Department of Human Services - Office of the Inspector General
JB Pritzker, Governor
Grace B. Hou, Secretary
Peter B. Neumer, Inspector General
DHS Facility Investigative Protocol for Calendar Years 2020 & 2021 (Amended)
DATE ISSUED: 12/24/07
REVISION DATE: 10/26/10, 11/15/11, 10/30/13, 02/10/20, and 01/07/21
CLASSIFICATION LEVEL: UNCLASSIFIED
To establish a uniform protocol for DHS-operated facilities to follow when conducting preliminary investigative work on allegations of abuse, neglect, financial exploitation and deaths.
II. AUTHORITY AND POLICY
- Section 1-17 of the Department of Human Services Act (20 ILCS 1305/1-17)
- Section 6 of the Abused and Neglected Long Term Care Facilities Residents Reporting Act (210 ILCS 30/6)
- Section 3-210 of the Mental Health and Developmental Disabilities Code (405 ILCS 5/3-210)
- 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/)
- Privacy Provisions under the Health Insurance Portability and Accountability Act (HIPAA) found at 45 C.F.R/ Parts 160 and 164
- Substance Abuse Confidentiality (42 CFR 2)
- Personal Information Protection Act (815 ILCS 530)
- 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"
A. Facility Investigator Designation Process
- Each authorized representative must designate at least two full-time employees as facility investigators.
- In order to receive OIG authorization, a facility investigator must take the Rule 50 training module, the OIG 50.30(f) training module and the OIG Investigative Steps training session.
- To maintain their investigative authorization, a facility investigator must retake the trainings listed in (b) above every two years. The expiration of a facility investigator's authorization coincides with their Investigative Steps training anniversary date.
B. Failure to Maintain Renewal Training
- If an OIG-authorized facility investigator fails to fulfill his or her ongoing training requirements, OIG will suspend his/her authority to perform investigative functions at the facility. If an OIG-authorized facility investigator does not complete the OIG Investigative Steps training class for a period of six months while under suspension, OIG will expel the investigator from the program.
- If expelled from the program, the facility investigator must repeat the training requirements for authorization and re-apply for authorization.
C. Investigative Authorization
The authorized representative must submit the name of each employee the authorized representative designates to be an OIG-authorized facility investigator, as well as each employee's job title, responsibilities, training dates and supervisor's name..
- The authorized representative must sign the original form and scan it to DHS.OIG.Protocols@illinois.gov
- Once OIG receives the application, OIG will approve or deny the authorization request for each proposed investigator.
- If approved, investigative authorization is for the stated protocol period.
- The facility must submit a renewal Protocol Authorization form to OIG before the start of each two-year protocol period.
- The application requires the authorized representative's signature which signifies the facility agrees that this investigative protocol governs all the facility's investigative activity under Rule 50.
- OIG retains the right to remove an investigator's authorization for cause, as determined by OIG.
- Only OIG authorized facility investigators may conduct investigatory interviews. All other 50.30(f) trained employees (see Sections E & G below) may only complete the preliminary investigative steps, as outlined in Rule 50, Section 50.30(f).
D. Prohibited Persons
- Due to potential conflicts of interest, OIG will not approve the following persons as facility investigators for investigations of alleged abuse/neglect or death:
- The Authorized Representative(s),
- The assistant facility director (s),
- The assistant hospital administrator(s),
- Personnel staff,
- Labor relations staff,
- Any family member of the above,
- Employees with a substantiated abuse/neglect finding against them within the past three years,
- The accused or a witness to the allegation, or
- Any other person whom OIG determines has a potential conflict of interest.
- OIG shall make the final determination regarding qualifications and authorizations of facility investigators.
- If the facility wants to add employees as Facility Investigators after the facility's protocol is approved, the facility must request the appropriate training from OIG and apply separately for those staff to receive investigative authorization.
- If an authorized investigator's job title and/or responsibilities change, the facility must notify the OIG Protocol Coordinator at DHS.OIG.Protocols@illinois.gov. The facility must ensure that there is no actual conflict or appearance of a conflict of interest for any employee who is to (a) function as an OIG-authorized investigator, or (b) assist with the preliminary steps of the investigation as outlined in Rule 50, Section 50.30(f).
E. OIG Liaison
- Each authorized representative shall designate one employee as the facility's OIG Liaison.
- The liaison must undertake mandatory OIG Rule 50 training and the OIG 50.30(f) training module before the authorized representative can designate them as the OIG liaison.
- The liaison cannot have a substantiated finding of abuse or neglect in the three years prior to their designation as the OIG liaison.
- If an employee is to be a facility's liaison and an authorized investigator, they must follow the above-listed training requirements for an investigator (See Section A & B above).
