Department of Human Services - Office of the Inspector General

Pat Quinn, Governor
Michelle R.B. Saddler, Secretary
Michael J. McCotter, Inspector General


DHS Facility Investigative Protocol for Calendar Years 2014 & 2015

DATE ISSUED: 12/24/07

REVISION DATE: 10/26/10, 11/15/11, and 10/30/13

CLASSIFICATION LEVEL: UNCLASSIFIED

I. PURPOSE

To establish a uniform policy and describe procedures for DHS-operated facilities to assist, unless directed not to by OIG, in conducting investigations of abuse, (including financial exploitation), neglect and deaths, as required in statute and administrative regulation.

II. AUTHORITY

  • Department of Human Services Act (20 ILCS 1305/1-17)
  • 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)
  • Section 11-9.5 of the Illinois Criminal Code of 1961, Sexual Misconduct with a Person with a Disability (720 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)
  • Department of Human Services Program Directive 02.01.06.010, "Prevention of Abuse and/or Neglect of Individuals"
  • Department of Human Services Program Directive 02.01.06.020, "Reporting and Investigating Incidents and Allegations of Abuse and Neglect"

III. POLICY

The policies and procedures in Program Directives 02.01.06.010 and 02.01.06.020 are incorporated by reference. The procedures herein are intended to further specify requirements for investigations in the DHS operated facilities providing mental health or developmental disability services.

