Chapter V

ABUSE AND NEGLECT

Background

While a primary goal of DMR is to support as much independence as possible for its clients, most if not all persons with mental retardation living in CLAs are vulnerable to the actions of themselves and others, and may not have the independent tools to either protect themselves or articulate what happened to them to others. Thus a system to address abuse and neglect concerns is needed.

All DMR clients, including those residing in CLAs, the focus of this study, have the statutory right to "be protected from harm and receive humane and dignified treatment which is adequate for his needs and for his development to his full potential at all times..." ¹

Also, the 1985 Mansfield consent decree, which laid the blueprint for growth in community living in the 1980s, required the development and implementation of abuse/neglect policies and procedures, to carry out the decree principle that "DMR will not tolerate abuse of persons who are mentally retarded."

The Mansfield-prompted policies and procedures, effective in 1986, were operative until March 2002 when DMR established a new policy. The new policy is similar in substance, but is more specific about procedures, including tracking investigation outcomes.

What is Abuse and Neglect?

• In very general terms, the difference between abuse and neglect is whether someone intended to harm or not. A finding of abuse requires intent.
• "Abuse" under the state statute pertaining to most abuse/neglect cases involving persons with mental retardation is the willful infliction of physical pain or injury or the willful deprivation by a caretaker of services which are necessary to the person's health or safety.

_ Under DMR policy, abuse also includes the use of offensive language or an act to provoke or upset an individual or to subject him or her to humiliation or ridicule.

• "Neglect" under the same statute is a situation where a person with mental retardation either is living alone and is not able to provide for himself the services which are necessary to maintain his physical and mental health OR is not receiving such necessary services from his caretaker.

_ DMR policy also uses a term "programmatic neglect", which means the failure to provide oversight in developing or implementing an individual's program that ensures an individual's well-being and safety.

• Because of the different agencies and statutes involved with abuse/neglect allegations related to persons with mental retardation, different definitions have existed over the years, though those differences have been minimized recently due to DMR policy amendments.

Abuse/Neglect Response System

There are four components of an abuse/neglect response system: prevention; reporting; investigation; and resolution.

Prevention

General program operations

• DMR policy states all service programs for DMR clients are to "undertake activities" to prevent abuse.
• A DMR client's Interdisciplinary Team is to "identify in the plan services required to prevent the individual from engaging in or being subjected to abuse/neglect."

Training

• All DMR employees and private provider employees who serve DMR clients are trained annually in the recognition, prevention, and obligation to report abuse/neglect. Supervisors are also trained to ensure the statutory reporting requirements are met and that no retaliation for reporting occurs.

Incident Reporting

• DMR requires all "incidents" involving clients to be reported on DMR forms, whether or not there is suspicion of abuse or neglect. Reportable incidents range from client injuries of any severity, including self-inflicted injuries, use of restraints (outside of an approved program), and unusual incidents including calls for fire or police service and missing clients, to medication errors.

_ Incident reports can serve as a warning the potential for abuse/neglect exists.

_ DMR case management supervisors and individual case managers receive copies of incident reports about a week after they are submitted to the regional quality improvement directors for review and data entry. Case managers are to be informed of any significant incidents immediately in order to make sure any appropriate action is taken.

_ An allegation of abuse or neglect related to an incident is to be noted on the incident form, in which case a whole separate reporting and follow-up procedure comes into play. A description follows.

REPORTING AND INVESTIGATION

In Connecticut, there is a multi-agency system in place for reporting and investigating abuse/neglect allegations involving DMR clients. Within DMR itself, there are two separate tracks for abuse/neglect investigations, depending on whether the service provider in question is private and under contract with DMR, or DMR itself.

• While DMR in reality either monitors, reviews, or conducts most of the abuse/neglect investigations related to persons in CLAs, there are other state agencies with statutory authority and responsibility for these investigations. In part this is because people with mental retardation, due to age or other characteristics, also fall under other agency jurisdictions.
• In addition, the Office of Protection and Advocacy for Persons with Disabilities (OPA) has had, since 1984, the authority and responsibility for abuse/neglect investigations involving persons with mental retardation between the ages 18 to 59.
• Table V-1 summarizes the statutory responsibilities of the various state agencies.