F. Approval for Training
The Facility Liaison will contact the OIG Bureau of Compliance and Evaluation for approval to receive any of the training modules noted above.
G. 50.30 (f) Designees
- An authorized representative can designate as many employees as they wish to act as 50.30 (f) designees but must ensure there is at least one 50.30(f) designee on each shift. 50.30(f) designees conduct the preliminary steps of the investigation, which includes obtaining witness statements. However, 50.30(f) designees are prohibited from conducting investigatory interviews, unless specifically authorized by OIG.
- The 50.30(f) designee must successfully complete the OIG online Rule 50 training module and the OIG online 50.30(f) training module. A 50.30(f) designee must repeat the 50.30(f) training module every two years to maintain eligibility.
NOTE: After completing the initial 50.30(f) designee training, the employee may conduct the preliminary steps of an investigation (i.e. ensuring victim safety, preserving physical evidence, assembling documents and collecting witness statements). However, OIG will only recognize the employee as an authorized investigator, capable of conducting investigatory interviews, after they take the OIG Investigative Steps training session.
H. Incident Management
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;
- Immediately initiate the facility's internal procedures when a medical emergency exists and ensure that 911 is also called;
- When law enforcement assistance is needed, immediately contact the law enforcement agency which would provide the most expedient response;
- In the event of any allegation of abuse or neglect or any situation where a victim's health is in question, notify the facility of its obligation to immediately seek appropriate professional medical attention.
- 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 should report to ISP or LLE when the situation requires an immediate police response. OIG must additionally be notified immediately of the report.
- Remove accused employee(s) from having contact with all individuals at the facility when there is credible evidence supporting the allegations of abuse pending the outcome of any further investigation, prosecution or disciplinary action against the employee.
I. Initial Response
Unless otherwise directed by OIG, the authorized representative shall also:
- a. Ensure that the preliminary steps of the investigation are initiated by an OIG- authorized facility investigator, or by employees who the facility will utilize to assist with the obligations and requirements of Rule 50, Section 50.30(f).
- Secure the scene of the incident, when appropriate, including cordoning off and preventing access to the area, as well as preventing the introduction of or removal of objects from the area where the incident occurred; Absent an explicit directive, nothing in the scene is to be disturbed (i.e., floors shall not be washed, furniture and other objects shall not be touched or moved, etc.). The facility is to consult OIG in the event there are any questions about how best to secure a scene.
- Secure 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 50.30(f) designee(s), shall do the following:
- Photograph and/or diagram the evidence prior to its collection.
- Collect all relevant evidence and place it in an appropriate container (e.g., a paper bag, an envelope, or a cardboard box).
- Be sensitive to evidence contamination. Use gloves and/or tongs to pick up evidence as bare hands can contaminate evidence.
- Properly seal the container to prevent contamination.
- Appropriately label the container with the investigation number, the date, time and location collected, and the name of the investigator that collected the evidence,
- Securely stow the container with a designated custodian in a controlled access environment; and
- Complete the evidence log and maintain the "chain of custody."
- With respect to sexual abuse allegations involving the possible exchange of bodily fluids, the OIG-authorized facility investigator shall immediately contact the appropriate law enforcement agency, or OIG, prior to the collection of any such evidence. If directed to do so by law enforcement or OIG, the investigator shall:
- Strongly encourage the victim not to shower, bathe, brush teeth or rinse out their mouth 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 alleged sexual abuse occurred on a bed, cot, mattress, etc., roll the sheets together and place them in an appropriate container (e.g., large paper bag or cardboard box).
- When appropriate, identify and separate accused staff and any potential witnesses until those individuals provide an initial written statement or an OIG-authorized facility investigator can conduct their interviews.
- Copy and impound relevant documents, as appropriate.
- The OIG-authorized facility investigator shall impound original documents in cases such as suicides, deaths with questionable circumstances, and in any other case for which the actual original documents themselves may be evidence in the investigation.
- Otherwise, copying documents is sufficient. If in doubt, the OIG-authorized facility investigator shall consult OIG.
- Maintain all collected evidence in a secure space, such as a locked filing cabinet, safe, locker, or room where access is limited. The OIG-authorized facility investigator is to maintain and document the chain of custody 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 possible to the OIG or law enforcement entity responsible for the investigation.
- Prior to photographing an individual, the OIG-authorized facility investigator shall obtain consent from the individual or their guardian.
- The OIG-authorized facility investigator should take digital photos with a State camera or cell phone. Digital photos must be transferred to OIG as electronic files.
- The OIG-authorized facility investigator shall complete a photo log noting the following information:
- 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 of photographs in the series (e.g., 1 of 2, 2 of 2, etc.)
- Injuries: Whenever a facility receives an allegation of abuse or neglect alleging an injury, 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.
