Code of Massachusetts Regulations › 105 CMR - DEPARTMENT OF PUBLIC HEALTH › Title 105 CMR 155.000 - Patient And Resident Abuse Prevention, Reporting, Investigation, Penalties And Registry › Section 155.003 - Definitions

Current through Register 1525, July 5, 2024
As used in
				105 CMR 155.000 the
				following definitions apply, in addition to those appearing in M.G.L. c. 111,
				§ 72F, unless the context or subject matter clearly requires
				otherwise:
Abuse
. The willful infliction of
				injury, unreasonable confinement, intimidation, including verbal or mental
				abuse, or punishment with resulting physical harm, pain, or mental anguish, or
				assault and battery; provided, however, that verbal or mental abuse shall
				require a knowing and willful act directed at a specific patient or resident.
				In determining whether or not abuse has occurred, the following standards shall
				apply:
(1) A patient or resident has been abused if:
(a) An individual has made or caused physical contact with the
				patient or resident in question, either through direct bodily contact or
				through the use of some object or substance;
(b) The physical contact in question resulted in death,
				physical injury, pain or psychological harm to the patient or resident in
				question; and
(c) The physical contact in question cannot be justified under
				any of the exceptions set forth in 105 CMR 155.003:
Abuse
(3).
(2) A patient or resident has been abused if an individual has
				knowingly and willfully used oral, written, or gestured language with the
				intent to injure, confine, intimidate, or punish the patient or resident in
				question.
(3) Notwithstanding the provisions of 105 CMR 155.003:
Abuse
(1)(a) through (c) and (2), if an individual has
				used physical contact with a patient or resident which harms that patient or
				resident, such contact shall not constitute abuse if:
(a) The physical contact with the patient or resident occurs in
				the course of carrying out a prescribed form of care, treatment or therapy, and
				both the type of physical contact involved and the amount of force used are
				necessary in order to carry out that prescribed form of care, treatment or
				therapy, provided that the patient or resident has not refused such care,
				treatment or therapy;
(b) The physical contact with the patient or resident occurs in
				the course of providing comfort or assistance to the patient or resident, and
				both the type of physical contact involved and the amount of force used are
				necessary in order to provide comfort or assistance to the patient or
				resident;
(c) The physical contact with the patient or resident occurs in
				the course of attempting to restrain the behavior of the patient or resident in
				question, and both the type of physical contact involved and the amount of
				force used are necessary in order to prevent that patient or resident from
				injuring himself, herself, or any other person; or
(d) The patient or resident, in accordance with his or her
				expressed or implied consent, is being furnished or relies upon treatment by
				spiritual means through prayer alone in accordance with a religious method of
				healing in
lieu
of medical treatment.
(4) Physical contact with a patient or resident which harms
				that patient or resident, and which occurs for the purpose of retaliating
				against that patient or resident, shall constitute abuse.
Accused
. An employee of a facility,
				including an individual working under contract, or a volunteer working in a
				facility, an employee of, including an individual working under contract, or a
				volunteer working for a home health agency, homemaker agency or hospice program
				who is the subject of an allegation of abuse, neglect or mistreatment of a
				patient or resident, or an allegation of misappropriation of patient or
				resident property.
Adjudicated Finding
. The determination
				of a hearing officer at the conclusion of a hearing as to whether or not a
				nurse aide, home health aide, or homemaker abused, neglected, or mistreated a
				patient or resident or misappropriated patient or resident property.
Commissioner
. The Commissioner of the
				Department of Public Health or his or her designee.
Department
. The Massachusetts
				Department of Public Health.
Facility
. An entity required to be
				licensed under M.G.L. c. 111, § 71.
Finding
. The Department's
				determination, at the conclusion of its investigation, that an allegation of
				patient or resident abuse, neglect, mistreatment or misappropriation of patient
				or resident property against an accused is valid or not.
Harm
. Includes, but is not limited to,
				death, physical injury, pain or psychological injury. Psychological injury
				includes, but is not limited to, conduct which coerces or intimidates a patient
				or resident, or which subjects that patient or resident to scorn, ridicule,
				humiliation, or produces a noticeable level of mental or emotional distress.
Home Health Aide
. An individual hired
				or employed by a home health agency or a hospice program who provides health
				services to individuals in their residences.
Home Health Agency
. An entity, however
				organized, whether conducted for profit or not for profit, which is advertised,
				announced, established or maintained for the purpose of providing health and/or
				homemaker services to individuals in their residences.
Homemaker
. An individual hired or
				employed by a home health agency, homemaker agency, or a hospice program, who
				works under agency or program supervision, and is trained by an agency or
				program to provide homemaking services, such as meal preparation, cleaning and
				laundry as well as other essential nutritional and environmental services, in a
				patient's residence, as needed by the patient.
Homemaker Agency
. Any entity that
				hires or employs homemakers to provide homemaking services, which are based
				upon a patient's identified health, infirmity or disability related needs, in a
				patient's residence.
Hospice Program
. An entity required to
				be licensed under M.G.L. c. 111, § 57D or a hospice service of a hospital
				licensed under M.G.L. c. 111, § 51.
Hospice Worker
. A paid individual
				hired by or employed by a hospice program to provide hospice services to a
				patient.
Isolation Technique
. Any method of
				physically segregating a patient or resident from other persons or restricting
				a patient's or resident's opportunities to interact or communicate with other
				persons. Emergency or short-term monitored separation from others will not be
				considered an isolation technique if used for a limited period of time as a
				therapeutic intervention to reduce agitation until the behavior requiring the
				intervention is resolved.