A Note About OPA

• OPA first acquired the responsibility to receive and investigate complaints of abuse related to persons with mental retardation in 1984. Two years later, neglect complaints were added to OPA's charge. Certain persons, including DMR and private provider direct care workers, physicians and nurses, are mandated to report any suspicion of abuse and neglect to OPA (similar to the mandated reporter laws for children and elderly people).
• Based on the 1984 legislative history, it seems clear OPA was to have a prominent role as the receiver and independent investigator of abuse/neglect allegations for persons with mental retardation between the ages 18-59, including, but not limited to, DMR clients. Proponents referred to the benefits of "third party intervention" in abuse cases. At the time, though, OPA representatives said they would need more resources for the new function. OPA was never staffed to handle the investigation task by itself.
• Thus, though almost all abuse and neglect allegations related to DMR clients must be reported to OPA, from the beginning, OPA and DMR have operated with an understanding that splits investigations among them, as described in Table V-1. (DMR signed a memorandum of agreement with OPA, DCF, and DSS in 1992 to coordinate agency efforts).

Volume of Allegations and Outcomes

• Figure V-1 shows the number of abuse/neglect allegations related to DMR clients for each year over a 10-year period ending FY 01. Over that period, there was an average of 1,147 abuse/neglect allegations reported each year. The yearly totals ranged from a low of 950 in FY 92 to a high of 1290 in FY 2000, a 36 percent increase. FY 2001 showed a slight decline.

• Table V-2 displays a DMR Client-to-Allegation ratio calculated for all DMR clients, DMR clients living in CLAs, and DMR clients not living in CLAs. (The latter two add up to the first).

_ The ratio was calculated by dividing the total number of clients in a given category as of June 30 of each year by the number of allegations pertaining to that client category for the same year. The results show how many clients in that category there are for every one allegation. Thus, in 1992, when looking at all DMR clients, there were 12 clients for every one allegation.

• It is unclear why DMR clients living in CLAs appear more likely to be the subject of abuse/neglect allegations than DMR clients not living in CLAs. The fact CLAs are more regulated and have more staff than some settings DMR clients live in might generate increased reporting.

• Each bar in Figure V-1 on the previous page is divided to show the portion of abuse/neglect allegations related to CLA residents compared to all other DMR clients. On average, 34 percent of all abuse/neglect allegations related to CLA residents compared to 66 percent of the allegations involving all other DMR clients.

_ In comparison, on average CLA residents over same period made up 25 percent of all DMR clients. (Again, there may be more incidents prompting allegations pertaining to CLA residents or there may be increased reporting of incidents not reported in other settings.)

• The portion of total abuse/neglect allegations that are subsequently substantiated averaged 35 percent in the 10-year period ending FY 2001.
• Figure V-2 shows the number of abuse/neglect investigations conducted by or under the jurisdiction of the various agencies mentioned in Table V-1.

• Most investigations are conducted by private providers. From FY 2000 through FY 2002, private providers averaged 613 investigations as the primary investigating agency, compared to 379 conducted by DMR (DMR also conducts investigations related to persons 60 or older under the jurisdiction of DSS). OPA in the same time period averaged 314 investigations each year as the primary investigating agency. Some of the DMR investigations may include private provider cases, but the great majority relate to DMR settings.
• Combining the private provider investigations and the DMR investigations gives a rough view of the number of investigations OPA monitors. (The number will be overstated because some of these investigations do not fall under OPA jurisdiction due to type of charge or age of alleged victim.)

CLA Investigations: Separate Tracks for Public and Private

• The largest number of abuse and neglect investigations involve DMR clients living in DMR operated or funded residential placements. Who actually conducts the investigation depends on a number of factors, but for the most part, private providers are required by DMR to conduct investigations of abuse/neglect allegations involving DMR clients living in their homes, while DMR employees investigate allegations at DMR homes. One recent change in the last two years is that any abuse/neglect allegation involving a client death is now always investigated by DMR.
• Separate DMR administration and monitoring structures for investigations conducted by the private sector and DMR have been in place since the mid-nineties at DMR. Until the central office Division of Investigations was created, abuse/neglect investigations were managed primarily out of each region. Now the Division of Investigations is responsible for DMR home investigations, while the regions are still primarily managing the private sector investigations. Just recently (October 2002), DMR created a new central office investigator position within the Division of Investigations to coordinate private sector investigations to parallel its central review process of DMR investigations.

