Open to the Public
Thursday, April 10, 2014
McFarland Mental Health Center
901 Southwind Road
Springfield, IL 60327
MINUTES of QUALITY CARE BOARD MEETING
Present: Susan Keegan, Chairperson; Thane Dykstra; Ginny Conlee; Neil Posner; Inspector General Michael McCotter; Deputy Inspector General Robert Furniss; and Chris Milbrandt
Absent: Untress Quinn
Speakers: Bill Diggins, Bureau Chief, Central Investigations and Acting Bureau Chief, Southern Investigations
Deb DiLello, Bureau Chief, Compliance and Evaluation
Deb DiLello spoke first about the Bureau of Compliance and Evaluation (BCE). It oversees training for OIG staff, community facilities staff and also conducts site visits. She began with an overview of training. Last year we conducted 106 training sessions throughout the state with almost 2,000 participants. This year will be slightly less because we were down a trainer. We are going to geographically look at the state and our goal is to see where people need training. We have two trainers that do all of this. Deb stated she thought that the Board members would enjoy attending the training that we offer. Chairperson Keegan expressed interest in attending the training and doing unannounced site visits. Deb stated that Bill will talk about the Rule 50 training. The Basic Investigative Skills Training is held on two separate days. Then there is a refresher course. The classes are listed on the website. Chris will e-mail you the OIG training schedule.
Our main purpose is to provide training to prevent abuse and neglect. We have Rule 50. Over 1,200 people attended from the community agencies. It is required every two years by the statute. If you are an investigator or are in the protocol system, you have to attend the training from OIG.
The Basic Investigative Skills Training is about conducting investigations. It is a two-day course on interviews and report writing. It is very detailed. You have to be approved to attend. We also have a one-day refresher.
Some of the challenges we face are that we have two trainers for the whole state. We really try to move it around so they end up having to travel a lot. We reach out and try to be creative. We try to make sure we get as many people as we can to these trainings. A lot of agencies have gone to Webinar trainings. Why? It is hands-on and very interactive. Rule 50 is the only one that has Webinar potential.
We are always trying to improve things. The protocol system is only used in about 20% of the agencies. Other people still come to the training. Everyone is required by Rule 50 to have the preliminary investigatory training. We split the training into two distinct days. Day one is for anyone to come to. You wouldn't have to have a protocol to come to day one. The next day you can't come unless you have a protocol. Most people who have protocols attend both days. We have had a really good response from that. Protocol is when the agency says we are going to assist with the investigation. An agency has someone that has been approved to do investigations. They have to fill out an application. We have to say yes you are approved and yes you are appropriate to do investigations. It is only about 20%. We also train OIG staff.
Question: Who trains the trainer? Right now we don't have a train the trainer. They go to outside trainers. We bring in ISP for certain aspects of the investigations. We just updated the speaker notes. The Illinois Coalition of Sexual Assault wanted us to assist them so we added some of that to our speaker notes. We have real life situations. Everyone tries to help each other out. We bring in outside sources so we can see things in different ways.
Site visits are another thing that we do. Last year we did 16 site visits. We go out to the state operated mental health and developmental disability facilities. This year there is only 14 because two closed. We are getting ready to talk about what the issues are for next year that we might look at. We look at things that might be repeated throughout the case reports. We reach out to the bureau chiefs and clinical coordinators for any hot topics and the divisions for input. Last year we looked at issues such as bowel obstructions, choking, nursing care plans, emergency evacuation, equipment maintenance and supervisory issues. If there are systemic issues, we look at those as well. We check on previous year's findings to make sure they corrected it. This year we are looking at ulcers and skin issues, psychotropic medications, dental prevention and care, contraband, client observation monitoring, change in supervision levels, and drug free workplace to see if they are following DHS' and their own policies.
Question: Do you talk to the supervisors about their hiring practices and how they screen personnel in general? Last year we did supervisory training and then there was a massive retirement of state employees, an influx of employees and closing of facilities. People were angry. An assessment was required of their needs and training. Copies of an unannounced site visit report were distributed to the Board members. Chairperson Keegan thought it would be great if the Board members were copied on these as they are completed.
