Department of Human Services - Office of the Inspector General
Pat Quinn, Governor
Michelle R. B. Saddler, Secretary
Michael J. McCotter, Inspector General
Approved Investigative Protocol for Community Agencies - 2014 & 2015
Date Issued: 10/04/01
Revision Dates: 01/01/02, 01/01/02, 04/28/03, 04/29/05, 04/25/07, 05/06/08, 04/29/09, 04/14/10, 04/29/11, and 10/30/13
Classification Level: UNCLASSIFIED
To establish a uniform policy and describe procedures for community agencies to perform the required preliminary steps of an investigation of abuse or neglect or to conduct full investigations of alleged abuse (including financial exploitation) or neglect 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)
- 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)
- 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:
- Every agency must comply with Rule 50, section 50.30(f), by designating at least one employee who will perform the preliminary steps of the investigation. That employee must be trained by OIG in the OIG-approved methods to gather evidence and documents.
- Every agency in good standing with OIG will be afforded an opportunity to enlist in the Community Agency Investigative Protocol Program which is governed and overseen by the Office of the Inspector General for the purpose of conducting full investigations into allegations of abuse and/or neglect in partnership with OIG.
If the community agency elects to opt out of the offered Community Agency Investigative Protocol Program, they must indicate so on the biennially distributed Protocol Authorization Application form. These agencies must still conform to the requirements outlined in Rule 50, section 50.30(f) which are:
- These agencies must designate at least one employee to be trained by OIG in the OIG-approved methods to gather evidence and documents. The Authorized Representative must ensure that this (these) agency employee(s) represent no conflict of interest.
- This (these) agency employee(s) must perform the preliminary steps of an investigation to include: securing the scene, collecting and preserving evidence, photographs, diagrams and obtaining written statements.
- This (these) agency employee(s) must attend the OIG Basic Investigative Skills training program, Phase 1.
- The authorized representative or designee shall ensure the immediate care and protection of the victim and other individuals and shall ensure immediate reporting as appropriate.
- Request emergency response when necessary.
- When a medical emergency exists, immediately contact 911 for assistance;
- When law enforcement assistance is needed, immediately contact the law enforcement agency which would provide the most timely response; and
- In the event of any allegation of abuse or neglect or any situation where a victim's health is in question, the agency shall immediately seek appropriate professional medical attention.
- Ensure that OIG is notified (Hotline number is 800-368-1463) as required.
- When there is credible evidence of a potential criminal act, the Agency shall report and document same to local Law Enforcement when requested by OIG.
- Absent a request from OIG, the agency may contact local Law Enforcement at their discretion.
- The authorized representative shall also remove alleged accused employee(s) from having contact with all individuals at the facility when there is credible evidence supporting the allegation of abuse pending the outcome of any further investigation, prosecution or disciplinary action against the employee.
- Unless otherwise directed by OIG, the authorized representative shall ensure that these preliminary steps of the investigation are initiated by an OIG authorized agency investigator, (see below) or an agency employee who has been trained in the OIG-approved methods to gather evidence and documents and for whom there is no conflict of interest. This may include the following:
- Securing the scene of the incident, when applicable. This involves cordoning off the area, preventing access to the area, and preventing the removal of objects from the area where the incident occurred.
- The designated trained employee shall secure the scene whenever there is the probability of physical or visual evidence which may assist in the investigation.
- When the scene needs to be secured, nothing in the scene will be altered until directed to do so by the investigator responsible for the scene (i.e., floors shall not be washed, furniture and other objects shall not be touched or moved, etc.).
- The agency will consult OIG in the event there are any questions about this activity.
- Securing all relevant physical evidence. After securing the scene, unless the agency is directed otherwise by law enforcement or OIG, the agency designated trained employee shall do the following:
- Prior to the collection of evidence, the evidence in question will be photographed and/or diagrammed.
- Collect all relevant evidence and place it in an appropriate container.
- An appropriate container is a paper bag, an envelope, or a cardboard box.
- Be sensitive to evidence contamination. Bare hands contaminate. Use gloves and/or tongs to pick up evidence.
- Secure the paper bag, envelope, or cardboard box with tape and/or staples.
- Complete the evidence log, and maintain the "chain of custody."
- When the allegation is a question of sexual abuse, involving the possible exchange of bodily fluids, the agency shall 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;
- If the sexual abuse occurred on a bed or other like item, then roll the sheets together and placed them in an appropriate container (e.g. large paper bag or cardboard box).
- When applicable, identify and separate accused staff and any potential witnesses until an initial written statement is provided or an interview can be conducted by an OIG authorized agency investigator.
- Copy and impound relevant documents, as appropriate.
- Original documents shall be impounded in cases such as suicides, deaths with questionable circumstances, and in any other cases which the actual original documents themselves may be evidence in the investigation.