Training

• All DMR employees serving as investigators have completed training on investigating abuse/neglect allegations in DMR settings, either conducted by outside groups or in-house by DMR regional staff. Investigators in the private sector may also participate in those training sessions. More recently, a week-long investigations course taught at the State Police Training Center is offered to both public and private provider investigators, and the ultimate goal of the department is to have all investigators receive the State Police training

Investigation Process

• Figure V-3 sets out the process for investigations at DMR operated CLAs, and Figure V-4 sets out the process for investigations at CLAs operated by private providers. The processes are very similar, and mostly differ by who does the investigations and how those investigations are reviewed within DMR.

DMR Operated CLAs

• The Division of Investigations, located in the DMR central office, is responsible for ensuring the investigation of allegations of abuse/neglect related to group homes operated by DMR. The division, established in 1997, has been headed by a captain of the Connecticut State Police on loan from the Department of Public Safety since May 2000.
• There are five lead investigators in the division, who are physically assigned to regions. They either conduct public investigations themselves or assign and monitor investigations done by DMR employees who are "pool investigators".
• The pool investigators are DMR regional employees who have full-time responsibilities in other areas of the department, but have volunteered to conduct abuse/neglect investigations on a part-time basis. As of November 2002, the regions' pools consist of between 29 to 63 people each. Included in the pool are specialists, such as nurses and psychologists.
• As Figure V-3 shows, the process begins when a report of suspected abuse is made to OPA. OPA gathers preliminary intake information about the allegation, and faxes the intake information --within hours or at most a day of receiving it-- to DMR, specifically the Division of Investigations and the pertinent regional A/N liaison.

_ In addition to the mandated reporter law, DMR policy requires employees to report suspected acts of abuse or neglect to their supervisors immediately. Failing to do so can result in disciplinary action.

_ Supervisors must report any cases involving suspected assault or sexual abuse to the appropriate law enforcement authorities.

• If the person suspected of abuse is an employee, under DMR policy, that person is immediately placed on leave until the conclusion of the investigation.
• In most cases, one or two of the pool investigators will be assigned the investigation. Their completed investigation will be reviewed by a lead investigator and in some regions the abuse/neglect liaisons, and then submitted to OPA unless further investigation is needed.

Private Provider CLAs

• The private provider investigations process for CLAs is intended to be similar to the investigations of DMR-operated homes, with the major difference being that in most cases, private provider personnel conduct the investigations. The other main difference is the oversight of the investigations -- each DMR region has an employee serving as an Abuse/Neglect Liaison, responsible for coordinating and monitoring private provider investigations.

_ In some cases, DMR and/or OPA determine a private provider should not investigate itself. Examples of reasons can include the allegation involves senior agency management, or the allegation is part of a pattern of complaints. In those cases, the Division of Investigations takes responsibility for the case, and either a lead investigator conducts the investigation or it is assigned to the pool investigators.

_ Regional personnel involved with the private provider's contract will be informed of the allegation and investigation.

• As with public home investigations, any private provider employee alleged to have abused a DMR client must be put on administrative leave pending the conclusion of the investigation.
• Once a private provider completes the investigation, the report is usually sent to the A/N liaison for review for completeness, and then to OPA. Sometimes private providers send their reports directly to OPA.

OPA Review

• When OPA receives investigation reports for DMR or private facilities, it reviews them for completeness. OPA will send the report back if additional information is needed. If OPA finds the report complete, it can either agree or disagree with the abuse/neglect finding, as well as make recommendations.
• OPA has a goal of having investigations completed within 60 days after intake, and will send a letter to the DMR liaison inquiring as to the status of the investigation after 60 days. If an adequate response is not forthcoming, OPA writes to the commissioner.
• Table V-3 shows the number of completed monitored investigations by OPA for calendar years 2000 and 2001, and 10 months of 2002. It also shows how often OPA disagrees with DMR/private provider findings of abuse/neglect substantiation.