Chairperson Keegan stated the other thing we can do is reach out to another state. It is usually people outside our expertise that bring things that are new and invigorating. It would be interesting to know if any of the data from other states are available to see what states are showing the greater improvement in. Maybe in areas that are of concern to us. Is there something that they figured out? It would be good to know. You don't have to reinvent the wheel.
Bureau Chief Diggins distributed materials that are given out at Rule 50 trainings. Normally this is a four to five hour training. Due to time restraints, Bill is going to touch on the highlights.
Rule 50 gives OIG the authority to do investigations in state operated facilities and community agencies. This is the document that me and my staff use. We actually have the Rule, IL Administrative Code, Title 59, Ch. 1, Part 50. We can send you the link to that. It lays out the process of what abuse and neglect is, it lays out the process of how to report and record abuse and neglect, the process of investigations, and the investigative report. Community agency covers day training sites, CILAs, and outpatient MHCs. We conduct investigations that involve abuse and neglect when it involves an employee, an agency, and an individual receiving services. We would not investigate unless there is a component, a situation such as if two individuals are in a fight we might get involved because there may be a lack of supervision by staff. Client on client instances we don't investigate. We would refer it to the division.
Main definitions that are important:
Employee - Anyone that is on site under the direction of the agency or facility providing any type of services to a client that is there. It includes the owner of the agency, people not involved in the direct care, volunteers that come in, payroll personnel, contractors, and subcontractors. We essentially say if you have a long standing contract with someone who comes onto your grounds to provide transportation services, or they are there on a regular basis, they are an employee under Rule 50. They have to follow the rules in terms of reporting and they can also be the accused. What about contractors? In terms of the criminal background I think it is upon hire. There is also the HCWR registry checks which they have to do upon hiring. Now they have to do the checks every so often because we have run into situations where an employee works at two agencies and we do an investigation substantiating the registry and this other agency doesn't know about it. Now they are checking because we have run into situations where several months later we do an investigation and we see this employee. DD has mandated that so it covers that hole. There is no way to notify them? Of course you wouldn't know. They should have to check that registry before they hire someone.
Volunteers have to be background checked as well as contractual. DD has maintained HCWR checks upon hiring and they check it periodically on an ongoing basis. BQM and DD are really looking into this and making sure it is being done.
Another thing we are really looking at is when someone is defined as an employee they are considered a required reporter of abuse and neglect. They are required to report allegations of abuse and neglect and they are required to ensure it is reported to OIG within four hours. That not only includes agency personnel and state operated facility personnel, but OIG and Division/PASS agency personnel that work with agencies for the individuals with DD that are required to report. We have expanded the definition of employee just to make sure we cover everyone that could possibly be outside that could see something or be a potentially accused. When we define someone as an employee, it gives them a requirement to cooperate with us in an investigation. Once they quit or are no longer an employee, we do not have jurisdiction and they don't have to talk to us. That is why the definition of an employee is so important in what we do. It is part of contract law, but it is the statute. If they are getting money from DHS, the agency is contracted with DHS, and the employee works for an agency, it follows services. It is established by contract, law and our statute. We don't recommend discipline. Our recommendation is sent to the agency. Essentially it is a written response, or a plan of correction, where they detail what they are going to do about the situation that we investigated. It also ensures that the Divisions of DD and MH of DHS know what is going on and OIG knows what is going on. We look at DD and MH as the contracting agency. In terms of most agencies we deal with, there are always problem agencies, but most are receptive and proactive. If they disagree with a finding, there are appeal rights and we will work with the agencies.
In HCWR cases, we say they have to be terminated. Employees are mandated reporters of allegations of abuse and neglect. We tell agencies that screening, delaying and holding of reports is prohibited. We tell them because of the populations we serve and protect. There are people that will make false allegations, but they still have to report the allegations. They don't have any wiggle room if it meets the definition of abuse and neglect.
There are different types of late reports. A number of years ago when the legislature looked at our reports, they didn't like it. They said it didn't matter if a report is late, we still have to site them. It doesn't matter if it is one minute late, 15 minutes late, four hours late. It is late. The agencies are aware of it.