- Otherwise, copying documents is sufficient. If in doubt, the agency shall consult OIG.
- Maintain all collected evidence in a secure space. This may be a locked filing cabinet, safe, locker, or room where access is limited. The chain of custody must be maintained and documented for all evidence collected.
- Notify OIG within one working day of the existence of collected evidence. Then transfer custody of all evidence as soon as is possible to the OIG or law enforcement entity responsible for the investigation.
- Take photographs
- Prior to photographing an individual, consent shall be obtained from the individual and/or their guardian.
- All photographs should be labeled as follows and listed on the photograph log. 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.
- Number photographs in series (e.g., 1 of __, 2 of __, etc.)
- Photographing injuries: Whenever an allegation of abuse or neglect is received alleging an injury, the designated OIG trained agency employee shall photograph the site of the alleged injury, whether or not the injury is visible.
- If an individual refuses to allow a photograph upon an allegation, the agency shall instead obtain a physician's or nurse's, thorough description of the injury documented on an Injury Report.
- Always include an identifying photograph showing the injury along with the identity of the injured person in the same photograph; denote that on the photo log.
- Consider the individual's privacy in all photographs. Further, no photograph shall be taken of the genital area or of a female's breast unless absolutely necessary for evidentiary purposes. If necessary, only the injured area shall be photographed and other areas shall be covered. While the agency has discretion on who photographs these injuries, due to the personal/sensitive nature of these photographs, OIG recommends that a medical professional be considered. A witness should be present during the photo session, preferably of the victim's choosing.
- Photograph the injured area first with an item of standard measurement (e.g., a ruler, dollar bill, or quarter) and then without that item; denote that on the photo log.
- If bruising is present, ensure the photographs are clear and reflect the color and size of the bruising. Also, document in writing, the color and size of the bruising. If the photograph is not taken immediately after the alleged incident occurred, denote that on the photo log.
- If an alleged injury is not visible immediately, subsequent checks should be made at reasonable time intervals. If the injury does become visible, photographs should be taken of the now visible injury, being certain to note the date and time of the subsequent photographs.
- Photographing areas/objects
- 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 designated OIG trained employee 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 initially collecting items as evidence, unless the item has already been photographed in its initial location, the designated trained employee shall 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 it shall include the name of the employee, time and date drawn and the area it depicts.
- Objectivity and integrity
- The agency shall ensure that there is an absence of real or apparent conflict of interest or bias by the designated OIG trained employee or the OIG authorized agency investigator.
- No person identified in the "prohibited persons" section shall assist in conducting interviews or otherwise be involved in investigations into alleged abuse/neglect or deaths at the agency.
- Investigatory materials
- When OIG requests documents related to an investigation, the OIG Liaison or facility 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.
When the agency elects to join the Community Agency Investigative Protocol Program, it must apply and be approved by the OIG Protocol Coordinator.
C. Biennial application process
- Biennial application: Each authorized representative must ensure that at least one (1) agency employee is assigned to assist with abuse/neglect investigations. A record of such employee(s) must be submitted to the OIG Protocol Coordinator at the beginning of each protocol period on the prescribed application form.
- Since authorization is only for two years, the agency must submit a renewal application each protocol period.
- The application requires the authorized representative's signature and the agency's adoption of this Investigative Protocol to govern all investigations under Rule 50.
- OIG Liaison: Each authorized representative shall designate one employee as the agency's OIG Liaison. That employee may also be an investigator.
- This employee must have successfully completed OIG-conducted Rule 50 training within two years of the start of the calendar year for which the agency is seeking authorization.
- Once designated, the employee, if listed solely as the agency liaison, must successfully complete the OIG-conducted Rule 50 training no less frequently than once every two years.
- If dually listed as the agency liaison and an agency investigator, then the employee must successfully complete the OIG-conducted Investigative Skills Refresher training once every two years in lieu of the OIG conducted Rule 50 training.
- OIG authorized agency investigators: Each authorized representative shall designate at least one full-time employee as an agency investigator.
- Investigator Training
- Each designated investigator must have successfully completed either of the two options below within two years of the start of the calendar year for which the agency is seeking authorization:
- Initial authorization requires both the OIG-conducted Rule 50 training and Basic Investigative Skills (BIS) Phase 1 and 2; 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; however, registration for Basic Investigative Skills training requires prior approval by the OIG Registrar.
- The 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 agency.
- The registrant must be an employee who is or will be designated as an OIG authorized 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.
- Maintaining eligibility for investigative authorization
- To maintain eligibility for investigative authorization, an investigator must attend either of the training options below within two years of his/her investigative training anniversary date:
- OIG-conducted Rule 50 and Basic Investigative Skills, Phase 1 and 2; or
- OIG's Investigative Skills Refresher.
