and the general nature of the allegations. Under no
			 circumstances shall the identity of the reporter be disclosed.
(i) an interview with the alleged
			 abuser(s), unless such an interview would create additional risk of harm to the
			 person with a disability;
(j) a
			 determination that all relevant physical evidence of the alleged abuse has been
			 preserved, if possible, including taking measures to ensure that such evidence
			 is preserved by the person having control of the evidence;
(k) the review and obtaining of copies of all
			 documents which are not plainly irrelevant to the matter under investigation,
			 as permitted by M.G.L. c. 19C, § 5(1), from a mandated reporter or a
			 mandated reporter's employer acting as custodian of the documents including,
			 but not limited to:
1. medical and clinical
			 records pertaining to any injury sustained by any person with a disability
			 involved in the matter under investigation;
2. any other medical and clinical records of
			 the alleged victim, or of any other party with a disability involved in the
			 matter under investigation including, but not limited to, any records
			 designated as subject to the "peer review privilege" pursuant to M.G.L. c. 111,
			 § 204 and any psychotherapeutic records including, but not limited to,
			 hospital admissions, hospital discharges, dates of hospitalization, purpose of
			 admission, notations of objective
indicia
of emotional
			 disturbance, and objective accounts of a patient's past medical and psychiatric
			 histories which may include earlier hospitalizations, treatments and diagnoses.
			 If such psychotherapeutic records contain the communications or notes of
			 communications between the patient and the psychotherapist, such communications
			 or notes of communications between the patient and the psychotherapist shall be
			 deleted before the remaining portions of the psychotherapeutic record are
			 provided to the investigator. If the investigator submits a release of the
			 psychotherapeutic records executed by the patient or the patient's guardian,
			 the entire psychotherapeutic record, including the communications or notes of
			 communications between the patient and the psychotherapist, shall be released
			 to the investigator;
3. any
			 incident report filed pursuant to the requirements of any state
			 agency;
4. relevant portions of the
			 case records of any person with a disability provided services and involved in
			 the matter under investigation;
5.
			 any restraint forms completed in connection with any person with a disability
			 who is involved in the matter under investigation;
6. personnel records including, but not
			 limited to, documents regarding employee disciplinary action, employee
			 evaluations, employee training, employment application and an employee's
			 medical information that is plainly not irrelevant to either the allegation of
			 abuse being investigated by the Commission or to the Commission's ability to
			 ensure appropriate protective services to the alleged victim of
			 abuse;
7. any policies, procedures
			 or guidelines of the state agency or of the service provider involved in the
			 matter under investigation or employing the alleged abuser;
8. any existent photographs of any physical
			 injury or property damage plainly not irrelevant to the incident being
			 investigated;
9. any documents
			 relating to previous cases involving the alleged victim or the alleged abuser
			 in which a complaint was filed or investigated pursuant to M.G.L. c. 19C or
			 pursuant to the authority of any other agency of the Commonwealth;
			 and
10. any other documents
			 specifically identified by the investigator and which are plainly not
			 irrelevant to the matter under investigation.
(l) an interview with the reporter;
(m) a determination in cases in which abuse
			 is not substantiated as to whether the allegation reported to the Commission
			 constitutes a false report and if so, an explanation of the investigator's
			 rationale which supports this conclusion;
(n) any other tasks that, in the discretion
			 of the Commission, are deemed appropriate and are plainly not irrelevant to the
			 investigation; and
(o) if an
			 investigator does not perform one or more of the requirements in 118 CMR
			 5.02(1)(a) through (n), the investigator shall detail in the Investigation
			 Report why the requirement was not met and the Commission shall determine
			 whether said requirement(s) is material to the investigation.