Department of Human Services - Office of the Inspector General
Pat Quinn, Governor
Michelle R. B. Saddler, Secretary
William M. Davis, Inspector General
Approved Investigative Protocol for Community Agencies - FY2012
Date Issued: 10/04/01
Revision Dates: 01/01/02; 07/01/02; 04/28/03; 04/29/05; 4/25/07; 5/6/08; 4/29/09; 4/14/10; 04/29/11
Classification Level: UNCLASSIFIED
To establish a uniform policy and describe procedures for community agencies to conduct, upon request by OIG, investigations of alleged abuse, alleged neglect, and deaths, as required in statute and administrative regulation.
- Department of Human Services Act (20 ILCS 1305/1-17)
- Abused and Neglected Long Term Care Facilities Residents Reporting Act (210 ILCS 30/6)
- Section 7.3 of the Mental Health and Developmental Disabilities Administrative Act (20 ILCS 1705/7.3)
- Illinois Administrative Code, Title 59, Chapter I, Part 50 (herein referred to as "Rule 50")
- Nursing Home Care Act (210 ILCS 45/)
- Section 25 of the Health Care Worker Background Check Act (225 ILCS 46/25)
- Article 11, Section 11-9.5 of the Illinois Criminal Code of 1961, Sexual Misconduct with a Person with a Disability (720 ILCS 5/11-9.5)
- Mental Health and Developmental Disabilities Code (405 ILCS 5/)
- Freedom of Information Act (5 ILCS 140)
- AIDS Confidentiality Act (410 ILCS 305)
- MHDD Confidentiality Act (740 ILCS 110)
- Substance Abuse Confidentiality (42 CFR 2)
State law authorizes the Office of the Inspector General to promulgate rules establishing minimum requirements for reporting and conducting investigations into alleged abuse/neglect. These rules, known as "Rule 50," and related laws specify the following policies.
- Each community agency shall have an updated abuse/neglect reporting policy that includes, but is not limited to:
- The Rule 50 definitions, including that an employee engaging in sexual conduct with a program resident who has a disability is committing a felony offense regardless whether it was consensual or not;
- This prohibition does not apply if the employee was already married to the person or was unaware (and had no reason to know) the person was receiving services.
- A convicted person must register as a sex offender and is prohibited from employment in any health care setting.
- A prohibition against screening, including that intentional failure to report or intentional late reporting is a Class A misdemeanor offense;
- The time frames for reporting for alleged abuse/neglect and for deaths reportable under Rule 50;
- The preservation of evidence;
- A requirement for at least biennial training of all employees (which includes owners/operators, contractual workers, subcontractors and volunteers) in Rule 50: and
- Retaliatory action against an employee who acts in good faith in conformance with his or her duties as a required reporter is a violation of section 1-17(k)(3) of the DHS Act.
- The Rule 50 training should include, but not be limited to, the fact that identities of employees with substantiated physical abuse, sexual abuse, or egregious neglect may be referred to the Department of Public Health's Health Care Worker Registry.
- Referral to the Registry applies to all employees (which includes owners/operators, contractors, subcontractors, and volunteers).
- Listing on the Registry prohibits a person from being employed in providing, administering, or monitoring services at any state funded, certified, or licensed program site.
- An appeals process is available (Rule 50.90), and OIG cannot refer a name until the appeal or any other collateral action initiated by the employee or union is concluded.
- After the name of a person is referred to the Registry, he or she may request removal using the 50.100 appeals process no more than once every twelve month period.
- External reporting:
- If, at any point, credible evidence of a possible criminal act is found, the community agency shall notify the appropriate law enforcement authorities immediately, but no later than 4 hours after such discovery, and shall notify OIG of that and any report/complaint numbers(s) within one working day.
- If the final report indicates possible misconduct by a licensed health care professional, the Department of Human Services shall report it to the Illinois Department of Financial and Professional Regulation promptly.
- Incident Response: The executive director of each agency (herein referred to as the "authorized representative") is responsible for taking immediate action deemed necessary to protect individuals from danger or harm, notifying appropriate entities, or taking any other administrative action deemed necessary, unless otherwise directed by OIG. Prior approval must be obtained from OIG before conducting a full investigation into any alleged incident of abuse or neglect.
- Pursuant to statute, no community agency may conduct any abuse or neglect investigation without first obtaining protocol authorization from OIG and then receiving specific approval to investigate on a case-by-case basis. Authorization requires submitting all requested information and adoption of this Protocol as agency policy.