Every month we send out a report on late reporting. Agencies do follow-up with it. There are times when we make a mistake in the database and we correct it. The more time that goes from the time of the incident, the time it is reported, the more memories that are lost, and evidence is degraded. Memories are faded. Getting it reported at least gets it documented quicker and then the agency can take some action. Question: When does the four hour clock start? As soon as that first employee becomes aware of it. If there is a direct care staff in a home at 1:00 a.m. and they learn of an allegation of abuse and neglect, the agency has until 5:00 a.m. to call it in.
We go into how to report the allegations. We have the 800 # posted in CILAs, DT sites. The information is accessible to clients, staff, and families so they know how to report to OIG. During the day we have the intake unit. After hours we have the answering service that takes the calls. They are aware of the confidentiality. Me, as a bureau chief, is on call 24/7.
The different definitions of the allegations: Physical abuse, mental abuse, sexual abuse, and financial exploitation are pretty straight forward. These are what we base our investigations on. The way they are broken down. We call these elements. We have an incident which we investigate and have to prove it occurred. Sometimes we prove that an incident occurred, but why did you unsubstantiate it? We may have an incident of contact between a client and staff, but didn't have enough evidence to indicate it was inappropriate.
In terms of Rule 50, the agencies and facilities have to have a policy of how to report allegations of abuse and neglect. Agencies can have an internal reporting procedure where it goes to a sectionalized person before it comes to OIG. Others may have employees that are expected to call OIG directly themselves. As long as we are getting the information we need and it is within the four hours, it is up to the agencies how we get the information. When they create or amend their policies, they have to send them to OIG.
Rule - They have to go through it every two years. We try to get the managers/supervisors of agencies to go through our version every two years. We provide the agencies with the plan on how to train also. We also want to make sure all of the evidence is secured within a certain amount of time, but the overriding thing when there is an allegation of abuse and neglect is that the individuals involved, even employees, are safe and taken care of. Health and safety is the most important thing.
With Rule 50 and the statute, OIG has been granted an exemption from HIPAA. It means when we get this information, we have to follow HIPAA rules with the files and during the course of the investigation as well. We have to secure the information and maintain confidentiality.
Our investigators use a preponderance of evidence. That means 51% of the credible evidence. We don't stop when we hit 51%. We would like to have clear and convincing.
We have three findings: Substantiated, Unsubstantiated and Unfounded.
Substantiated means there is some credible evidence. Question: Do you always have to have some specific person to name or can you substantiate something without naming the person? With physical abuse, you have to name an employee. With neglect, we have cited substantiated against an agency or a facility. With neglect you might find a system failure that led to the inappropriate care. When it comes to sexual abuse, mental abuse, physical abuse, we do have to have an employee. If we can't name an employee, we can't substantiate abuse. Even though we can't substantiate, or we don't substantiate, we have our recommendation process. We are always looking at prevention. We have a recommendation process to help ensure the safety of the individual. We have a letter that specifically states just because we have stopped our investigation doesn't mean that you can't continue. There are policy and training issues you need to look at.
Thane stated it can be a little challenging sometimes from the perspective from once you board. You have to be careful because you can't contaminate the investigation as a provider. You have to step aside which makes it tough. Sometimes an investigation takes a long time. Actually might even change what I might do as an administrator because based on what I saw I may have terminated the person in real time, but now the person has been working six months later. Bureau Chief Diggins pointed out that you as the employer, if you see something, we are not going to tell you not to terminate based on what you see. Thane stated but it is because I had to stop investigating. Also, if you are seeing other issues, you can call me and say I am seeing these other issues. If it doesn't have anything to do with what we are looking at, I may say go ahead with that concurrent non-abusive neglect issue. We know if there are other issues you can take care of, it may prevent other situations from arising. That is where conversations with the bureau chief are good. The investigators can only say so much. If you ever have more questions, give me or DIG Furniss a call and we can work with you. If it doesn't impact the investigation we can give you guidance. We try to work with the agencies and understand it is a burden for the agencies.