- If the investigator fails to maintain the two year training requirement, his/her authority to perform investigative functions at the agency will be suspended. If the investigator does not complete the OIG investigative Skills Refresher training for a period of 6 months while under suspension, the investigator will be expelled from the program. If expelled from the program the investigator would have to repeat the initial training requirements for authorization and re-apply for authorization.
- Investigative authorization
- The authorized representative must submit the name of each employee designated to be an OIG authorized agency investigator.
- Each employee's job title, responsibilities, training dates, and name and title of his/her supervisor must be listed.
- The original application form must be signed by the authorized representative and forwarded to: OIG Protocol Coordinator, Elgin Mental Health Center, 750 S. State Street, Elgin, IL 60123, if mailed, or may be electronically sent.
- Once the application is received, OIG either approves or denies authorization for each proposed investigator.
- If approved, investigative authorization is for that protocol period.
- No investigative function, other than the preliminary steps of the investigation as outlined in section 50.30 (f) of Rule 50, shall be performed on abuse/neglect cases by anyone who is not an OIG authorized investigator.
- Prohibited persons: Due to potential conflicts of interest, the following persons are prohibited from being approved as agency investigators for the purpose of assisting in investigations of alleged abuse/neglect or death, or conducting the same;
- The authorized representative, assistant agency director, personnel, labor relations staff, or any family member of these; and
- Any person who has a substantiated finding of abuse or neglect against him/her.
- Any other person who OIG determines has potential conflict of interest.
- OIG makes the final decision regarding qualifications and authorizations of investigators. Employees who are trained after the agency receives approval must apply separately.
- If an authorized investigator's job title and/or duties change, the OIG p Protocol Coordinator must be notified. It is the agency's responsibility to ensure that there is no appearance of a conflict of interest.
- OIG reserves the right to revoke the authorization of an investigator, or agency, at any time.
In addition to conducting the preliminary steps of an investigation, an OIG authorized agency investigator shall conduct initial interviews on all cases of abuse or neglect unless specifically instructed otherwise by OIG. The OIG authorized agency investigator may also conduct follow-up interviews, write the investigative report and recommend the investigative finding for cases which OIG has designated the agency as the primary investigative entity.
D. Written statements and investigatory interviews
When possible, all witnesses shall be immediately separated after an incident of abuse or neglect, until an initial statement can be obtained.
In addition to initial written statements that may be required of staff present at the time of an alleged incident, OIG authorized agency investigators shall conduct interviews for the purpose of obtaining detailed written statements.
Conducting an interview
- When possible, all witnesses shall be immediately separated after an incident of abuse or neglect, until an initial statement can be obtained.
- In addition to initial written statements that may be required of staff present at the time of an alleged incident, OIG authorized agency investigators shall conduct interviews for the purpose of obtaining detailed written statements.
- Conducting an interview
- Any person having knowledge about the allegation or the incident shall be interviewed.
- 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 fundamental investigative questions of who, what, when, where, why and how from each interviewee.
- When an OIG authorized agency investigator is conducting an interview of a person which concerns the placement of people or items, the agency investigator may collect 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.
- Under no circumstances is an interview to be conducted by an OIG authorized agency investigator who is from, or supervises, the unit or office where the incident occurred or is in the same collective bargaining unit as the person(s) involved.
- Under no circumstances should an investigatory interview be conducted by any employee other than an OIG authorized agency investigator.
- Representation during interviews:
- Interviewees may request representation at an investigatory interview if he or she has reasonable grounds to believe that the interview may be used to support disciplinary action against him or her. If the OIG authorized investigator denies the request, the employee's statement may not be used in any subsequent disciplinary proceeding against that employee.
- No representative of the agency that employs the interviewee may be present at an investigatory interview.
- No person, including the union representative, has the right to interfere with or obstruct an investigatory interview.
E. Written report
- Investigative report: The OIG authorized 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
- In substantiated cases, 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 treatment records, and any other protected information that OIG believes to be pertinent to an investigation. All protected health information should be communicated to and from OIG in a secure protected manner. If email is utilized all personal health information or personally identifiable information in the body of the email or attached to the email must be encrypted.
- Information on diagnosis and treatment for alcohol or drug abuse shall be disclosed to OIG only in accordance with federal regulations at 42 CFR 2.
- 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 [410 ILCS 305/].
- Investigative information
- The identity of any person as the complainant shall remain confidential, in accordance with the Freedom of Information Act [5 ILCS 140/], unless:
- The person is a required reporter as defined in Rule50 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 20 ILCS 1305, Section 1-17(m) of the DHS Act, Section 6 of the Abused and Neglected Long Term Care Facility Residents Reporting Act [210 ILCS 30], 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.