- If an individual refuses to allow a photograph, the facility shall instead obtain a medical professional's thorough description of the injury, documented in an Injury Report.
- Upon receiving consent, the OIG-authorized facility investigator should take an identifying photograph showing the injury, along with the identity of the injured person in the same photograph; and document on the photo log as denoted above.
- The OIG-authorized facility investigator should consider the individual's privacy in all photographs. No photograph shall be taken of the genital area, or a female's breast(s), 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 as to who will photograph these injuries, due to the personal/sensitive nature of these photographs, OIG recommends that a medical professional take the photos if possible. A witness should be present during the photo session, preferably of the victim's choosing.
- 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 the measuring tool used in the photograph 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 the timing of the photo on the photo log.
- If an alleged injury is not visible immediately, the OIG-authorized facility investigator should make subsequent checks of the injury site at reasonable time intervals. If the injury does become visible, the OIG-authorized facility investigator should cause photographs to be taken of the visible injury. The OIG-authorized facility investigator must note the date and time of the subsequent photographs.
- Areas/Objects: Prior to entering an incident scene which needs to be photographed, the OIG-authorized facility investigator should photograph the overall scene. To do this, take a photograph immediately prior to entering the incident scene and from several different angles within the incident scene.
- 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. Context of the scene means there should be a constant item which is permanently affixed to the wall, or a structural part of the room, which is visible in the background of every photo taken.
- 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 and shall include the name of the investigator, time and date drawn and the area it depicts.
- 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 the interviewee's recall but will also help compare the interviewees' respective versions of events.
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.
M. Objectivity and Integrity
- The facility shall ensure that there is no real or apparent conflict of interest or bias by the OIG-authorized facility investigator(s), or the 50.30(f) designee(s).
- 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 has any other apparent, or perceived, conflict of interest.
- No person identified in the "prohibited persons" section shall engage in the following activities:
- conduct or participate in the investigative interviews of victims, witnesses or subjects;
- coerce investigative interviewees to modify their testimony;
- inappropriately disseminate or communicate confidential investigative information.
However, notwithstanding the above-listed restrictions, this Protocol does not restrict or prohibit authorized representatives from taking action to protect residents or patients in accordance with or as required by the Illinois Department of Public Health (IDPH) to ensure compliance with Intermediate Care Facility Providers for Developmental Disability (ICF/DD) standards, including but not limited to: (a) 42 CFR § 483.420, Condition of participation: Client protections; and (b) State Operations Manual Appendix J - Guidance to Surveyors: Intermediate Care Facilities for Individuals with Intellectual Disabilities.
N. Interviews for Written Statements
- When possible, the OIG-authorized facility investigator should separate all witnesses until he or she can take their initial statements.
- In addition to taking initial written statements from witnesses to an alleged incident, OIG-authorized facility investigators may also conduct investigatory interviews for the purpose of obtaining detailed accountings of the incident.
- The OIG-authorized facility investigator should interview any person having knowledge about the allegation or the incident.
- Under no circumstances should any employee other than an OIG-authorized facility investigator conduct an investigatory interview.
- To prevent any attempt of intimidation or threat of retaliation, no representative of the employer shall be present during an OIG interview.
- Conducting an interview
- The OIG-authorized facility investigator should obtain an interview and written statement immediately upon the report of an allegation, or as soon after as is possible.
- Interviews should occur in a location that is quiet, private and free from distractions.
- Every interview shall cover the elements of the offense as indicated in the OIG Investigative Steps training.
- The fundamental investigative questions of who, what, when, where, why and how must be addressed or answered in every investigation, at times through the interview process.
- Representation during interviews
- If an interviewee is a member of 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 they would like to have a representative present, then the interview cannot proceed without a representative. However, the representative may not be an accused or a witness in the matter under investigation.
- Non-AFSCME Council 31interviewees may request representation at an investigatory interview, and that representation will be granted if he or she articulates reasonable grounds to believe that the interview may be used to support disciplinary action against him or her for their actions concerning the incident under investigation. If the investigator denies the request and the interviewee has expressed reasonable grounds to believe that the interview will be used to support discipline against him or her for their actions concerning the incident under investigation, then 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.
- No person, including the union representative, has the right to interfere in, or obstruct, an investigatory interview.
O. 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 that would justify a delay. In such case, OIG will set a reasonable time frame for the documents to be submitted.
P. OIG Non-Reportable Incidents
The facility should fully investigate each OIG non-reportable incident. Each authorized representative shall ensure that the facility maintains and secures a central file on all OIG non-reportable incidents. At a minimum, each case file should contain a copy or copies of:
- All documentation of the incident,
- A description of follow-up through committee review(s),
- A detailed account of the actions taken by the facility,
- Measure(s) the facility will take to protect the alleged victim(s), and
- A statement of the outcomes.