Table V-3. Number of OPA- Completed Monitored Investigations and Disagreement with Findings
	# of Completed Monitored Investigations	# of disagreements over findings	Percent
CY 2000	898	61	6.9%
CY 2001	637	65	10.2%
CY 2002 (as of 10/1)	715	81	11.32%
Source: Office of Protection and Advocacy for Persons With Disabilities

Investigation Outcomes and Follow-Up

• Any abuse/neglect investigation is to determine whether the allegation of abuse or neglect can be substantiated or not. In addition, other recommendations can be made, if necessary, to address:

_ any client-specific issues, which may include a protective services plan required by OPA, if abuse/neglect are substantiated (a protective service plan is required to prevent any further harm to the individual);

_ any programmatic or administrative issues going beyond the individual client (e.g., safety alerts); and

_ personnel actions, although recommendations specific to individuals are not typically made as part of an investigations report. DMR handles such issues for its CLAs through its human resources processes, and leaves personnel decisions for private providers up to them (except see discussion of Registry below.)

• If OPA determines a protective service plan is needed as a result of any abuse/neglect investigation, it will "refer" the case to DMR, which is required to submit a plan to OPA within 15 days of the referral. OPA then monitors compliance.
• Until March 2002, there was no statewide procedure at DMR setting out who was accountable for ensuring abuse/neglect recommendations were followed and how implementation was to be tracked. It appears there was no requirement for a provider to make a written response to DMR about how it planned to address investigation findings and recommendations.
• Effective March of this year, DMR established a standard statewide monitoring system for abuse/neglect investigation recommendations for both the private and public sectors.

Private CLA Tracking

• For private sector facilities, the regional director is to review all investigation reports. Within seven days after the regional director's review, the A/N liaison is to request from the private provider a written response regarding the status of actions taken on the recommendations. The response is due within 30 days of the request.
• If the provider doesn't respond in the required timeframe, the contract manager is to meet with the provider to determine recommendation compliance status, including insuring a compliance plan is in place if needed.
• Under the new procedure, actual recommendation compliance is monitored through site visits of the contract managers (see Oversight Chapter).
• A new database has been established to facilitate the tracking of recommendation implementation. Upon receipt of the final investigation reports, the regional A/N liaisons are to enter all the recommendations and produce monthly reports on their implementation status. These reports are to go to the regional Quality Improvement director, other division directors, the lead investigator assigned to the region, and the regional director.

Public CLA Tracking

• For public facilities, within seven days after the A/N liaison's (or designee's) review of the completed abuse/neglect investigation, the AN liaison is to request in writing, from the residential manager and the public programs director, recommendations to address the investigation findings. They are to respond in writing within 30 days.
• If the response is not timely, the regional director is notified and a compliance plan will be required.

DMR Registry

• In 1997 the legislature required DMR to establish a registry to identify people who had been fired for either abuse or neglect of a DMR client. The purpose of the registry was so prospective employers would not hire anyone on the list for direct care work. Due to issues of due process (e.g., a person's right to a hearing), the registry has not been used pending acceptance of regulations to address the due process problem.

_ Employers were first requested to submit referrals to the registry in July 1999.

_ As of 8/31/02, 235 names were referred (three people were referred twice).

· Private Sector Referrals: 160 (67.2 percent)

· Public Sector Referrals: 78 (32.8 percent)

_ Of the 235 referrals, there are currently 30 names on the list.

• To use the registry, an employer would contact DMR, and after establishing the employer's identity, DMR would through confidential facsimile transmissions inform the employer if a prospective employee was on the list.

DMR Personnel Actions

• From July 2001 through September 30, 2002, 37 DMR employees were disciplined for either client abuse, client neglect, or client verbal abuse.

_ For client abuse, four employees were fired and one was suspended

_ For client neglect, 26 were disciplined-four were fired, 21 were suspended, and one received a written warning

_ For client verbal abuse, six were suspended.

Sudden/Unexpected Deaths: Special Abuse/Neglect Review

• In March 2002, DMR instituted a new step in its post-death review for sudden or unexpected deaths of DMR clients who lived in DMR residential settings. Described in the Chapter on post-death activities, it is noted here because its main purpose is to determine, as quickly as possible post-death, if there are any suspicions of abuse or neglect that need investigation. If the review indicates a suspicion of abuse or neglect, the case is reported to OPA (if the case falls under its jurisdiction), and goes through the process described above. The reviews are conducted by two nurse investigators.

¹ C.G.S. Sec. 17a-238(b)