IV. PROCEDURES

  1. Biennial Review Process
    1. Biennial application: Each authorized representative must ensure that at least one (1) facility 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 new protocol period on the prescribed application form and who shall be herein referred to as the OIG authorized facility investigator.
      1. Additionally, at the authorized representative's discretion, he/she may also designate other employees who will be utilized to fulfill the obligations and requirements of Rule 50, section 50.30 (f), who need not be on record with OIG's Protocol Coordinator.
        1. Since authorization is for a two year period, the facility must submit a biennial renewal application each new protocol period.
        2. The application requires the authorized representative's signature and the facility's adoption of this Investigative Protocol to govern all investigations under Rule 50.
    2. OIG Liaison: Each authorized representative shall designate one employee as the facility's OIG Liaison. The employee may also be an OIG authorized facility investigator.
      1. This employee must have successfully completed OIG-conducted Rule 50 training within two years of the start of the calendar year for which the facility is seeking authorization.
      2. This employee must be free from any substantiated finding of abuse or neglect as determined by the OIG.
      3. Once designated, the employee, if listed solely as the facility liaison, must successfully complete the OIG-conducted Rule 50 training no less frequently than once every two years.
      4. If dually listed as the facility liaison and a facility 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.
    3. Facility investigators: Each authorized representative shall designate at least one full-time employee as a facility investigator.
      1. Investigator training
        1. Each designated investigator must have successfully completed either of the two options below within two years of the start of the protocol period for which the facility is seeking authorization:
          1. Initial authorization requires both the OIG-conducted Rule 50 training and Basic Investigative Skills (BIS) Phase 1 and 2; or
          2. OIG-conducted Investigative Skills Refresher (if the prerequisites of Rule 50 and Basic Investigative Skills have been met).
        2. Approval for training: Registration for OIG Rule 50 training requires no approval; however, registration for Basic Investigative Skills training, Phase 2, requires prior approval by the OIG Registrar.
          1. 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:
            1. Full name and date of birth (for identification)
            2. Job title and detailed description of job duties
            3. Areas of supervision, if any;
            4. Name and job title of immediate supervisor; and
            5. Name of facility.
          2. The registrant must be free from any substantiated findings of abuse or neglect as determined by the OIG.
          3. The registrant must be an employee who is or will be designated as a facility investigator or the OIG Liaison.
          4. OIG's approval for attending BIS training, Phase 2, is on a case-by-case basis, and OIG has sole discretion over who may register for BIS training, Phase 2. OIG may allow authorized representatives to attend as space allows, for the purpose of learning the investigative responsibilities expected of designated facility investigators.
      2. Maintaining eligibility for investigative authorization
        1. 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:
          1. OIG-conducted Rule 50 and Basic Investigative Skills, Phase 1 and 2; or
          2. OIG's Investigative Skills Refresher.
        2. If the investigator fails to maintain the two year training requirement, his/her authority to perform investigative functions at the facility 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.
        3. If the authorized representative has chosen to designate additional employees who will be utilized to assist with the obligations and requirements of Rule 50, section 50.30(f), but not act as OIG authorized facility investigators, they must successfully complete Phase 1 of the Basic Investigative Skills training class. It is not necessary to list these employees on the Facility's Protocol Authorization Form.
      3. Investigative authorization
        1. The authorized representative must submit the name of each employee designated to be an OIG authorized facility investigator.
        2. Each employee's job title, responsibilities, training dates, and name and title of his/her supervisor must be listed.
        3. 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.
        4. Once the application is received, OIG either approves or denies authorization for each proposed investigator.
          1. If approved, investigative authorization is for that protocol period.
          2. 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 facility investigator.
        5. Prohibited persons: Due to potential conflicts of interest, the following persons are prohibited from being approved as facility investigators for the purpose of assisting in investigations of alleged abuse/neglect or death;
          1. The authorized representative, assistant facility director, assistant hospital administrator, personnel, labor relations staff, or any family member of these; and
          2. Any person who has a substantiated finding of abuse or neglect against him/her.
          3. Any other person who OIG determines has potential conflict of interest.
        6. OIG makes the final decision regarding qualifications and authorizations of investigators. Employees who are trained after the facility receives approval must apply separately to receive investigative authorization.
        7. If an authorized investigator's job title and/or duties change, the OIG Protocol Coordinator must be notified. It is the facility's responsibility to ensure that there is no appearance of a conflict of interest for any employee to function as an OIG authorized investigator, or to assist with the preliminary steps of the investigation as outlined in Rule 50, section 50.30(f).
        8. OIG reserves the right to revoke the authorization of an investigator at any time.
  2.  Incident management
    1. Immediate actions: 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.
      1. Request emergency response when necessary.
        1. When a medical emergency exists, immediately initiate the facility's internal procedures while ensuring that 911 is also called.
        2. When law enforcement assistance is needed, immediately contact the law enforcement agency which would provide the most expedient response; and
        3. In the event of any allegation of abuse or neglect or any situation where a victim's health is in question, the facility shall immediately seek appropriate professional medical attention.
      2. Ensure that OIG is notified (Hotline number is 800-368-1463) as required. OIG is the primary DHS liaison to the Illinois State Police (ISP) and will report to ISP when there is credible evidence of a criminal act. However, the facility shall report to ISP when requested by OIG.
      3. The authorized representative shall also remove 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.
    2. Initial response: Unless otherwise directed by OIG, the authorized representative shall ensure that these preliminary steps of the investigation are initiated by an OIG authorized facility investigator, or by employees who will be utilized to assist with the obligations and requirements of Rule 50, section 50.30(f).
      1. Secure 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.
        1. The OIG authorized facility investigator, or additionally trained employee, shall secure the scene whenever there is the probability of physical or visual evidence which may assist in the investigation.
        2. 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.).
        3. The facility will consult OIG in the event there are any questions about this activity.
      2. Securing all relevant physical evidence. After securing the scene, unless the facility is directed otherwise by law enforcement or OIG, the OIG authorized facility investigator, or additionally trained employee(s), shall do the following:
        1. Prior to the collection of evidence, the evidence in question will be photographed and/or diagrammed.