- The authorized representative shall ensure that trained, qualified staff are responsible for carrying out the duties set forth in this Community Agency Investigative Protocol.
- Annual Review Process
- Annual Application: Each community agency desiring to conduct investigations must apply for and obtain authorization from the OIG Protocol Coordinator.
- Since authorization is only for one fiscal year, the community agency must submit an annual application every fiscal year.
- The annual application requires the authorized representative's signature and the community agency's adoption of this Community Agency Investigative Protocol to govern all investigations under Rule 50.
- OIG Liaison: Each authorized representative shall designate one employee as the community agency's OIG Liaison. The liason may also be an investigator.
- This employee must have successfully completed OIG-conducted Rule 50 training within two years of the start of the fiscal year for which the community agency is seeking authorization.
- Once designated, the employee must successfully complete the OIG-conducted Rule 50 training no less frequently than once every two years.
- Agency Investigators: Each authorized representative shall designate at least one full-time agency employee as an agency investigator. The investigator may also be the OIG Liaison.
- Initial authorization
- Each designated investigator must have successfully completed either of the two options below within two years of the start of the fiscal year for which the community agency is seeking authorization:
- Both the OIG-conducted Rule 50 and Basic Investigative Skills (BIS) training; OR
- OIG-conducted Investigative Skills Refresher (if the prerequisites of Rule 50 and Basic Investigative Skills have been met).
- Approval for training: Registration for OIG Rule 50 training requires no approval, but those registering for Basic Investigative Skills require prior approval by the OIG Protocol Coordinator.
- The potential registrant must be in a position that does not create any appearance of a conflict of interest. To determine this, the following information is required for each registrant:
- Full name and date of birth (for identification);
- Job title and detailed description of job duties;
- Areas of supervision, if any;
- Name and job title of immediate supervisor; and
- Name of the community agency.
- The potential registrant must be an employee who is or will be designated as an agency investigator or the OIG Liaison.
- OIG's approval for attending BIS training is on a case-by-case basis, and OIG has sole discretion over who may register for BIS training. OIG may allow authorized representatives to attend as space allows, for the purpose of learning the investigative responsibilities expected of designated agency investigators.
- Prohibited persons: Due to potential conflicts of interest, the following persons are prohibited from being approved as agency investigators in cases of alleged abuse/neglect or death:
- The authorized representative, assistant executive director, human resource director, or any family member of these;
- Any person who has a substantiated finding of abuse or neglect against him/her; and
- Any other person who OIG determines has a potential conflict of interest.
- OIG makes the final decision regarding qualifications and authorizations of investigators. Employees who are trained after the community agency receives approval must apply separately.
- Maintaining investigative authorization
- To maintain eligibility for investigative authorization, an investigator must attend training within two years prior to the start of the fiscal year for which the agency is applying:
- OIG-conducted Rule 50 and Basic Investigative Skills; or
- OIG's Investigative Skills Refresher.
- No investigative functions shall be performed by an investigator whose authorization has lapsed. In the event that an investigator's authorization lapses, authorization may be renewed by attending OIG-conducted Rule 50 and Basic Investigative Skills training and then reapplying for authorized status.
- If an authorized investigator's job title and/or duties change, it is the agency's responsibility to immediately notify the OIG Protocol Coordinator in writing and to ensure that there is no appearance of a conflict of interest.
- Incident Management
- Immediate actions: If an allegation of abuse or neglect is within the jurisdiction of OIG, the authorized representative or designee shall ensure the immediate care and protection of the victim and other individuals, including the following.
- Request emergency response when necessary.
- When a medical emergency exists, immediately contact 911 for assistance;
- When law enforcement assistance is needed, immediately contact the local law enforcement authority; and
- In the event that there is an allegation of any type of physical injury, sexual assault or any situation where a victim's health is in question, immediately seek appropriate professional medical attention.
- Obtain medical examinations for all injured individuals and fully document the findings.
- Remove the accused employee from having contact with all indivdiuals when there is credible evidence supporting the allegation of abuse.
- Ensure that OIG is notified (Hotline number is 800-368-1463).
- First response: Unless otherwise directed by OIG, the authorized representative shall ensure the securing of the scene of the incident, when applicable, which involves cordoning off the area where the incident occurred to prevent access to and/or the removal of objects from that area. The agency will consult OIG in the event there are any questions about this activity.
- The agency shall immediately secure the scene whenever there is physical or visual evidence which may assist in the investigation.
- When the scene needs to be secured, nothing in the scene shall be altered until directed to do so by the investigating body (i.e., floors shall not be washed, furniture and other objects shall not be touched or moved, etc.).