After there is a report issued, we send out letters to the agency, the accused and the victim, or their guardian, informing them of the finding. If it is substantiated, the agency gets a copy of the report, as well as the accused. The guardian can FOIA the information. They have a right to reconsideration or request clarification of a finding. They fill out a form that comes with the report requesting reconsideration or clarification. It then goes through a review process within OIG. Physical abuse, sexual abuse, and egregious neglect get referred immediately. Once it's approved by the IG, the registry process starts. That process is handled by BCE. After we send a letter to the accused, they also send a letter to the accused initiating the process. There are appeal rights that the accused have to prevent from being put on the registry. Once a person is on the registry over six months they have the ability to ask that their name be removed. They have the burden to prove that it is in the interest of the public that their name be taken off. They have to be able to show that they have done something to better themselves. They have gone back to school, gone to a psychologist, etc. Just because they come off of the registry doesn't mean they will be hired because it is on their record as being terminated. They can come off of the registry if they show good cause. Question: Does that happen? Come off of the registry? It doesn't happen a lot. DIG Furniss explained that we have had a situation where someone was called over to help another person apply a direct hold on an individual and they instinctly reacted to something by shoving and knocking the individual down and were put on the registry. This person was attempting to go to nursing school and worked with children's organizations. It was pretty solid. We still have to substantiate self-defense physical abuse. If they don't appeal at the front end, then they go on and later apply for a job and realize they are on it. We are not the final arbiter. It still goes in front of the administrative law judge. We will do an investigation into what they say they did and verify and make a recommendation and the ALJ will make the final determination. Question: So they don't know they were on the registry? No. DIG Furniss is not aware of anyone being taken off of the registry for sexual abuse.
Chairperson Keegan requested a list of training times and site visits. IG McCotter stated that we cannot give out the site visit information. Correspondence was sent to the Board members stating it wasn't feasible. Neil requested the document that prohibits them from attending. Chris will send the QCB members a list of training times and dates.
1. Request for additional staff update
IG McCotter stated that he put in a request for 10 investigators and five administrative staff to be implemented throughout the state. Secretary Saddler approved our request. We didn't hear anything for a while and then started hearing about budget cuts. Day before yesterday I came down for a House Appropriation meeting and they specifically asked about our request. Secretary Saddler stood up and told Rep. Harris why we needed the staff and about our caseload. Everybody approved it. The next meeting is the Senate Appropriation hearing on April 29th.
2. Governor's Budget Address - Impact on OIG
They are talking about hiring about 1,000 people for DHS. All I want is 15. We are getting to the critically short stage right now. People have been out for medical and disciplinary reasons. I have asked Bill Diggins to oversee the Southern Bureau. He is covering two bureaus right now. We have an Acting Bureau Chief down there right now. Otherwise, we are going to be where we were two years ago. It is because of the sheer volume.
We have to go through an exercise every time we go through this. They ask us how we would function with a 15% and 20% cut. I told them we would have to pretty much close the doors. We would have to lay off eight investigators. Thane stated we are doing a pilot study where we are now submitting unusual incidents to BQM. All PASS agencies have to follow up within some specified time frame. There is no way that will not impact OIG reports. Any time someone elopes, you will be seeing that to make a determination. Then the second thing I think will increase reporting is that right now there is the work group going on about the role of PASS agencies. The monitoring agencies. Right now they are doing quarterly visits and so there is this work group talking about transforming this which might also require them doing monthly visits. I don't tell you this to discourage you. This might help with your justification for additional staff, not that you need any.
We aren't even taking in attrition. We have people on the edge ready to go. We have one vacancy and we lost someone today to retirement. We have had pretty good luck hiring people recently. In Metro and Cook, the busiest bureau, they each had a vacancy and due to some medical problems in the Cook County area, there were two experienced investigators for about six months. Question: How long does it take to get someone ready? We have a person we just hired at Chester who was the Internal Security Investigator at Chester. He brought considerable skills to the job. It was about a month. Even if we are able to get these new investigative staff, we are going to have to try to ease them in. It means that the experienced staff are going to have to train the new staff. There will be a dip before the numbers turn to go back. We submitted a hiring plan where we want to hire two or three per month because you can't have everyone in training at once. In the central and south, we were lucky to be able to bring staff back contractually. I think we were able to bring them back for 75 days. In the north we don't have anyone we can bring back.