        2. Collect all relevant evidence and place it in an appropriate container.
          1. An appropriate container is a paper bag, an envelope, or a cardboard box.
          2. Be sensitive to evidence contamination. Bare hands contaminate. Use gloves and/or tongs to pick up evidence.
          3. Secure the paper bag, envelope, or cardboard box with tape and/or staples.
          4. Complete the evidence log, and maintain the "chain of custody."
        3. When the allegation is a question of sexual abuse involving the possible exchange of bodily fluids, the OIG authorized facility investigator shall contact the appropriate law enforcement agency or OIG prior to the collection of any such evidence and then, unless directed otherwise, shall:
          1. Strongly encourage the victim not to shower or bathe, as this might destroy evidence which could be obtained during a medical examination;
          2. Collect the clothing of the victim and place each item in a separate paper bag;
          3. If the alleged sexual abuse occurred on a bed or other like item, roll the sheets together and place them in an appropriate container (e.g., large paper bag or cardboard box).
      3. When applicable, identify and separate accused staff and any potential witnesses until an initial written statement is provided or an interview can be done by an OIG authorized facility investigator.
      4. Copy and impound relevant documents, as appropriate.
        1. Original documents shall be impounded in cases such as suicides, deaths with questionable circumstances, and in any other cases for which the actual original documents themselves may be evidence in the investigation.
        2. Otherwise, copying documents is sufficient. If in doubt, the OIG authorized facility investigator shall consult OIG.
      5. 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.
      6. 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.
    3. Photographs
      1. Prior to photographing an individual, consent shall be obtained from the individual or their guardian.
      2. All photographs which are printed should be labeled as follows and listed on the photograph log. Write, in ink, on a label that is then affixed to the back of each photograph, identifiers including the following:
        1. Name of area/object or victim;
        2. Location of the area/object or injury;
        3. Date and time of the photograph;
        4. Name of the person taking the photograph; and
        5. OIG case number, when known.
        6. Number photographs in series (e.g., 1 of __, 2 of __, etc.)
      3. Injuries: Whenever an allegation of abuse or neglect alleging an injury is received, the OIG authorized facility investigator shall photograph, or cause to be photographed, the site of the alleged injury whether or not the injury is visible.
        1. If an individual refuses to allow a photograph upon an allegation, the facility shall instead obtain a medical professional's thorough description of the injury documented on an Injury Report.
        2. 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.
        3. 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 facility 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.
        4. Photograph the area of the injury first with an item of standard size e.g., a ruler, dollar bill, or quarter) as a reference and then without that item; denote that on the photo log.
        5. 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.
        6. 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.
      4. Areas/Objects
        1. Prior to entering an incident scene which needs to be photographed, photograph the overall scene. This can be accomplished by taking a photograph immediately prior to entering the incident scene and from several different angles within the incident scene.
        2. When possible, photograph objects exactly as found, from different angles, and in the context of the scene. Photograph the object with a ruler or other standard-sized item placed next to the object as a reference to size.
    4. Diagrams
      1. In lieu of, or in addition to a photograph, the OIG authorized facility investigator may 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 investigator, time and date drawn and the area it depicts.
      2. When an OIG authorized facility investigator is conducting an interview of a person which concerns the placement of people or items, he/she may collect a diagram from each witness. This will not only assist in the recall by the interviewee, but will also aid as a comparison of one person's statement of location with others.
  3. Investigation: The OIG authorized facility investigator, or designated employee who has been trained in the OIG-approved methods to gather evidence and documents, shall conduct initial investigative steps, unless directed not to do so by OIG.
    1. Objectivity and integrity
      1. The facility shall ensure that there is the absence of real or apparent conflict of interest or bias by the OIG authorized facility investigator, or designated employee who has been trained in the OIG-approved methods to gather evidence and documents.
      2. 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 facility.
      3. Under no circumstances is an interview to be conducted by an OIG authorized facility investigator who is from or supervises the unit or office where the incident occurred or who is in the same collective bargaining unit as the person(s) involved.
    2. Interviews for written statements
      1. Statements and interviews
        1. When possible, all witnesses shall be separated until an initial statement can be taken.
        2. In addition to initial written accounts that may be required of staff present at the time of an alleged incident, OIG authorized facility investigators shall conduct interviews for the purpose of obtaining detailed written statements.
        3. Any person having knowledge about the allegation or the incident shall be interviewed.
        4. Under no circumstances should an investigatory interview be conducted by any employee other than an OIG authorized facility investigator.
      2. Conducting an interview
        1. Ideally, an interview and written statement should be obtained immediately upon the report of an allegation, or as soon after as is possible.
        2. Interviews shall occur in a location that is quiet, private and free from distractions.
        3. 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.
      3. Representation during interviews:
        1. If an interviewee is represented by AFSCME Council 31, the OIG authorized facility investigator must advise him/her of his/her right to have a union representative present during the interview. If the interviewee indicates their choice is to have a representative, then the interview cannot proceed without the presence of the representative.
        2. For any other interviewees, they may choose to request representation at an interview, and that representation will be granted 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 investigator denies the request, when the interviewee has expressed reasonable grounds to believe that the interview will be used to support discipline against him or her, the employee's statement may not be used in any subsequent disciplinary proceeding against that employee.
        3. The authorized representative or designee that employs the interviewee does not have the right to be present at an investigative interview.
        4. No person, including the union representative, has the right to interfere in or obstruct an investigatory interview.
    3. Investigatory materials: When OIG requests documents related to an investigation, the OIG Liaison or OIG authorized 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.
    4. OIG non-reportable incidents: Each authorized representative shall ensure that a central file is maintained and secured on all OIG non-reportable incidents. Each OIG non-reportable incident should be fully investigated by the facility. At a minimum, each case file is to contain a copy or copies of:
      1. Full documentation of the incident,
      2. A description of follow-up through committee review(s),
      3. A detailed account of the actions taken,
      4. Measure(s) to be taken to protect the alleged victim(s), and
      5. A statement of the outcomes.