- The agency shall identify and separate potential witnesses, when applicable.
- Unless the agency is directed otherwise by law enforcement or by OIG, the authorized representative shall ensure that the following preliminary steps of the investigation are initiated by an authorized investigator.
- Collect all relevant evidence and place it in an appropriate container (e.g., paper bag or envelope).
- Prior to the collection of evidence, the evidence will be photographed and/or diagramed prior to the evidence being moved so that its initial placement is documented.
- In the event of the need to collect any item of evidence on which suspected blood or other fluids are present, the agency investigator shall place these items in a paper bag. Under no circumstances shall they ever be placed in a plastic bag.
- When the allegation is a question of sexual abuse, the agency investigator shall immediately contact the appropriate law enforcement agency or OIG prior to the collection of any such evidence and then, unless directed otherwise, shall:
- Strongly encourage the victim not to shower or bathe, as this might destroy evidence which could be obtained during a medical examination;
- Collect the clothing of the victim and place each item in a separate paper bag; and
- If the sexual abuse occurred on a bed or other like item, then roll the sheets together and place them in a paper bag.
- Copy and impound relevant documents, as appropriate.
- Original documents shall be impounded in suicides, deaths with questionable circumstances, and any other cases in which the original documents themselves may be evidence in the investigation. The chain of custody must be maintained.
- Otherwise, copying documents is sufficient, and the chain of custody is not relevant. If in doubt, the agency investigator shall consult OIG.
- Maintain all collected physical evidence in a secure space. This may be a locked filing cabinet, safe, locker, or room where access is limited. It is important that no one have access to the evidence except the agency investigator. The chain of custody must be maintained and documented for all physical evidence collected.
- Annotate, on a label that is then affixed to the back of each photograph, identifiers including the following:
- Name of area/object or victim;
- Location of the area/object or injury;
- Date and time of the photograph;
- Name of the person taking the photograph; and
- OIG case number, when known.
- Injuries: When injuries are the result of alleged abuse or neglect, even if the injury is not evident at the time of report/discovery, the agency investigator shall ensure that these injuries or the areas where the victim states they are injured are photographed immediately.
- Do not photograph the victim without his/her consent or the consent of the guardian.
- Consider the individual's privacy. Further, no photograph shall be taken of the genital area or of a female's breast unless absolutely necessary. If necessary, only the immediately injured area shall be photographed and other areas shall be covered. The photographs shall be taken by a person of the same gender as the alleged victim.
- Photograph the area first with a ruler, and then without a ruler. Always include an identifying photo, one which shows both the alleged victim's face and injury site in the same photograph.
- If bruising is present, ensure the photographs are clear and reflect the color of the bruise. Also document the color and the size of the bruise.
- Prior to entering an incident scene which needs to be photographed, photograph the overall scene. This can be accomplished by taking a photograph as the investigator enters the incident scene and from several different angles within the incident scene.
- When possible, photograph objects exactly as found and from different angles, including an overhead perspective if possible. Photograph the object with a ruler or other standard-sized item placed next to the object as a reference to size.
- When an agency investigator is initially collecting items as evidence, unless the item has already been photographed in its initial location, the agency investigator will sketch a diagram to show the spatial relationships between the evidence and the other items in the room. This diagram can be placed on a plain sheet of white paper, but should include the name of the investigator, time and date drawn and the area it depicts.
- When an agency investigator is conducting an interview of a person which concerns the placement of people or items, the agency investigator should consider collecting a diagram from each witness. This will assist in the recall by the interviewee, but will also aid as a comparison of one person's statement of location with others.
- Victim/guardian notification: After receiving notification from OIG of an allegation of abuse or neglect, the authorized representative or designee shall notify the victim and his/her legal guardian (if applicable) of the allegation within 24 hours. If unable to reach the guardian by phone, the authorized representative or designee shall send a letter of notification within 24 hours.
- Assignment: OIG shall determine within one working day who shall have primary responsibility for the investigation. When OIG initially determines that an agency has primary responsibility for the investigation, OIG retains the right to take primary responsibility back at any time.
- Interviews for written statements
- Statements and interviews
- When possible, all witnesses shall be separated until an initial statement can be taken.
- In addition to initial written accounts that may be required of staff present at the time of an alleged incident, agency investigators shall conduct interviews for the purpose of obtaining detailed statements.
- Any person having knowledge about the allegation or the incident should be interviewed.