3. Review any revisions to the investigative directives for the OIG, per the January 2014 meeting minutes
Directives - Lois does our legislative work. We have a Bill pending before the House that was taken over by the Speaker. She had to spend time on the Bill. This process is not complete. I hope within at least four to six weeks that we can get them out. We are trying to streamline the process. A number of years ago, due to audit findings, there were certain procedures and deadlines put in place to make the cases get done faster. Unfortunately the opposite happened. One of the requirements was that the investigative plans had to be completed in three working days. We started getting audit findings on that. We would say yes, but the case was completed in 25 days. What do you want? The investigative plan is generated by Intake. To me, why are you then creating an investigative plan where you say you are going to go interview them anyway? Question: You are saying you use the Intake sheet as your investigative plan? Basically yes. Question: So why can't you just turn it in? In other words take those names and … photocopy onto a big sheet of paper … incorporate the information … DIG Furniss stated you can, but the process is that it goes back and forth. BC to the investigator, investigator back to the BC. To me it is a waste of time. Chairperson Keegan stated that It doesn't matter if the plan changes as long as you make it your plan. Neil had a question about the discussion and it was mentioned that this is a directive that we came up with. Chairperson Keegan suggested we just get rid of it. Chairperson Keegan asked if that is the only one. It is mostly just clean up. Some of these haven't been revised since 2003. After the session is over, they will be done.
4. Review any revisions to policy and protocols for investigations of alleged abuse and neglect per the Quality Care Board statutory mandate.
IG McCotter was just at a hearing on this yesterday. It occurred to us that people weren't just taking their property, they were stealing their money. It was our feeling that if you are going to take that kind of advantage of more or less the helpless in this realm you don't have any business working here. There is no monitoring limit of this. We want to make Financial Exploitation registry reportable. In substantiated cases we were shocked to discover that in substantiated cases the average amount was about $1,800. Worst example was a facility director took $5,000 from clients under the guise of planning excursions. IG McCotter went down to the judiciary committee and they asked him one question. Why do you think it is necessary to place them on the registry? IG McCotter stated because we want to conform with Aging. We want an avenue so we can punish these people. It passed 16 - 0. There is no limit.
Another thing we are contemplating is that we feel that the majority of the mental abuse cases should be handled administratively by the agency. It is the vast majority of cases where people will say something that they shouldn't have said. In the course of the investigation our person will ask how did that make you feel? Well, I felt really sad for the rest of the day. It is a substantiated allegation. No one should be talking to our clients like that, but the fact is the idea that we are going to send an investigator out to spend 60 days investigating this case. We are working with someone to see if there is some way we can refer these cases to an agency under our discretion. These are maybe 5% of the cases that we see.
The other area we are looking at is physical abuse because there are a lot of cases involving very minor physical contact. A client will come up and spit in someone's face and they will shove them. The client wasn't hurt, didn't fall down. Is that appropriate? Absolutely not. I'm not saying we wouldn't investigate the case. We are exploring whether there should be reportable incidents of physical abuse that go to the registry and then another area of things that shouldn't happen in physical abuse, but shouldn't necessarily go to the registry. It is a tricky area because suddenly we are becoming judge and jury.
I don't think there is a skillful enough way to do it. There was discussion regarding wishing there was a way you could tell the person that there are mitigating circumstances and you are not recommending they be put on the registry in cases that go to an ALJ because they decide whether the person should be put on the registry. Question: What is your role at the hearing - prosecutor or witness? Just to clarify, the ALJ is not there to determine if our finding is correct. The ALJ is to determine whether the conduct warrants placement on the registry. Question: Does the ALJ have to have your findings? Yes. The findings do not change. Question: Does the ALJ have discretion to accept or reject them? No. The findings stay the same no matter what. The ALJ determines does this person go on the registry or not. In cases where they don't, the ALJ is ruling the name not be sent to the registry. The person still has a substantiated physical abuse finding against them on the registry. They are free to be hired by anybody.