Mandatory Reporting Individual
. Any
				person who is paid for caring for a patient or resident, whether on a permanent
				or temporary basis, who is:
(1) a physician;
(2) a medical intern or resident;
(3) a physician assistant;
(4) a registered nurse;
(5) a licensed practical nurse;
(6) a nurse aide;
(7) an orderly;
(8) a home health aide;
(9) a homemaker;
(10) a hospice worker;
(11) an administrator of a facility, home health agency,
				homemaker agency, or hospice program;
(12) a responsible person in a rest home;
(13) a medical examiner;
(14) a dentist;
(15) an optometrist;
(16) an optician;
(17) a chiropractor;
(18) a podiatrist;
(19) a coroner;
(20) a police officer;
(21) a speech pathologist;
(22) an audiologist;
(23) a social worker;
(24) a pharmacist;
(25) a physical therapist;
(26) an occupational therapist; or
(27) a health officer.
Misappropriation of Patient or Resident
				Property
. The deliberate misplacement, exploitation or wrongful
				temporary or permanent use of a patient's or resident's belongings or money
				without such patient's or resident's consent.
Mistreatment
. The use of medications,
				or treatments, or isolation, or physical or chemical restraints that harm or
				are likely to harm the patient or resident. In determining whether or not
				mistreatment has occurred, the following standards shall apply:
(1) A patient or resident has been mistreated if:
(a) An individual used some type of medication, treatment,
				isolation technique or restraint on the patient or resident;
(b) The particular use of the medication, treatment, isolation
				technique or restraint was either intentional or careless in nature, contrary
				to the patient or resident's expressed decision to refuse such treatment, or
				contrary to the patient's or resident's written care plan;
(c) The particular use of the medication, treatment, isolation
				technique or restraint resulted, or was likely to result, in harm to the
				patient or resident involved, including but not limited to, physical injury,
				pain, or death, unreasonable restriction of the ability to move around,
				unreasonable restriction of the ability to communicate with others, or
				psychological harm; and
(d) The particular use of the medication, treatment, isolation
				technique or restraint cannot be justified under any of the exceptions set
				forth in 105 CMR 155.003:
Mistreatment
(2).
(2) Notwithstanding the provisions of 105 CMR 155.003:
Mistreatment
(1), the following shall not constitute
				mistreatment:
(a) Use of an isolation technique for the purpose of preventing
				a documented contagious disease from spreading to other persons, as long as
				this technique is the least restrictive available method of preventing the
				spread of that disease, and reasonable care is exercised with the use of that
				technique;
(b) Use of a particular medication, isolation technique or
				restraint in the course of carrying out a prescribed form of treatment or
				therapy, if such use has been authorized by a physician's order or, when
				applicable, by a court of competent jurisdiction in accordance with applicable
				law; or
(c) Use of a particular medication, isolation technique, or
				restraint for the purpose of preventing a patient or resident from engaging in
				behavior which may injure him or her or injure another person, as long as the
				particular use in question is the least restrictive available alternative which
				will be effective in preventing such harm and reasonable care is exercised in
				connection with that use.
Neglect
. Failure to provide goods and
				services necessary to avoid physical harm, mental anguish or mental illness. In
				determining whether or not neglect has occurred, the following standards shall
				apply:
(1) A patient or resident has been neglected if:
(a) An individual has failed to provide appropriate care,
				treatment or service to the patient or resident;
(b) The individual's failure to provide the treatment, care or
				service to the patient or resident is either intentional or the result of
				carelessness; and
(c) As a result of the failure to provide the treatment, care
				or service, the individual has failed to maintain the health or safety of the
				patient or resident, as evidenced by harm to the patient or resident, or a
				deterioration in the patient or resident's physical, mental or emotional
				condition.
(2) Notwithstanding the provisions of 105 CMR 155.003:
Neglect
(1):
(a) A patient or resident shall not be considered to be
				neglected for the reason that such patient or resident, in accordance with his
				or her expressed or implied consent, is being furnished or relies upon
				treatment by spiritual means through prayer alone in accordance with a
				religious method of healing in
lieu
of medical
				treatment;
(b) Neglect of a patient or resident shall not be considered to
				have been caused by an accused if such accused can demonstrate that such
				neglect was caused by factors beyond his or her control.
Nonmandatory Reporting Individual
. Any
				person who is not a mandatory reporting individual as defined in 105 CMR
				155.003 and who makes a report of suspected patient or resident abuse, neglect,
				mistreatment or misappropriation of patient or resident property to the
				Department pursuant to M.G.L. c. 111, § 72G and
				105 CMR 155.000.
Nurse Aide
. Any individual who is not
				a licensed health professional, but is employed or hired by a facility, and who
				provides nursing or nursing-related services to residents.
Patient
. An individual who receives
				health, homemaker or hospice services from an individual employed by a home
				health agency, homemaker agency, or a hospice program.
Registered or Licensed Professional
.
				Anyperson engaged in any occupation or profession which is subject to
				licensure, registration or certification including individuals licensed,
				registered or certified under M.G.L. c. 112, §§ 2 through 36, 43
				through 53, 66 through 81C, 87F through 87KK, 87EEE through 87OOO, 87WWW
				through 87ZZZ, 89 through 97, 108 through 147, or 163 through 172.
Registry
. Nurse aide registry as
				established in accordance with M.G.L. c. 111, § 72J
Resident
. An individual who resides in
				a long term care facility licensed under M.G.L. c. 111, § 71.
Restraint
. Any physical, chemical or
				mechanical method of restricting a patient's or resident's ability to move all
				or part of his or her body or communicate with other persons.
Verbal Abuse
. Any use of oral, written
				or gestured language that willfully includes disparaging, derogatory or
				frightening terms to patients or residents, or within their hearing distance,
				regardless of their ability to comprehend, or disability.