- Conducting an interview
- Ideally, an interview and written statement should be obtained immediately upon the report of an allegation. If it is impossible to conduct the interview immediately, then the agency investigator shall require that staff member write a statement. The agency investigator should then complete an interview as soon as possible.
- Interviews shall occur in a location that is quiet, private and free from distractions.
- Every interview shall cover the elements of the offense and the basic questions of who, what, when, where, why and how.
- Representation during interviews: An employee may request representation at an interview if he or she has reasonable grounds to believe that the interview may be used to support disciplinary action or some other adverse employment action against him or her. If the investigator denies the request and the request is based upon a reasonable fear of discipline, the employee's statement may not be used in any subsequent disciplinary proceeding against that employee. The authorized representative or designee that employs the interviewee does not have the right to be present at an investigative interview.
- Objectivity and integrity
- The agency shall ensure that there is an absence of real or apparent conflict of interest or bias by the statement taker or investigator.
- No person identified in the "prohibited persons" section shall conduct, direct, or otherwise be involved in investigations into alleged abuse/neglect or deaths at the community agency.
- Under no circumstances is an interview to be conducted by a person from the unit or office where the incident occurred or by an employee in the same collective bargaining unit as the person(s) involved.
- If at any time, there appears to be a conflict of interest, the agency investigator or authorized representative shall consult with OIG to determine responsibility for conducting the investigation.
- Investigatory Materials: When OIG requests documents related to an investigation, the OIG Liaison or agency investigator shall respond within the time frame designated by OIG, unless there are extenuating circumstances. In such case, OIG will set a new time frame for the documents to be submitted.
- Final report
- Investigative report: The agency investigator shall submit a written report of the investigation to OIG within 60 working days of accepting primary responsibility for the investigation unless there are extenuating circumstances. This investigative report shall include the following:
- A narrative summary of the investigation;
- A statement as to whether the findings of the investigation should be substantiated, unsubstantiated, or unfounded; and
- Indicate mitigating and/or aggravating circumstances, if any;
- Any actions taken by the community agency as a result of the case.
- Investigative file: The investigative case file shall be submitted to OIG along with the report. It shall contain the investigative report and all investigatory materials, including all evidence, such as photographs, interview statements and records
- OIG review
- In all cases where OIG determines that the investigation substantiates the allegation or identifies other administrative issues, OIG will send a Written Response form to the agency. The agency is to complete the form and send it to the appropriate DHS program division administrator within 30 calendar days of the date of the OIG letter.
- After receiving a letter from OIG with notification of acceptance of the final report, the authorized representative or designee shall inform the individual and his/her guardian (if applicable) whether the allegation was substantiated, unsubstantiated or unfounded. If the authorized representative or designee is unable to reach the guardian by phone, a letter of notification shall be sent within 24 hours.
- Protected health information
- Protected health information and personally identifiable information may be released to OIG, pursuant to the HIPAA exception in, 45 CFR, Part 164 (§164.512(f)(1)), when OIG determines it is relevant to an abuse/neglect investigation. This includes access to living areas, treatment records, and any other protected information that OIG believes to be pertinent to an investigation.
- Information on diagnosis and treatment for alcohol or drug abuse shall be disclosed to OIG only in accordance with federal regulations.
- Information on tests for human immunodeficiency virus (HIV) and diagnosis and treatment for acquired immune deficiency syndrome (AIDS) shall be disclosed to OIG only in accordance with the AIDS Confidentiality Act.
- Investigative information
- The identity of any person as the complainant shall remain confidential, in accordance with the Freedom of Information Act, unless:
- The person is an employee and is reporting as a representative of the community agency;
- The person authorizes release in writing; or
- A valid court order requires release.
- Every allegation or investigation of alleged abuse/neglect shall remain confidential until a final report is completed and approved by OIG.
- Final reports
- Final reports of substantiated investigations shall be released only in accordance with 20ILCS 1305, Section 1-17(m) of the DHS Act, Section 6 of the Abused and Neglected Long Term Care Facility Residents Reporting Act, federal confidentiality statutes, the Illinois Mental Health and Developmental Disabilities Confidentiality Act, the Freedom of Information Act, or a valid court order.
- Final reports of unsubstantiated or unfounded allegations shall remain confidential except that final reports shall be released pursuant to Section 6 of the Abused and Neglected Long Term Care Facility Residents Reporting Act (210 ILCS 30), Section 1-17 of the Department of Human Services Act (20 ILCS 1305), or a valid court order.
William M. Davis, Inspector General
Date: April 29, 2011