We have had a lot of discussion beforehand about cases we think probably shouldn't go to the registry. IG McCotter has the final say. We have a pretty good idea that we are going to stipulate. They have to file an appeal first. Our role in those hearings is that we help the person on our legal staff prepare for the hearing. At the end, our investigator will be called to testify as a witness. We feel that we are at a disadvantage. Frequently these cases will come up months and months after the actual incident took place. Clients, who were excellent witnesses and could corroborate what happened, are frightened to go into a courtroom. People will change their stories. DIG Furniss stated he feels that the statements we took are more reliable than when we put them on the stand. In situations where bad physical abuse occurred, clients have told us they really don't want the person to lose their job.
The mental abuse situation would drastically reduce our caseload. Last year we had 600 mental abuse cases. No more than 525 of them were cases in which should be handled administratively. Neil stated that you are estimating that 90% of those cases should not necessarily be rising to the level of ALJ. In cases that involve an agency that has an investigative protocol, we almost always refer to the agencies unless there is serious mental abuse. I think if they could see the kinds of cases that we get, there is a great deal of difference in dealing with these individuals.
The timing is good because of this incident reporting. There is definitely more oversite. Our legislative person, Lois, would also be working with legal staff. We will have to be very careful they would not sound so bad on paper and come to find out that this is worse than we thought. Question: Is your feeling that it has to be a legislative fix and not on the administrative level? It would have to go through JCAR (Joint Committee on Administrative Rules.)
AT THIS POINT, THE "MEMORY FULL" MESSAGE CAME ON THE TAPE RECORDER. FROM THIS POINT ON THE MINUTES WERE NOT RECORDED. THEY WERE ONLY TAKEN IN SHORTHAND BY ME, CHRIS MILBRANDT.
5. Schedule a Board participation or observation of a training activity per the Quality Care Board statutory oversight.
6. Schedule Board participation in an facility inspection per the January meeting discussion.
7. Review current policies concerning methods for improving the intergovernmental relationships between the OIG and other State and federal offices.
I am not sure what the current policies are. We only have a couple. Question: Could we get copies of those? ISP and IDPH - Chris, send copies to the Board. They had cited OIG that when you referred a case to ORS that there was follow-up. Do you see that with Rule 50? There could be. Now the person is connected directly to some provider and they decide if they will receive services. I can see there might be areas. Chairperson Keegan stated that we just want to make sure.
We do have an issue where we have a person on a registry reportable case who beats a man in restraints. Two of the men involved appealed their charges. They decided that what they would do is give them a big suspension and bring them back to work. Our registry process doesn't begin until everything is exhausted. This person should be in jail. They made a deal that time served and brought him back. We sent him a letter that he is on the registry. He is back at work. We are meeting with Labor Relations. If an arbitrator rules that there was insufficient cause then the finding can change because they can't bring him back because he still has a registry reportable case.
Question: Have these employees been put on the registry? One is going to go through the hearing process. The hospital administrator took him away from patient contact.
Question: Do you have a right of appeal? I think we can appeal her decision. I think it is pretty weak. I recognize that this guy has a letter saying he is going to get his job back. We are going to have to enter into some kind of letter of agreement with him.
The guy who administered the beating resigned. The man who did nothing and held the man down Labor Relations said they didn't know if they could get anything to stick.
Chairperson Keegan stated to send them the information and the Quality Care Board will write a letter.
8. Approval of January 9, 2014 meeting minutes
Motion to approve the minutes with Thane's amendments - Ginny
Motion seconded - Neil
All in favor - Minutes approved with Thane's amendments
9. Miscellaneous issues/questions
Next Quality Care Board meeting is July 10, 2014 at 2:00 p.m. by video conference. Neil is at 191 North Wacker, Chicago. Chris Milbrandt is at McFarland MHC, 901 Southwind Road, Springfield.
Motion to adjourn the meeting by Neil. Motion seconded by Ginny. Meeting adjourned at 4:10 p.m.